Form 8-K
8-K — BrightView Holdings, Inc.
Accession: 0001104659-26-075744
Filed: 2026-06-18
Period: 2026-06-12
CIK: 0001734713
SIC: 0700 (AGRICULTURE SERVICES)
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 — tm2618044d1_8k.htm (Primary)
EX-10.1 — EXHIBIT 10.1 (tm2618044d1_ex10-1.htm)
EX-10.2 — EXHIBIT 10.2 (tm2618044d1_ex10-2.htm)
EX-99.1 — EXHIBIT 99.1 (tm2618044d1_ex99-1.htm)
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GRAPHIC (tm2618044d1_ex99-1img02.jpg)
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8-K (Primary)
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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): June 12, 2026
BrightView Holdings, Inc.
(Exact name of registrant
as specified in its charter)
Delaware
001-38579
46-4190788
(State or other jurisdiction
of incorporation)
(Commission File Number)
(IRS Employer Identification
No.)
980 Jolly Road
Blue Bell, Pennsylvania 19422
(484)
567-7204
(Address, including zip code, and telephone
number,
including area code, of registrant’s principal executive offices)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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, $0.01 par value
BV
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.
Credit Agreement Amendment
BrightView Holdings, Inc. (the “Company”),
its wholly-owned subsidiary, BrightView Landscapes, LLC (the “Credit Agreement Borrower”), the other credit parties party
thereto, the lenders or other financial institutions or entities party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent
and Collateral Agent (the “Agent”), entered into Amendment No. 11 to the Credit Agreement dated as of June 17, 2026
(the “Credit Agreement Amendment”), which amends the Credit Agreement, dated as of December 18, 2013, by and among the
Company, the Credit Agreement Borrower and the lenders or other financial institutions or entities from time to time party thereto and
the Agent to, among other things, extend the maturity date of the Company’s seven-year Term Loans through June 17, 2033.
The foregoing description of the Credit Agreement
Amendment does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Credit Agreement Amendment
filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Receivables Financing Agreement Amendment
On June 12, 2026, BrightView Funding LLC (the
“Receivables Facility Borrower”) and BrightView Landscapes, LLC, affiliates of the Company, entered into the Sixth Amendment
to the Receivables Financing Agreement (the “Receivables Facility Amendment”), which amends the Receivables Financing Agreement,
dated as of April 28, 2017, by and among the Receivables Facility Borrower, BrightView Landscapes, LLC, as initial servicer, PNC
Bank, National Association, as administrative agent and letter of credit bank, PNC Capital Markets LLC, as structuring agent, and the
persons from time to time party thereto as lenders and letter of credit participants and acknowledged by the Company as performance guarantor
(as amended, the “Receivables Financing Agreement”).
Under the terms of the Receivables Facility Amendment,
the Receivables Financing Agreement was amended (as so amended, the “Amended Receivables Financing Agreement”) to, among other
things, extend the Scheduled Termination Date (as defined in the Receivables Financing Agreement) to June 12, 2029.
The foregoing description of the Receivables Facility
Amendment and the Amended Receivables Financing Agreement do not purport to be complete and are qualified in their entirety by reference
to the full text of the Credit Agreement Amendment and the Amended Receivables Financing Agreement, which are filed as Exhibit 10.2
to this Current Report on Form 8-K and are incorporated herein by reference.
Item 2.03.
Creation of a Direct Financial Obligation or Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth under Item 1.01 is incorporated
by reference into this Item 2.03.
Item 7.01. Regulation FD Disclosure.
On June 18, 2026, the Company issued a press
release describing the Credit Agreement Amendment and the Receivables Facility Amendment. The press release is furnished hereto as Exhibit 99.1.
This information is furnished pursuant to Item
7.01 of Form 8-K. The information in this Item 7.01 and in Exhibit 99.1 hereto shall not be treated as filed for purposes of
the Securities Exchange Act of 1934, as amended. The furnishing of the information in Item 7.01 is not intended to, and does not constitute
a representation that such furnishing is required by Regulation FD or that the information in this Item 7.01 is material information that
is not otherwise publicly available.
2
Item 9.01.
Financial Statements and Exhibits.
Exhibit
Number
Description
10.1
Amendment No. 11 to
Credit Agreement, including Annex A thereto, the Credit Agreement, dated as of June 17, 2026, by and among
BrightView Holdings, Inc., BrightView Landscapes, LLC, each of the other credit parties thereto, the lenders or other financial
institutions or entities party thereto and JPMorgan Chase Bank, N.A. as Administrative Agent and Collateral Agent.
10.2
Sixth Amendment to the
Receivables Financing Agreement, including Exhibit A thereto, a marked version of the Receivables Financing Agreement, dated
as of June 12, 2026, by and among BrightView Funding LLC, as borrower, BrightView Landscapes, LLC, as initial servicer,
and PNC Bank, National Association, as lender, letter of credit bank, letter of credit participant and administrative agent.
99.1
Press Release of BrightView
Holdings, Inc., dated June 18, 2026
104.1
Cover Page Interactive
Data File (embedded within the Inline XBRL document).
3
Signatures
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
BrightView Holdings, Inc.
Date: June 18, 2026
By:
/s/ Jonathan M. Gottsegen
Name:
Jonathan M. Gottsegen
Title:
Executive Vice President, Chief Legal Officer and Corporate Secretary
4
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2618044d1_ex10-1.htm · Sequence: 2
Exhibit 10.1
[EXECUTION
VERSION]
AMENDMENT NO. 11 TO CREDIT AGREEMENT
AMENDMENT NO. 11 TO CREDIT AGREEMENT,
dated as of June 17, 2026 (this “Amendment”), among BRIGHTVIEW HOLDINGS, INC. (f/k/a GARDEN ACQUISITION HOLDINGS, INC.)
(“Holdings”), BRIGHTVIEW LANDSCAPES, LLC (f/k/a The Brickman Group Ltd.
LLC), a Delaware limited liability company (the “Borrower”), each of the other Credit Parties party hereto, each of
the lenders that is a signatory hereto and JPMORGAN CHASE BANK, N.A. (in its individual capacity, “JPMorgan”), as Administrative
Agent (the “Administrative Agent”) and Collateral Agent.
W I T N E S S E T H:
WHEREAS, the Borrower, Holdings,
JPMorgan, as the administrative agent and collateral agent, and each lender from time to time party thereto (the “Lenders”)
have entered into a Credit Agreement, dated as of December 18, 2013, (as amended, restated and amended and restated prior to the
date hereof, the “Credit Agreement”) (capitalized terms not otherwise defined in this Amendment have the same meanings
as specified in the Credit Agreement);
WHEREAS, the Borrower, Holdings,
the Administrative Agent, JPMorgan and each other Lender party hereto (together with JPMorgan, the “New Term Loan Lenders”),
desire to extend credit to the Borrower in the form of new term loans made by the New Term Loan Lenders pursuant to Section 2.14(c) of
the Credit Agreement in an aggregate principal amount of $738,000,000 (the “New Term Loans”) on the date hereof to
replace the existing Term Loans under the Credit Agreement (the “Existing Term Loans”);
WHEREAS, the Borrower will use
the proceeds of the New Term Loans to repay in full the Existing Term Loans outstanding immediately prior to the Amendment Effective Date
(as defined below) together with all accrued and unpaid interest thereon (the “Payoff”); and
WHEREAS, the Administrative
Agent, the Borrower, Holdings and the New Term Loan Lenders (which, immediately upon the Payoff, constitute Required Lenders) are willing
to extend the New Term Loans and to amend the Credit Agreement pursuant to Sections 2.14(f) and 13.1 of the Credit Agreement, subject
to the conditions set forth herein.
NOW, THEREFORE, in consideration
of the premises and for other good and valuable consideration, the sufficiency and receipt of all of which is hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. New
Term Loan Lenders. Each New Term Loan Lender hereby agrees, severally and not jointly, on the terms and conditions set forth herein
and in the Amended Credit Agreement, to make a New Term Loan under the Amended Credit Agreement on the Amendment Effective Date, in accordance
with Section 2.14(c) of the Credit Agreement, in an aggregate principal amount set forth opposite its name under the heading
“New Term Loan Commitment” on Annex C hereto. Immediately upon the Payoff, for all purposes under the Amended Credit
Agreement, (a) the New Term Loans shall constitute Initial Term Loans and cease to be New Term Loans, (b) each New Term Loan
Lender shall constitute an Initial Term Loan Lender and cease to be a New Term Loan Lender and (c) any Lender (other than a New Term
Loan Lender) that had an Existing Term Loan shall cease to be a Lender or an Initial Term Loan Lender. This Amendment constitutes written
notice by the Borrower as required by Section 2.14(a) of the Credit Agreement.
2
SECTION 2. Amendment.
Effective as of the Amendment Effective Date immediately after the making of the New Term Loans in Section 1 hereof and the application
of the proceeds thereof, and subject to the terms and conditions set forth herein, the Credit Agreement is hereby amended and restated
to be in the form of Annex A hereto (the Credit Agreement, as so amended, being referred to as the “Amended
Credit Agreement”) and Exhibit F to the Credit Agreement is hereby amended and restated to be in the form of Annex B
hereto.
SECTION 3. Conditions of Effectiveness.
This Amendment shall become
effective as of the first date (such date being referred to as the “Amendment Effective Date”) when each of the following
conditions shall have been satisfied:
(a) The
conditions in Sections 6 and 7 (other than Section 6.8) of the Amended Credit Agreement shall have been satisfied.
(b) Each
of the representations and warranties set forth in Section 4 shall be true and correct.
(c) The
Administrative Agent shall have received the fees required to be paid on the Amendment Effective Date as agreed between the Borrower and
the Administrative Agent.
(d) The
Borrower shall have delivered to the Administrative Agent, at least two (2) Business Days prior to the Amendment Effective Date,
a Joinder Agreement1 specifying (i) the aggregate principal amount of New Term Loans to be made on the Amendment Effective
Date, (ii) the date of Borrowing (which shall be the Amendment Effective Date) and (iii) whether the Term Loans shall consist
of ABR Loans and/or Term Benchmark Loans, and if the Term Loans are to include Term Benchmark Loans, the Interest Period to be initially
applicable thereto.
SECTION 4. Representations
and Warranties. The Borrower and Holdings represent and warrant as follows as of the date hereof:
(a) Neither
the execution, delivery or performance by either the Borrower or Holdings of this Amendment nor compliance with the terms and provisions
thereof nor the consummation of the Transactions and the other transactions contemplated hereby or thereby will (a) contravene any
applicable provision of any material law, statute, rule, regulation, order, writ, injunction or decree of any court or governmental instrumentality,
(b) result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in
the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of the Borrower, Holdings
or any of the Restricted Subsidiaries (other than Liens created under the Credit Documents or Permitted Liens) pursuant to, the terms
of any Contractual Requirement other than any such breach, default or Lien that would not reasonably be expected to result in a Material
Adverse Effect or (c) violate any provision of the certificate of incorporation, by-laws, articles or other organizational documents
of the Borrower, Holdings or any of the Restricted Subsidiaries.
(b) Each
of the Borrower and Holdings has the corporate or other organizational power and authority to execute, deliver and carry out the terms
and provisions of this Amendment and has taken all necessary corporate or other organizational action to authorize the execution, delivery
and performance of this Amendment. Each of the Borrower and Holdings has duly executed and delivered this Amendment and this Amendment
constitutes the legal, valid, and binding obligation of each of the Borrower and Holdings enforceable in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and
subject to general principles of equity.
1 Note to Draft: Joinder Agreement to also include
certification that the New Loan Commitments, incurred under clause (i) of the definition of Maximum Incremental Facilities Amount, do
not exceed the Maximum Incremental Facilities Amount.
3
(c) Upon
the Amendment Effective Date and both before and immediately after giving effect to this Amendment and the making of the New Term Loans
as contemplated herein, no Default exists.
(d) The
representations and warranties made by the Credit Parties in Section 8 of the Credit Agreement and in the other Credit
Documents shall be true in all material respects (and in all respects if qualified by materiality) on and as of the Amendment Effective
Date both before and after giving effect to the New Term Loans made on the Amendment Effective Date with the same force and effect as
if made on and as of such date and following such new borrowing, except to the extent such representations and warranties are expressly
limited to an earlier date (in which case such representations and warranties shall be true as of such earlier date).
SECTION 5. Reaffirmation.
Each of the undersigned Credit Parties acknowledges (i) all of its Obligations (as amended hereby) are reaffirmed and remain in full
force and effect on a continuous basis, (ii) its guarantee obligations and its grant of security interests pursuant to the Credit
Documents are reaffirmed and remain in full force and effect after giving effect to this Amendment and (iii) the execution
of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent, the Collateral Agent or any
other Secured Party, constitute a waiver of any provision of any of the Credit Documents or serve to effect a novation of the Obligations.
SECTION 6. Reference to and
Effect on the Credit Agreement and the Credit Documents.
(a) On
and after the Amendment Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,”
“hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement,
as amended by this Amendment No. 11 (i.e., the Amended Credit Agreement).
(b) The
Credit Agreement and each of the other Credit Documents, as specifically amended by this Amendment are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Security
Documents and all of the Collateral described therein do and shall continue to secure, and the Guarantees do and shall continue to support,
the payment of all Obligations of the Loan Parties under the Credit Documents, in each case, as amended by this Amendment.
(c) The
execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Administrative Agent under any of the Credit Documents, nor constitute a waiver of any provision
of any of the Credit Documents. On and after the effectiveness of this Amendment, this Amendment shall for all purposes constitute a Credit
Document.
(d) It
is the intent of the parties hereto, and the parties hereto agree, that this Amendment shall not constitute a novation of the Credit Agreement,
any other Credit Document or any of the rights, obligations or liabilities thereunder.
4
SECTION 7. Execution
in Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts
(including by facsimile or other electronic transmission), and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery by facsimile or electronic transmission of an executed counterpart of a signature page to this
Amendment shall be effective as delivery of an original executed counterpart of this Amendment.
SECTION 8. Governing Law.
(a) THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
(b) ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK
COUNTY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE SITTING IN NEW YORK CITY IN THE BOROUGH OF MANHATTAN,
AND APPELLATE COURTS FROM ANY THEREOF, AND, BY EXECUTION AND DELIVERY OF THIS AMENDMENT, THE BORROWER, HOLDINGS, THE ADMINISTRATIVE AGENT
AND EACH LENDER HEREBY ACCEPTS FOR ITSELF AND (TO THE EXTENT PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
THE EXCLUSIVE GENERAL JURISDICTION OF THE AFORESAID COURTS. THE BORROWER, HOLDINGS, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(c) EACH
PARTY HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 13.2 OF THE CREDIT
AGREEMENT. NOTHING IN THIS AMENDMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
GOVERNMENTAL REQUIREMENTS.
(d) NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY HOLDER OF A NOTE TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE LOAN PARTIES IN ANY OTHER JURISDICTION WITH RESPECT TO ANY OTHER CREDIT DOCUMENT THAT PROVIDES FOR SUCH OTHER JURISDICTION, INCLUDING
WITHOUT LIMITATION THE COMMENCEMENT OF ENFORCEMENT PROCEEDINGS UNDER THE CREDIT DOCUMENTS IN ALL APPLICABLE JURISDICTIONS.
5
(e) THE
BORROWER, HOLDINGS AND EACH LENDER HEREBY (I) IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AMENDMENT AND FOR ANY COUNTERCLAIM THEREIN; (II) IRREVOCABLY WAIVE, TO
THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (III) CERTIFY THAT NO PARTY HERETO NOR
ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS; AND (IV) ACKNOWLEDGE THAT IT HAS BEEN INDUCED TO ENTER
INTO THIS AMENDMENT, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 8.
[The remainder of this page is intentionally
left blank]
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
BRIGHTVIEW HOLDINGS, INC., as Holdings
By:
/s/ Anthony Riegel
Name: Anthony Riegel
Title: Treasurer
BRIGHTVIEW LANDSCAPES, LLC, as the Borrower
By:
/s/ Anthony Riegel
Name: Anthony Riegel
Title: Treasurer
BRIGHTVIEW ENTERPRISE SOLUTIONS, LLC
By:
/s/ Anthony Riegel
Name: Anthony Riegel
Title: Treasurer
BRIGHTVIEW LANDSCAPES DEVELOPMENT, INC.
By:
/s/ Anthony Riegel
Name: Anthony Riegel
Title: Treasurer
BRIGHTVIEW LANDSCAPES SERVICES, INC.
By:
/s/ Anthony Riegel
Name: Anthony Riegel
Title: Treasurer
BRIGHTVIEW LANDSCAPES SERVICES, INC.
By:
/s/ Anthony Riegel
Name: Anthony Riegel
Title: Treasurer
[Signature Page to BrightView Amendment No. 11 to Credit Agreement]
BRIGHTVIEW COMPANIES, LLC
By:
/s/ Anthony Riegel
Name: Anthony Riegel
Title: Treasurer
[Signature Page to BrightView Amendment No. 11 to Credit Agreement]
JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent
By:
/s/ Kimberly Cole
Name: Kimberly Cole
Title: Vice President
JPMORGAN CHASE BANK, N.A., as New Term Loan Lender
By:
/s/ Kimberly Cole
Name: Kimberly Cole
Title: Vice President
[Signature Page to BrightView Amendment No. 11 to Credit Agreement]
ANNEX A
AMENDED CREDIT AGREEMENT
[SEE ATTACHED]
ANNEX A
[EXECUTION VERSION]
CREDIT AGREEMENT
dated as of December 18, 2013
among
BRIGHTVIEW HOLDINGS, INC.,
as Holdings,
BRIGHTVIEW LANDSCAPES, LLC,
as the Borrower,
The Several Lenders
from Time to Time Parties Hereto,
and
JPMORGAN CHASE BANK, N.A.
as the Administrative Agent, the Collateral Agent, the Swingline Lender, a Letter of Credit Issuer and a Lender
JPMorgan
Chase bank, n.a.
KKR CAPITAL
MARKETS LLC
MUFG BANK, LTD.
pnc BANK,
NATIONAL ASSOCIATION
citizens BANK, N.A.
MIZUHO
BANK, LTD.
WELLS
FARGO SECURITIES, LLC,
as Joint Lead Arrangers and Bookrunners
TABLE OF CONTENTS
Page
Section 1.
Definitions.
1
1.1
Defined Terms
1
1.2
Other Interpretive Provisions
79
1.3
Accounting Terms
79
1.4
Rounding
79
1.5
References to Agreements Laws, Etc.
80
1.6
Exchange Rates
80
1.7
Rates
80
1.8
Times of Day
81
1.9
Timing of Payment or Performance
81
1.10
Certifications
81
1.11
Compliance with Certain Sections
81
1.12
Pro Forma and Other Calculations
81
1.13
Divisions
84
Section 2.
Amount and Terms of Credit
84
2.1
Commitments
84
2.2
Minimum Amount of Each Borrowing; Maximum Number of Borrowings
86
2.3
Notice of Borrowing
86
2.4
Disbursement of Funds
87
2.5
Repayment of Loans; Evidence of Debt
87
2.6
Conversions and Continuations
90
2.7
Pro Rata Borrowings
91
2.8
Interest
91
2.9
Interest Periods
91
2.10
Increased Costs, Illegality, Etc.
92
2.11
Compensation
95
2.12
Change of Lending Office
95
2.13
Notice of Certain Costs
96
2.14
Incremental Facilities
96
2.15
Permitted Debt Exchanges
103
2.16
Defaulting Lenders
104
Section 3.
Letters of Credit
106
3.1
Letters of Credit
106
3.2
Letter of Credit Requests
108
3.3
Letter of Credit Participations
109
3.4
Agreement to Repay Letter of Credit Drawings
111
3.5
Increased Costs
113
3.6
New or Successor Letter of Credit Issuer
113
3.7
Role of Letter of Credit Issuer
114
3.8
Cash Collateral
115
3.9
Applicability of ISP and UCP
116
-v-
3.10
Conflict with Issuer Documents
116
3.11
Letters of Credit Issued for Restricted Subsidiaries
116
3.12
Provisions Related to Extended Revolving Credit Commitments
116
Section 4.
Fees
117
4.1
Fees
117
4.2
Voluntary Reduction of Revolving Credit Commitments
118
4.3
Mandatory Termination of Commitments
118
Section 5.
Payments
119
5.1
Voluntary Prepayments
119
5.2
Mandatory Prepayments
120
5.3
Method and Place of Payment
123
5.4
Net Payments
123
5.5
Computations of Interest and Fees
127
5.6
Limit on Rate of Interest
127
Section 6.
Conditions Precedent to Initial Borrowing
128
6.1
Credit Documents
128
6.2
[Reserved]
128
6.3
Legal Opinions
128
6.4
Closing Certificates
128
6.5
Authorization of Proceedings of Holdings and the Borrower; Corporate Documents
129
6.6
Fees
129
6.7
Representations and Warranties
129
6.8
Solvency Certificate
129
6.9
Patriot Act
129
6.10
Financial Statements
129
6.11
No Material Adverse Effect
129
Section 7.
Conditions Precedent to All Credit Events
130
7.1
No Default; Representations and Warranties
130
7.2
Notice of Borrowing; Letter of Credit Request
130
Section 8.
Representations and Warranties
130
8.1
Corporate Status
130
8.2
Corporate Power and Authority
131
8.3
No Violation
131
8.4
Litigation
131
8.5
Margin Regulations
131
8.6
Governmental Approvals
131
8.7
Investment Company Act
132
8.8
True and Complete Disclosure
132
-vi-
8.9
Financial Condition; Financial Statements
132
8.10
Compliance with Laws; No Default
133
8.11
Tax Matters
133
8.12
Compliance with ERISA
133
8.13
Subsidiaries
133
8.14
Intellectual Property
133
8.15
Environmental Laws
134
8.16
Properties
134
8.17
Solvency
134
8.18
Patriot Act
134
8.19
Anti-Corruption Laws and Sanctions and Anti-Money Laundering Laws
134
Section 9.
Affirmative Covenants
135
9.1
Information Covenants
135
9.2
Books, Records, and Inspections
138
9.3
Maintenance of Insurance
138
9.4
Payment of Taxes
139
9.5
Preservation of Existence; Consolidated Corporate Franchises
139
9.6
Compliance with Statutes, Regulations, Etc.
139
9.7
ERISA
139
9.8
Maintenance of Properties
140
9.9
Transactions with Affiliates
140
9.10
End of Fiscal Years
141
9.11
Additional Guarantors and Grantors
141
9.12
Pledge of Additional Stock and Evidence of Indebtedness
141
9.13
Use of Proceeds
142
9.14
Further Assurances
142
9.15
Maintenance of Ratings
143
9.16
Lines of Business
143
Section 10.
Negative Covenants
144
10.1
Limitation on Indebtedness
144
10.2
Limitation on Liens
149
10.3
Limitation on Fundamental Changes
150
10.4
Limitation on Sale of Assets
151
10.5
Limitation on Restricted Payments
153
10.6
Limitation on Subsidiary Distributions
161
10.7
Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio
162
10.8
Use of Proceeds
162
Section 11.
Events of Default
163
11.1
Payments
163
11.2
Representations, Etc.
163
11.3
Covenants
163
11.4
Default Under Other Agreements
164
-vii-
11.5
Bankruptcy, Etc.
164
11.6
ERISA
165
11.7
Guarantee
165
11.8
Pledge Agreement
165
11.9
Security Agreement
165
11.10
Judgments
165
11.11
Change of Control
166
11.12
Remedies Upon Event of Default
166
11.13
Application of Proceeds
167
11.14
Equity Cure
167
Section 12.
The Agents
168
12.1
Appointment
168
12.2
Delegation of Duties
169
12.3
Exculpatory Provisions
169
12.4
Reliance by Agents
170
12.5
Notice of Default
170
12.6
Non-Reliance on Administrative Agent, Collateral Agent, and Other Lenders
171
12.7
Indemnification
171
12.8
Agents in Their Individual Capacities
172
12.9
Successor Agents
172
12.10
Withholding Tax
173
12.11
Agents Under Security Documents and Guarantee
174
12.12
Right to Realize on Collateral and Enforce Guarantee
175
12.13
Intercreditor Agreements Govern
175
12.14
Acknowledgements of Lenders and Issuing Banks
175
Section 13.
Miscellaneous
177
13.1
Amendments, Waivers, and Releases
177
13.2
Notices
181
13.3
No Waiver; Cumulative Remedies
181
13.4
Survival of Representations and Warranties
181
13.5
Payment of Expenses; Indemnification
182
13.6
Successors and Assigns; Participations and Assignments
183
13.7
Replacements of Lenders Under Certain Circumstances
189
13.8
Adjustments; Set-off
190
13.9
Counterparts
191
13.10
Severability
191
13.11
Integration
191
13.12
GOVERNING LAW
191
13.13
Submission to Jurisdiction; Waivers
191
13.14
Acknowledgments
192
13.15
WAIVERS OF JURY TRIAL
193
13.16
Confidentiality
194
13.17
Direct Website Communications
194
13.18
USA PATRIOT Act
196
13.19
[Reserved]
196
13.20
Payments Set Aside
196
13.21
No Fiduciary Duty
196
13.22
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
196
13.23
Certain ERISA Matters
197
13.24
Acknowledgement Regarding Any Supported QFCs
198
-viii-
SCHEDULES
Schedule
1.1(a)
Mortgaged
Properties
Schedule
1.1(b)
Commitments
of Lenders
Schedule
1.1(c)
Hedge Banks
Schedule
1.1(d)
Existing
Letters of Credit
Schedule
8.13
Subsidiaries
Schedule
8.15
Environmental
Schedule
9.14
Post-Closing
Actions
Schedule
10.1
Closing Date
Indebtedness
Schedule
10.2
Closing Date
Liens
Schedule
10.5
Closing Date
Investments
Schedule
13.2
Notice Addresses
EXHIBITS
Exhibit A
Form of Joinder Agreement
Exhibit B
Form of Guarantee
Exhibit C
Form of Pledge Agreement
Exhibit D
Form of Security Agreement
Exhibit E
Form of Credit Party Closing Certificate
Exhibit F
Form of Assignment and Acceptance
Exhibit G-1
Form of Promissory Note (Initial Term Loans)
Exhibit G-2
Form of Promissory Note (Revolving Credit Loans)
Exhibit H
Form of First Lien Intercreditor Agreement
Exhibit I
Form of Second Lien Intercreditor Agreement
Exhibit J-1
Form of Non-Bank Tax Certificate (For Non-U.S. Lenders That Are Not Partnerships For
U.S. Federal Income Tax Purposes)
Exhibit J-2
Form of Non-Bank Tax Certificate (For Non-U.S. Lenders That Are Partnerships For U.S.
Federal Income Tax Purposes)
Exhibit J-3
Form of Non-Bank Tax Certificate (For Non-U.S. Participants That Are Not Partnerships
For U.S. Federal Income Tax Purposes)
Exhibit J-4
Form of Non-Bank Lenders Tax Certificate (For Foreign Participants That Are Partnerships
For U.S. Federal Income Tax Purposes)
Exhibit K
Form of Notice of Borrowing or Continuation or Conversion
Exhibit L
Form of Letter of Credit Request
Exhibit M
Form of Hedge Bank Designation
-ix-
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as
of December 18, 2013, among BRIGHTVIEW HOLDINGS, INC. (f/k/a GARDEN ACQUISITION HOLDINGS, INC.) (“Holdings”),
BRIGHTVIEW LANDSCAPES, LLC (f/k/a The Brickman Group Ltd. LLC), a Delaware limited liability company (the “Borrower”),
the lending institutions from time to time parties hereto (each a “Lender” and, collectively, together with the Swingline
Lender, the “Lenders”), and JPMORGAN CHASE BANK, N.A., as the Letter of Credit Issuer, the Swingline Lender, the Administrative
Agent and the Collateral Agent (such terms and each other capitalized term used but not defined in this preamble having the meaning provided
in Section 1).
WHEREAS, (a) the Borrower
has requested that the Lenders extend or continue to extend credit in the form of (i) Initial Term Loans to the Borrower on the
Eleventh Amendment Effective Date, in an aggregate principal amount of $738,000,000, the proceeds of which shall be used to repay in
full the Initial Term Loans outstanding immediately prior to the Eleventh Amendment Effective Date, and (ii) Revolving Credit Loans
made available to the Borrower at any time and from time to time prior to the Revolving Credit Maturity Date in an aggregate principal
amount at any time outstanding not in excess of $300,000,000 less the sum of (1) the aggregate Letters of Credit Outstanding at
such time and (2) the aggregate principal amount of all Swingline Loans outstanding at such time, (b) the Borrower has requested
(i) the Letter of Credit Issuer to issue Letters of Credit at any time and from time to time prior to the L/C Facility Maturity
Date, in an aggregate Stated Amount at any time outstanding not in excess of $150,000,000, and (ii) to deem the letters of credit
identified on Schedule 1.1(d) hereto to be Letters of Credit for all purposes under this Agreement, and (c) the Borrower
has requested the Swingline Lender to extend credit to the Borrower in the form of Swingline Loans at any time and from time to time
prior to the Swingline Maturity Date, in an aggregate principal amount at any time outstanding not in excess of $30,000,000;
WHEREAS, the proceeds of
the Initial Term Loans will be used, together with cash on hand, to effect the Transactions, to provide for liquidity in the form of
cash on the balance sheet of Holdings and to pay Transaction Expenses; and
WHEREAS, the Lenders and
Letter of Credit Issuer are willing to make available to the Borrower such term loan and revolving credit and letter of credit facilities
upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration
of the premises and the covenants and agreements contained herein, the parties hereto hereby agree as follows:
Section 1. Definitions.
1.1 Defined
Terms. As used herein, the following terms shall have the meanings specified in this Section 1.1 unless the context otherwise
requires (it being understood that defined terms in this Agreement shall include in the singular number the plural and in the plural
the singular):
“ABR”
shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB
Rate in effect on such day plus ½ of 1% and (c) the Term SOFR Rate for a one month Interest Period as published two U.S.
Government Securities Business Days prior to such day (or if such day is not a Business Day, the immediately preceding Business Day)
plus 1%; provided that for the purpose of this definition, the Term SOFR Rate for any day shall be based on the Term SOFR
Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference
Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the ABR due to a change
in the Prime Rate, the NYFRB Rate or the Term SOFR Rate shall be effective from and including the effective date of such change in the
Prime Rate, the NYFRB Rate or the Term SOFR Rate, respectively. If the ABR is being used as an alternate rate of interest pursuant to
Section 2.10 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.10(a)),
then the ABR shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
For the avoidance of doubt, if the ABR as determined pursuant to the foregoing (i) in the case of the Initial Term Loans, would
be less than 1.50%, such rate shall be deemed to be 1.50% for purposes of this Agreement and (ii) in the case of the Revolving Loans,
would be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement.
1
“ABR Loan”
shall mean each Loan bearing interest based on the ABR.
“Acquired EBITDA”
shall mean, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary (any of the foregoing, a “Pro
Forma Entity”) for any period, the amount for such period of Consolidated EBITDA of such Pro Forma Entity (determined using
such definitions as if references to Holdings and the Restricted Subsidiaries therein were to such Pro Forma Entity and its Restricted
Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity in accordance with GAAP.
“Acquired Entity
or Business” shall have the meaning provided in the definition of the term Consolidated EBITDA.
“Acquired Indebtedness”
shall mean, with respect to any specified Person, (i) 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 in connection with, or in contemplation of, such other Person merging, consolidating, or amalgamating with or into or becoming
a Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.
“Additional Revolving
Credit Commitment” shall have the meaning provided in Section 2.14(a).
“Additional Revolving
Credit Loan” shall have the meaning provided in Section 2.14(b).
“Additional Revolving
Loan Lender” shall have the meaning provided in Section 2.14(b).
“Adjusted Total
Revolving Credit Commitment” shall mean at any time the Total Revolving Credit Commitment less the aggregate Revolving Credit
Commitments of all Defaulting Lenders.
“Adjusted Total
Term Loan Commitment” shall mean at any time the Total Term Loan Commitment less the Term Loan Commitments of all Defaulting
Lenders.
“Administrative
Agent” shall mean JPMorgan Chase Bank, N.A., as the administrative agent for the Lenders under this Agreement and the other
Credit Documents, or any successor administrative agent pursuant to Section 12.9.
“Administrative
Agent’s Office” shall mean the Administrative Agent’s address and, as appropriate, account as set forth on Schedule
13.2 or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.
2
“Administrative
Questionnaire” shall have the meaning provided in Section 13.6(b)(ii)(D).
“Affected Financial
Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”
shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect
common control with such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly,
the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
“Affiliated Institutional
Lender” shall mean (i) any Affiliate of the Sponsor that is either a bona fide debt fund or such Affiliate extends credit
or buys loans in the ordinary course of business and (ii) KKR Corporate Lending LLC and KKR Capital Markets LLC.
“Affiliated Lender”
shall mean a Lender that is the Sponsor or any Affiliate thereof (other than Holdings, the Borrower, any other Subsidiary of Holdings,
or any Affiliated Institutional Lender).
“Agent Parties”
shall have the meaning provided in Section 13.17(b).
“Agents”
shall mean the Administrative Agent, the Collateral Agent and each Joint Lead Arranger and Bookrunner.
“Agreement”
shall mean this Credit Agreement.
“AHYDO”
shall have the meaning provided in the definition of Permitted Other Indebtedness.
“Ancillary Document”
shall have the meaning provided in Section 13.9.
“Anti-Corruption
Laws” shall have the meaning provided in Section 8.10.
“Anti-Money Laundering
Laws” shall mean the Bank Secrecy Act, as amended by the Patriot Act, and any other similar laws or regulations concerning
or relating to terrorism financing, money laundering, any predicate crime to money laundering, or any financial record keeping and reporting
requirements related thereto.
“Applicable Margin”
shall mean a percentage per annum equal to:
(i) (a) for
Term Benchmark Loans or RFR Loans that are Initial Term Loans, 2.00% and (b) for ABR Loans that are Initial Term Loans, 1.00%;
(ii) (a) until
delivery of financial statements and a related Compliance Certificate for the first full fiscal quarter ending on or after the Tenth
Amendment Effective Date pursuant to Section 9.1, (1) for Term Benchmark Loans that are Revolving Credit Loans, 2.00%,
(2) for ABR Loans or RFR Loans that are Revolving Credit Loans, 1.00%, and (3) for Letter of Credit Fees, 2.00% per annum;
and
3
(b) thereafter,
in connection with Revolving Credit Loans, the percentages per annum set forth in the table below, based upon the Consolidated First
Lien Secured Debt to Consolidated EBITDA Ratio as set forth in the most recent Compliance Certificate received by the Administrative
Agent pursuant to Section 9.1:
Pricing
Level
Consolidated
First
Lien Secured Debt to
Consolidated
EBITDA Ratio
Letter
of
Credit Fees
ABR
Rate Revolving
Credit Loans
Term
SOFR Rate /
Daily Simple SOFR
Revolving Credit Loans
I
>
3.25x
2.25%
1.25%
2.25%
II
<
3.25x but > 3.00x
2.00%
1.00%
2.00%
III
<
3.00x
1.75
%
0.75%
1.75%
Any increase or decrease
in the Applicable Margin for Revolving Credit Loans resulting from a change in the Consolidated First Lien Secured Debt to Consolidated
EBITDA Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered
pursuant to Section 9.1(d).
Notwithstanding the foregoing,
(a) the Applicable Margin in respect of any Class of Extended Revolving Credit Commitments, any Extended Revolving Credit Loans
or any Extended Term Loans shall be the applicable percentages per annum set forth in the relevant Extension Amendment, (b) the
Applicable Margin in respect of any Class of Additional Revolving Credit Commitments, any Additional Revolving Credit Loans or any
Incremental Loans shall be the applicable percentages per annum set forth in the relevant Joinder Agreement, (c) the Applicable
Margin in respect of any Class of Replacement Term Loans shall be the applicable percentages per annum set forth in the relevant
agreement, (d) the Applicable Margin in respect of any Class of Refinancing Indebtedness that would constitute Revolving Credit
Commitments shall be the applicable percentages per annum set forth in the relevant agreement, and (e) in the case of the Term Loans
and any Class of Incremental Term Loans, the Applicable Margin shall be increased as, and to the extent, necessary to comply with
the provisions of Section 2.14.
Notwithstanding anything
to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the Consolidated
First Lien Secured Debt to Consolidated EBITDA Ratio set forth in any Compliance Certificate delivered to the Administrative Agent is
inaccurate for any reason and the result thereof is that the Lenders received interest or fees for any period based on an Applicable
Margin that is less than that which would have been applicable had the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio
been accurately determined, then, for all purposes of this Agreement, the Applicable Margin for any day occurring within the period covered
by such Compliance Certificate shall retroactively be deemed to be the relevant percentage as based upon the accurately determined Consolidated
First Lien Secured Debt to Consolidated EBITDA Ratio for such period, and any shortfall in the interest or fees theretofore paid by the
Borrower for the relevant period as a result of the miscalculation of the Consolidated First Lien Secured Debt to Consolidated EBITDA
Ratio shall be deemed to be (and shall be) due and payable, at the time the interest or fees for such period were required to be paid;
provided that notwithstanding the foregoing, so long as an Event of Default described in Section 11.5 has not occurred
with respect to the Borrower, such shortfall shall be due and payable within five Business Days following the written demand thereof
by the Administrative Agent and no Default shall be deemed to have occurred as a result of such non-payment until the expiration of such
five Business Day period. In addition, at the option of the Required Revolving Credit Lenders at any time during which the Borrower shall
have failed to deliver any of the Section 9.1 Financials by the applicable date required under Section 9.1, then the
Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio shall be deemed to be Level I Revolving Status for the purposes of
determining the Applicable Margin (but only for so long as such failure continues, after which such ratio and Status shall be determined
based on the then existing Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio).
4
“Approved Foreign
Bank” shall have the meaning provided in the definition of the term Cash Equivalents.
“Approved Fund”
shall mean any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender, or (iii) an entity
or an Affiliate of an entity that administers, advises or manages a Lender.
“Asset Sale”
shall mean:
(i) the
sale, conveyance, transfer, or other disposition, whether in a single transaction or a series of related transactions, of property or
assets (including by way of a Sale Leaseback) (each a “disposition”) of Holdings or any Restricted Subsidiary, or
(ii) the
issuance or sale of Equity Interests of any Restricted Subsidiary (other than preferred stock of Restricted Subsidiaries issued in compliance
with Section 10.1), whether in a single transaction or a series of related transactions, in each case, other than:
(a) any
disposition of Cash Equivalents or Investment Grade Securities or obsolete, worn out or surplus property or property (including leasehold
property interests) that is no longer economically practical in its business or commercially desirable to maintain or no longer used
or useful equipment in the ordinary course of business or any disposition of inventory, immaterial assets, or goods (or other assets)
in the ordinary course of business;
(b) the
disposition of all or substantially all of the assets of Holdings or the Borrower in a manner permitted pursuant to Section 10.3;
(c) the
incurrence of Liens that are permitted to be incurred pursuant to Section 10.2 or the making of any Restricted Payment or
Permitted Investment (other than pursuant to clause (i) of the definition thereof) that is permitted to be made, and is made,
pursuant to Section 10.5;
(d) any
disposition of assets (whether tangible or intangible) or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction
or series of related transactions with an aggregate Fair Market Value of less than the greater of (a) $30,000,000 and (b) 10%
of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such disposition;
(e) any
disposition of property or assets or issuance of securities by (1) a Restricted Subsidiary to Holdings or (2) by Holdings or
a Restricted Subsidiary to another Restricted Subsidiary;
(f) to
the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding
any boot thereon) for use in a Similar Business;
(g) any
issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary;
5
(h) foreclosures,
condemnation, casualty or any similar action on assets (including dispositions in connection therewith);
(i) sales
of accounts receivable, or participations therein, and related assets in connection with any Receivables Facility;
(j) any
financing transaction with respect to property built or acquired by Holdings or any Restricted Subsidiary after the Closing Date, including
Sale Leasebacks and asset securitizations permitted by this Agreement;
(k) (1) any
surrender or waiver of contractual rights or the settlement, release, or surrender of contractual rights or other litigation claims,
(2) the termination or collapse of cost sharing agreements with Holdings or any Subsidiary and the settlement of any crossing payments
in connection therewith, or (3) the settlement, discount, write off, forgiveness, or cancellation of any Indebtedness owing by any
present or former consultants, directors, officers, or employees of Holdings (or any direct or indirect parent company of Holdings) or
any Subsidiary or any of their successors or assigns;
(l) the
disposition or discount of inventory, accounts receivable, or notes receivable in the ordinary course of business or the conversion of
accounts receivable to notes receivable;
(m) the
licensing, cross-licensing or sub-licensing of Intellectual Property or other general intangibles (whether pursuant to franchise agreements
or otherwise) in the ordinary course of business;
(n) the
unwinding of any Hedging Obligations or obligations in respect of Cash Management Services;
(o) 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;
(p) the
expiration, lapse or abandonment of Intellectual Property rights in the ordinary course of business, which in the reasonable business
judgment of the Borrower are not material to the conduct of the business of Holdings and the Restricted Subsidiaries taken as a whole;
(q) the
issuance of directors’ qualifying shares and shares issued to foreign nationals as required by applicable law;
(r) dispositions
of property to the extent that (1) such property is exchanged for credit against the purchase price of similar replacement property
that is promptly purchased or (2) the proceeds of such disposition are promptly applied to the purchase price of such replacement
property (which replacement property is actually promptly purchased);
(s) leases,
assignments, subleases, licenses, or sublicenses, in each case in the ordinary course of business and which do not materially interfere
with the business of Holdings and the Restricted Subsidiaries, taken as a whole; and
6
(t) dispositions
of non-core assets acquired in connection with any Permitted Acquisition or Investment permitted hereunder (including to obtain the approval
of any applicable antitrust authority),
(u) Restricted
Payments permitted pursuant to Section 10.5, and
(v) any
other disposition in any transaction or series of transactions with an aggregate Fair Market Value of less than the greater of (a) $67,500,000
and (b) 22.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such
disposition.
“Asset Sale Prepayment
Event” shall mean any Asset Sale subject to the Reinvestment Period allowed in Section 10.4; provided, further,
that with respect to any Asset Sale Prepayment Event, the Borrower shall not be obligated to make any prepayment otherwise required by
Section 5.2 unless and until the aggregate amount of Net Cash Proceeds from all such Asset Sale Prepayment Events, after
giving effect to the reinvestment rights set forth herein, exceeds $25,000,000 (the “Prepayment Trigger”) in any fiscal
year of Holdings, but then from all such Net Cash Proceeds (excluding amounts below the Prepayment Trigger).
“Assignment and
Acceptance” shall mean (i) an assignment and acceptance substantially in the form of Exhibit F, or such other
form as may be approved by the Administrative Agent and (ii) in the case of any assignment of Term Loans in connection with a Permitted
Debt Exchange conducted in accordance with Section 2.15, such form of assignment (if any) as may be agreed by the Administrative
Agent and the Borrower in accordance with Section 2.15(a).
“Auction Agent”
shall mean (i) the Administrative Agent or (ii) any other financial institution or advisor employed by Holdings, the Borrower,
or any Subsidiary (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Permitted Debt
Exchange pursuant to Section 2.15 or Dutch auction pursuant to Section 13.6(h); provided that Holdings
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 Holdings nor any of its Subsidiaries may act as the Auction Agent.
“Authorized Officer”
shall mean, with respect to any Person, any individual holding the position of chairman of the board (if an officer), the Chief Executive
Officer, President, the Chief Financial Officer, the Treasurer, the Controller, the Vice President-Finance, a Director, a Manager, or
any other senior officer or agent with express authority to act on behalf of such Person designated as such by the board of directors
or other managing authority of such Person.
“Auto-Extension
Letter of Credit” shall have the meaning provided in Section 3.2(d).
“Available Amount”
shall have the meaning provided in Section 10.5(a)(iii).
“Available Commitment”
shall mean an amount equal to the excess, if any, of (i) the amount of the Total Revolving Credit Commitment over (ii) the
sum of the aggregate principal amount of (a) all Revolving Credit Loans (but not Swingline Loans) then outstanding and (b) the
aggregate Letters of Credit Outstanding at such time.
“Available Tenor”
shall mean, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark
(or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable,
that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency
of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any
tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (a)(vi) of
Section 2.10.
7
“Bail-In Action”
shall mean 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”
shall mean (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament
and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from
time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of
the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United
Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates
(other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code”
shall have the meaning provided in Section 11.5.
“Benchmark”
shall mean, initially, with respect to any Term Benchmark Loan, the Term SOFR Rate; provided that if a Benchmark Transition Event,
and the related Benchmark Replacement Date have occurred with respect to the Daily Simple SOFR or Term SOFR Rate, as applicable, or the
then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement
has replaced such prior benchmark rate pursuant to clause (a) of Section 2.10.
“Benchmark Replacement”
shall mean, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative
Agent for the applicable Benchmark Replacement Date:
(1) the
Daily Simple SOFR;
(2) the
sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement
for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation
of a replacement benchmark rate or the mechanism for determining such a rate by the Governmental Authority or (ii) any evolving
or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar-denominated
syndicated credit facilities at such time in the United States and (b) the related Benchmark Replacement Adjustment;
If the Benchmark Replacement
as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to
be the Floor for the purposes of this Agreement and the other Credit Documents.
“Benchmark Replacement
Adjustment” shall mean, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement
for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment,
or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected
by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection
or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such
Benchmark with the applicable Unadjusted Benchmark Replacement by the Governmental Authority on the applicable Benchmark Replacement
Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating
or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for
dollar-denominated syndicated credit facilities at such time.
8
“Benchmark Replacement
Conforming Changes” shall mean, with respect to any Benchmark Replacement and/or any Term Benchmark Loan, any technical, administrative
or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition
of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining
rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback
periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative
Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the 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 that no market practice
for the administration of such Benchmark exists, in such other manner of administration as the Administrative Agent decides is reasonably
necessary in connection with the administration of this Agreement and the other Credit Documents).
“Benchmark Replacement
Date” shall mean, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current
Benchmark:
(1) in
the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date
of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark
(or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such
Benchmark (or such component thereof); or
(2) in
the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or
the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator
of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined
by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark
(or such component thereof) continues to be provided on such date.
For the avoidance of doubt,
(i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in
respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination
and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with
respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available
Tenors of such Benchmark (or the published component used in the calculation thereof).
9
“Benchmark Transition
Event” shall mean, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such
then-current Benchmark:
(1) a public
statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the
calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or
such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor
administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public
statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component
used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, an insolvency official with
jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator
for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator
for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased
or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided
that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor
of such Benchmark (or such component thereof); or
(3) a public
statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component
used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or
as of a specified future date will no longer be, representative.
For the avoidance of doubt,
a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication
of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component
used in the calculation thereof).
“Benchmark Unavailability
Period” shall mean, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement
Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced
such then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.10 and
(y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under
any Credit Document in accordance with Section 2.10.
“Beneficial Ownership
Certification” shall mean a certification regarding beneficial ownership or control as required by the Beneficial Ownership
Regulation.
“Beneficial Ownership
Regulation” shall mean 31 C.F.R. § 1010.230.
“Benefited Lender”
shall have the meaning provided in Section 13.8(a).
“BHC Act Affiliate”
of a party shall mean an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k))
of such party.
“Borrower”
shall have the meaning given such term in the preamble to this Agreement.
10
“Borrowing”
shall mean (i) Loans of the same Class and Type, made, converted, or continued on the same date and, in the case of Term Benchmark
Loans, as to which a single Interest Period is in effect, or (ii) a Swingline Loan.
“Business Day”
shall mean any day (other than a Saturday or a Sunday) on which banks are open for business in New York City or Chicago; provided
that, in relation to Term Benchmark Loans and any interest rate settings, fundings, disbursements, settlements or payments of any such
Term Benchmark Loan, or any other dealings of such RFR Loan, any such day that is only an U.S. Government Securities Business Day.
“Capital Expenditures”
shall mean, 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 Capital Leases) by Holdings and the Restricted Subsidiaries during such period that, in conformity
with GAAP, are or are required to be included as additions during such period to property, plant, or equipment reflected in the consolidated
balance sheet of Holdings and the Restricted Subsidiaries (including Capitalized Software Expenditures, website development costs, website
content development costs, customer acquisition costs and incentive payments, conversion costs, and contract acquisition costs).
“Capital Lease”
shall mean, as applied to any Person, any lease of any property (whether real, personal, or mixed) by that Person as lessee that, in
conformity with GAAP, is, or is required to be, accounted for as a capital lease on the balance sheet of that Person; provided
that all leases of any Person that are or would be characterized as operating leases in accordance with GAAP immediately prior to December 31,
2018 (whether or not such operating leases were in effect on such date) shall continue to be accounted for as operating leases (and not
as Capital Leases) for purposes of this Agreement regardless of any change in GAAP following the date that would otherwise require such
leases to be recharacterized as Capital Leases.
“Capital Stock”
shall mean (i) in the case of a corporation, corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights, or other equivalents (however designated) of corporate stock, (iii) in the case of
a partnership or limited liability company, partnership or membership interests (whether general or limited), and (iv) 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 (it being understood and agreed, for the avoidance of doubt, that “cash-settled phantom appreciation programs”
in connection with employee benefits that do not require a dividend or distribution shall not constitute Capital Stock).
“Capitalized Lease
Obligation” shall mean, at the time any determination thereof is to be made, the amount of the liability in respect of a Capital
Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes
thereto) prepared in accordance with GAAP; provided that all obligations of any Person that are or would be characterized as operating
lease obligations in accordance with GAAP immediately prior to December 31, 2018 (whether or not such operating lease obligations
were in effect on such date) shall continue to be accounted for as operating lease obligations (and not as Capitalized Lease Obligations)
for purposes of this Agreement regardless of any change in GAAP following the date that would otherwise require such obligations to be
recharacterized as Capitalized Lease Obligations.
“Capitalized Software
Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities)
by Holdings, the Borrower and the Restricted Subsidiaries during such period in respect of 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 Holdings, the Borrower and the Restricted Subsidiaries.
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“Cash Collateral”
shall have a meaning correlative to the definition of Cash Collateralize and shall include the proceeds of such cash collateral and other
credit support.
“Cash Collateralize”
shall mean to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the Letter of Credit
Issuer or the Revolving Credit Lenders, as collateral for L/C Obligations or obligations of the Revolving Credit Lenders to fund participations
in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and the Letter of Credit Issuer shall
agree in their sole discretion, other credit support.
“Cash Equivalents”
shall mean:
(i) Dollars,
(ii) (a) Euro,
Pounds Sterling, Canadian Dollars, or any national currency of any Participating Member State in the European Union or (b) local
currencies held from time to time in the ordinary course of business,
(iii) securities
issued or directly and fully and unconditionally guaranteed or insured by the United States government or any country that is a member
state of the European Union or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full
faith and credit obligation of such government with average maturities of 24 months or less from the date of acquisition,
(iv) certificates
of deposit, time deposits, and eurodollar time deposits with average maturities of one year or less from the date of acquisition, bankers’
acceptances with average maturities not exceeding one year, and overnight bank deposits, in each case with any commercial bank having
capital and surplus of not less than $100,000,000 (or the Dollar Equivalent as of the date of determination in the case of foreign banks),
(v) repurchase
obligations for underlying securities of the types described in clauses (iii), (iv), and (x) entered into with
any financial institution meeting the qualifications specified in clause (iv) above,
(vi) commercial
paper rated at least P-2 by Moody’s or at least A-2 by S&P after the date of creation thereof and variable and fixed rate notes
issued by a financial institution meeting the qualifications specified in clause (iv) above, in each case with average maturities
of 36 months after the date of creation thereof,
(vii) marketable
short-term money market and similar securities having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively
(or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally
recognized ratings agency),
(viii) readily
marketable direct obligations issued by any state, commonwealth, or territory of the United States or any political subdivision or taxing
authority thereof having one of the two highest rating categories obtainable from either Moody’s or S&P (or, if at any time
neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) with average maturities
of 36 months or less from the date of acquisition,
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(ix) Indebtedness
or preferred stock issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s
(or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency)
with average maturities of 36 months or less from the date of acquisition,
(x) solely
with respect to any Foreign Subsidiary: (a) obligations of the national government of the country in which such Foreign Subsidiary
maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic
Cooperation and Development, in each case maturing within one year after the date of investment therein, (b) certificates of deposit
of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country
in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member
of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2”
or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “Approved
Foreign Bank”), and in each case with maturities of not more than 24 months from the date of acquisition, and (c) the
equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank, in each case, customarily used by corporations
for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business
conducted by such Foreign Subsidiary organized in such jurisdiction,
(xi) in the
case of investments by any Foreign Subsidiary or investments made in a country outside the United States, Cash Equivalents shall also
include investments of the type and maturity described in clauses (i) through (ix) above of foreign obligors,
which investments have ratings, described in such clauses or equivalent ratings from comparable foreign rating agencies,
(xii) investment
funds investing 90% of their assets in securities of the types described in clauses (i) through (xi) above, and
(xiii) Investments,
classified in accordance with GAAP as current assets, in money market investment programs that are registered under the Investment Company
Act of 1940 or that are administered by financial institutions meeting the qualifications specified in clause (iv) above,
and, in either case, the portfolios of which are limited such that substantially all of such Investments are of the character, quality
and maturity described in clauses (i) through (xii) of this definition.
Notwithstanding the foregoing,
Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (i) and (ii) above;
provided that such amounts are converted into any currency listed in clauses (i) and (ii) as promptly
as practicable and in any event within ten Business Days following the receipt of such amounts.
For the avoidance of doubt,
any items identified as Cash Equivalents under this definition will be deemed to be Cash Equivalents for all purposes under the Credit
Documents regardless of the treatment of such items under GAAP.
“Cash Management
Agreement” shall mean any agreement or arrangement to provide Cash Management Services.
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“Cash Management
Bank” shall mean (i) any Person that, at the time it enters into a Cash Management Agreement with the Borrower or any
Restricted Subsidiary, is an Agent or a Lender or an Affiliate of an Agent or a Lender or (ii) with respect to any Cash Management
Agreement entered into prior to the Closing Date, any Person that is a Lender or an Affiliate of a Lender on the Closing Date or designated
by the Borrower as a “Cash Management Bank” by written notice to the Administrative Agent.
“Cash Management
Services” shall mean any one or more of the following types of services or facilities: (i) commercial credit cards, merchant
card services, purchase or debit cards, including non-card e-payables services, or electronic funds transfer services, (ii) treasury
management services (including controlled disbursement, overdraft automatic clearing house fund transfer services, return items, and
interstate depository network services), (iii) any other demand deposit or operating account relationships or other cash management
services, including pursuant to any Cash Management Agreements and (iv) and other services related, ancillary or complementary to
the foregoing.
“Casualty Event”
shall mean, with respect to any property of any Person, any loss of or damage to, or any condemnation or other taking by a Governmental
Authority of, such property for which such Person or any of its Restricted Subsidiaries receives insurance proceeds or proceeds of a
condemnation award 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; provided, further, that with respect to any Casualty Event, the Borrower
shall not be obligated to make any prepayment otherwise required by Section 5.2 unless and until the aggregate amount of
Net Cash Proceeds from all such Casualty Events, after giving effect to the reinvestment rights set forth herein, exceeds $25,000,000
(the “Casualty Prepayment Trigger”) in any fiscal year of Holdings, but then from all such Net Cash Proceeds (excluding
amounts below the Casualty Prepayment Trigger).
“Casualty Prepayment
Trigger” shall have the meaning provided in the definition of the term Casualty Event.
“CFC”
shall mean a direct or indirect Subsidiary of the Borrower that is a “controlled foreign corporation” within the meaning
of Section 957 of the Code.
“CFC Holding Company”
shall mean a direct or indirect Domestic Subsidiary of the Borrower substantially all of the assets of which consist of Capital Stock,
Stock Equivalents and/or Indebtedness of one or more CFCs.
“Change in Law”
shall mean (i) the adoption of any law, treaty, order, policy, rule, or regulation after the Closing Date, (ii) any change
in any law, treaty, order, policy, rule, or regulation or in the interpretation or application thereof by any Governmental Authority
after the Closing Date or (iii) compliance by any Lender with any guideline, request, directive, or order issued or made after the
Closing Date by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law), including,
for avoidance of doubt any such adoption, change or compliance in respect of (a) the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, rules, regulations, guidelines, or directives thereunder or issued in connection therewith and (b) all
requests, rules, guidelines, requirements, or directives promulgated by the Bank for International Settlements, the Basel Committee on
Banking Supervision (or any successor or similar authority), or the United States or foreign regulatory authorities pursuant to Basel
III.
14
“Change of Control”
shall mean and be deemed to have occurred if any Person, entity, or “group” (within the meaning of Section 13(d) or
14(d) of the Securities Exchange Act), other than the Permitted Holders, shall at any time have acquired direct or indirect beneficial
ownership of a percentage of the voting power of the outstanding Voting Stock of Holdings that exceeds 35% thereof, unless the Permitted
Holders have, at such time, the right or the ability by voting power, contract, or otherwise to elect or designate for election at least
a majority of the board of directors of Holdings. For the purpose of this definition, at any time when a majority of the outstanding
Voting Stock of Holdings is directly or indirectly owned by a Parent Entity or, if applicable, a Parent Entity acts as the manager, managing
member or general partner of Holdings, references in this definition to “Holdings” shall be deemed to refer to the ultimate
Parent Entity that directly or indirectly owns such Voting Stock or acts as (or, if applicable, is a Parent Entity that directly or indirectly
owns a majority of the outstanding Voting Stock of) such manager, managing member or general partner. For purposes of this definition,
(i) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5 under the Securities Exchange Act,
(ii) the phrase Person or “group” is within the meaning of Section 13(d) or 14(d) of the Securities Exchange
Act, but excluding any employee benefit plan of such Person or “group” and its subsidiaries and any Person acting in its
capacity as trustee, agent or other fiduciary or administrator of any such plan, (iii) if any Person or “group” includes
one or more Permitted Holders, the issued and outstanding Equity Interests of Holdings directly or indirectly owned by the Permitted
Holders that are part of such Person or “group” shall not be treated as being owned by such Person or “group”
for purposes of determining whether this definition is triggered and (iv) a Person or group shall not be deemed to beneficially
own Voting Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement
(or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Voting Stock in connection
with the transactions contemplated by such agreement.
“Class”
(i) when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Credit Loans, Additional Revolving Credit Loans, New Revolving Credit Loans, Initial Term Loans, New Term Loans (of each
Series), Extended Term Loans (of the same Extension Series), Replacement Term Loans (of the same series), Extended Revolving Credit Loans
(of the same Extension Series), or Swingline Loans and (ii) when used in reference to any Commitment, refers to whether such Commitment
is a Revolving Credit Commitment, an Additional Revolving Credit Commitment, a New Revolving Credit Commitment, an Extended Revolving
Credit Commitment (of the same Extension Series), or a New Term Loan Commitment.
“Closing Date”
shall mean December 18, 2013.
“CME Term SOFR Administrator”
shall mean CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR)
(or a successor administrator).
“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time.
“Collateral”
shall mean all property pledged or mortgaged or purported to be pledged or mortgaged pursuant to the Security Documents, excluding in
all events Excluded Property.
“Collateral Agent”
shall mean JPMorgan Chase Bank, N.A., as collateral agent under the Security Documents, or any successor collateral agent pursuant to
Section 12.9, and any Affiliate or designee of JPMorgan Chase Bank, N.A. may act as the Collateral Agent under any Credit
Document.
“Commitment Fee”
shall have the meaning provided in Section 4.1(a).
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“Commitment Fee
Rate” shall mean (a) until delivery of financial statements and a related Compliance Certificate for the first fiscal
quarter ending on or after the Tenth Amendment Effective Date pursuant to Section 9.1, a rate per annum equal to Level II
Status, and (b) thereafter, a rate per annum set forth below opposite the Status in effect on such day:
Status
Commitment Fee Rate
Level I Status
0.375 %
Level II Status
0.25 %
Any increase or decrease
in the Commitment Fee Rate resulting from a change in the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio shall become
effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 9.1(d).
Notwithstanding the foregoing,
(a) the Commitment Fee Rate in respect of any Class of Extended Revolving Credit Commitments or any Extended Revolving Credit
Loans shall be the applicable percentages per annum set forth in the relevant Extension Amendment, (b) the Commitment Fee Rate in
respect of any Class of Additional Revolving Credit Commitments, any Additional Revolving Credit Loans or any Incremental Loans
shall be the applicable percentages per annum set forth in the relevant Joinder Agreement and (c) the Commitment Fee Rate in respect
of any Class of Refinancing Indebtedness that would constitute Revolving Credit Commitments shall be the applicable percentages
per annum set forth in the relevant agreement.
Notwithstanding anything
to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the Consolidated
First Lien Secured Debt to Consolidated EBITDA Ratio set forth in any Compliance Certificate delivered to the Administrative Agent is
inaccurate for any reason and the result thereof is that the Lenders received interest or fees for any period based on an Commitment
Fee Rate that is less than that which would have been applicable had the Consolidated First Lien Secured Debt to Consolidated EBITDA
Ratio been accurately determined, then, for all purposes of this Agreement, the Commitment Fee Rate for any day occurring within the
period covered by such Compliance Certificate shall retroactively be deemed to be the relevant percentage as based upon the accurately
determined Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio for such period and any shortfall in the interest or fees
theretofore paid by the Borrower for the relevant period as a result of the miscalculation of the Consolidated First Lien Secured Debt
to Consolidated EBITDA Ratio shall be deemed to be (and shall be) due and payable at the time the interest or fees for such period were
required to be paid; provided that notwithstanding the foregoing, so long as an Event of Default described in Section 11.5
has not occurred with respect to the Borrower, such shortfall shall be due and payable within five Business Days following the written
demand thereof by the Administrative Agent and no Default shall be deemed to have occurred as a result of such non-payment until the
expiration of such five Business Day period. In addition, at the option of the Required Revolving Credit Lenders, at any time during
which the Borrower shall have failed to deliver any of the Section 9.1 Financials by the applicable date required under Section 9.1,
then the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio shall be deemed to be in Level I Status for the purposes of
determining the Commitment Fee Rate (but only for so long as such failure continues, after which such ratio and Status and shall be determined
based on the then existing Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio). “Commitments” shall mean,
with respect to each Lender (to the extent applicable), such Lender’s Initial Term Loan Commitment, New Term Loan Commitment, Revolving
Credit Commitment, New Revolving Credit Commitment, Extended Revolving Credit Commitment, Additional Revolving Credit Commitment or Incremental
Revolving Credit Commitment.
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“Commitments”
shall mean, with respect to each Lender (to the extent applicable), such Lender’s Revolving Credit Commitment, New Revolving Credit
Commitment, Extended Revolving Credit Commitment, Additional Revolving Credit Commitment, or New Term Loan Commitment.
“Commodity Exchange
Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications”
shall have the meaning provided in Section 13.17(a).
“Compliance Certificate”
shall mean a certificate of a responsible financial or accounting officer of Holdings or the Borrower delivered pursuant to Section 9.1(d) for
the applicable Test Period.
“Compliance Period”
shall mean any period during which the sum of (i) the aggregate principal amount of all Revolving Credit Loans, (ii) Swingline
Loans then outstanding, and (iii) the aggregate face amount of Letters of Credit then outstanding (other than (a) Cash Collateralized
Letters of Credit and (b) non-Cash Collateralized Letters of Credit in an aggregate face amount not to exceed $50,000,000) at such
time exceeds 35.0% of the amount of the Total Revolving Credit Commitment.
“Confidential Information”
shall have the meaning provided in Section 13.16.
“Confidential Information
Memorandum” shall mean the Confidential Information Memorandum of Holdings dated December 3, 2013.
“Consolidated Depreciation
and Amortization Expense” shall mean with respect to any Person for any period, the total amount of depreciation and amortization
expense, including the amortization of deferred financing fees or costs, debt issuance costs, commissions, fees, and expenses, capitalized
expenditures (including Capitalized Software Expenditures), customer acquisition costs, the amortization of original issue discount resulting
from the issuance of Indebtedness at less than par and incentive payments, conversion costs, and contract acquisition costs of such Person
and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated EBITDA”
shall mean, with respect to any Person and its Restricted Subsidiaries on a consolidated basis for any period, the Consolidated Net Income
of such Person for such period:
(i) increased
(without duplication) by:
(a) provision
for taxes based on income or profits or capital, including, without limitation, U.S. federal, state, non-U.S., franchise, excise, value
added, and similar taxes and foreign withholding taxes of such Person paid or accrued during such period, including any penalties and
interest related to such taxes or arising from any tax examinations, in each case to the extent deducted (and not added back) in computing
Consolidated Net Income, plus
(b) Fixed
Charges of such Person for such period (including (1) net losses on Hedging Obligations or other derivative instruments entered
into for the purpose of hedging interest rate risk and (2) costs of surety bonds in connection with financing activities, in each
case, to the extent included in Fixed Charges), together with items excluded from the definition of Consolidated Interest Expense and
any non-cash interest expense, in each case to the extent the same were deducted (and not added back) in calculating such Consolidated
Net Income, plus
17
(c) Consolidated
Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing
Consolidated Net Income, plus
(d) any
expenses, fees, charges, or losses (other than depreciation or amortization expense) related to any Equity Offering, Permitted Investment,
Restricted Payment, acquisition, disposition, recapitalization, or the incurrence of Indebtedness permitted to be incurred by this Agreement
(including a refinancing thereof) (whether or not successful and including any such transaction consummated prior to the Closing Date),
including (1) all Transaction Expenses, (2) such fees, expenses, or charges related to the offering of the Credit Documents
and any other credit facilities or debt issuances, and (3) any amendment or other modification of the Loans hereunder or other Indebtedness,
and, in each case, deducted (and not added back) in computing Consolidated Net Income, plus
(e) any
other non-cash charges, including any write offs, write downs, expenses, losses, any effects of adjustments resulting from the application
of purchase accounting, purchase price accounting (including any step-up in inventory and loss of profit on the acquired inventory) or
other items to the extent the same were deducted (and not added back) in computing Consolidated Net Income (provided that if any
such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof
in such future period shall be deducted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that
was paid in a prior period), plus
(f) the
amount of any net income (loss) attributable to non controlling interests in any non-Wholly-Owned Subsidiary deducted (and not added
back) in such period in calculating Consolidated Net Income, plus
(g) the
amount of management, monitoring, consulting, and advisory fees (including termination fees) and related indemnities and expenses paid
or accrued in such period to the Initial Investors or any of their respective Affiliates, plus
(h) costs
of surety bonds incurred in such period in connection with financing activities, plus
(i) the
amount of reasonably identifiable and factually supportable “run-rate” cost savings, operating expense reductions, operating
enhancements and other synergies that are projected by the Borrower in good faith to result from actions either taken or expected to
be taken within 24 months of the determination to take such action, net of the amount of actual benefits realized prior to or during
such period from such actions (which cost savings, operating expense reductions, operating enhancements and synergies shall be calculated
on a Pro Forma Basis as though such cost savings, operating expense reductions, operating enhancements or synergies had been realized
on the first day of such period), plus
(j) the
amount of loss or discount on sale of receivables and related assets to the Receivables Subsidiary in connection with a Receivables Facility,
plus
(k) any
costs or expense incurred by Holdings or a Restricted Subsidiary pursuant to any management equity plan or stock option or phantom equity
plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent
that such cost or expenses are funded with cash proceeds contributed to the capital of Holdings or net cash proceeds of an issuance of
Equity Interests of Holdings (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation
set forth in Section 10.5(a)(iii) and have not been relied on for purposes of any incurrence of Indebtedness pursuant
to Section 10.1(l)(i), plus
18
(l) the
amount of expenses relating to payments made to option, phantom equity or profits interest holders of any direct or indirect parent company
of Holdings or any of its direct or indirect parent companies in connection with, or as a result of, any distribution being made to shareholders
of such Person or its direct or indirect parent companies, which payments are being made to compensate such option, phantom equity or
profits interest holders as though they were equity holders at the time of, and entitled to share in, such distribution, in each case
to the extent permitted under this Agreement and expenses relating to distributions made to equity holders of such Person or its direct
or indirect parent companies resulting from the application of Financial Accounting Standards Codification Topic 718— Compensation
– Stock Compensation (formerly Financial Accounting Standards Board Statement No. 123 (Revised 2004)), plus
(m) with
respect to any joint venture that is not a Restricted Subsidiary, an amount equal to the proportion of those items described in clauses
(a) and (c) above relating to such joint venture corresponding to Holdings’ and the Restricted Subsidiaries’
proportionate share of such joint venture’s Consolidated Net Income (determined as if such joint venture were a Restricted Subsidiary),
plus
(n) costs
associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the
rules and regulations promulgated in connection therewith and Public Company Costs, plus
(o) cash
receipts (or any netting arrangements resulting in reduced cash expenses) not included in Consolidated EBITDA in any period solely to
the extent that the corresponding non-cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant
to paragraph (ii) below for any previous period and not added back, plus
(p) to
the extent not already included in the Consolidated Net Income, (1) any expenses and charges that are reimbursed by indemnification
or other similar provisions in connection with any investment or any sale, conveyance, transfer, or other Asset Sale of assets permitted
hereunder and (2) to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination
that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount
is (A) not denied by the applicable carrier in writing within 180 days and (B) in fact reimbursed within 365 days of the date
of the determination by the Borrower that there exists such evidence (with a deduction for any amount so added back to the extent not
so reimbursed within such 365 days), expenses with respect to liability or casualty events or business interruption, plus
(q) for
any Test Period, the aggregate amount of “run-rate” Consolidated Net Income projected by the Borrower in good faith to be
attributable to New Contracts entered into during such Test Period (or following such Test Period but prior to the date for the delivery
of the financial statements for such Test Period pursuant to Section 9.1(a) or (b)) (which amount shall be calculated
on a Pro Forma Basis as though the full annual amount of such Consolidated Net Income attributable to such New Contracts had been realized
during such Test Period (without duplication of any amounts attributable to such New Contracts already received in such Test Period)),
plus
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(r) charges,
expenses, and other items described in the Confidential Information Memorandum or the Sponsor Model, plus
(s) any
net pension or other post employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including
amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at
the date of initial application of FASB Accounting Standards Codification Topic 715—Compensation—Retirement Benefits, and
any other items of a similar nature, plus
(ii) decreased
by (without duplication):
(a) non-cash
gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains which represent the reversal of
any accrual of, or cash reserve for, anticipated cash charges that reduced Consolidated EBITDA in any prior period other than non-cash
gains relating to the application of Financial Accounting Standards Codification Topic 840— Leases (formerly Financial Accounting
Standards Board Statement No. 13); provided that, to the extent non cash gains are deducted pursuant to this clause (ii)(a) for
any previous period and not otherwise added back to Consolidated EBITDA, Consolidated EBITDA shall be increased by the amount of any
cash receipts (or any netting arrangements resulting in reduced cash expenses) in respect of such non cash gains received in subsequent
periods to the extent not already included therein, plus
(b) for
any Test Period, the aggregate amount of “run-rate” Consolidated Net Income attributable to Terminated Contracts that have
terminated or expired during such Test Period (or following such Test Period but prior to the date for delivery of the financial statements
for such Test Period pursuant to Section 9.1(a) or (b)) (which amount shall be calculated on a Pro Forma Basis
so as to eliminate the full annual amount of such Consolidated Net Income attributable to such Terminated Contracts during such Test
Period), plus
(iii) increased
or decreased by (without duplication):
(a) any
net gain or loss resulting in such period from currency gains or losses related to Indebtedness, intercompany balances, and other balance
sheet items, plus or minus, as the case may be, and
(b) any
net gain or loss resulting in such period from Hedging Obligations, and the application of Financial Accounting Standards Codification
Topic 815—Derivatives and Hedging (ASC 815) (formerly Financing Accounting Standards Board Statement No. 133), and its related
pronouncements and interpretations, or the equivalent accounting standard under GAAP or an alternative basis of accounting applied in
lieu of GAAP.
For the avoidance of doubt:
(i) to
the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period any adjustments
resulting from the application of ASC 815 and its related pronouncements and interpretations, or the equivalent accounting standard under
GAAP or an alternative basis of accounting applied in lieu of GAAP;
20
(ii) there
shall be included in determining Consolidated EBITDA for any period, without duplication, (1) the Acquired EBITDA of any Person
or business, or attributable to any property or asset acquired by Holdings or any Restricted Subsidiary during such period (but not the
Acquired EBITDA of any related Person or business or any Acquired EBITDA attributable to any assets or property, in each case to the
extent not so acquired) to the extent not subsequently sold, transferred, abandoned, or otherwise disposed by Holdings or such Restricted
Subsidiary (each such Person, business, property, or asset acquired and not subsequently so disposed of, an “Acquired Entity
or Business”) and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during
such period (each, a “Converted Restricted Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity
or Business or Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such acquisition or
conversion) and (2) an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment
with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition);
and
(iii) to
the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period the Disposed
EBITDA of any Person, property, business, or asset sold, transferred, abandoned, or otherwise disposed of, closed or classified as discontinued
operations by Holdings or any Restricted Subsidiary during such period (each such Person, property, business, or asset so sold or disposed
of, a “Sold Entity or Business”), and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted
Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”) based on the actual Disposed EBITDA of
such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such
sale, transfer, or disposition or conversion); provided that for the avoidance of doubt, notwithstanding any classification under
GAAP of any Person or business in respect of which a definitive agreement for the disposition thereof has been entered into as discontinued
operations, the Disposed EBITDA of such Person or business shall not be excluded pursuant to this paragraph until such disposition shall
have been consummated.
Unless expressly specified otherwise or required
by context, references in this Agreement to Consolidated EBITDA shall refer to the Consolidated EBITDA of Holdings.
“Consolidated First
Lien Secured Debt” shall mean Consolidated Total Debt as of such date secured by a Lien on all of the Collateral that ranks
on an equal priority basis (or super priority basis by operation of law) (but without regard to the control of remedies) with Liens on
the Collateral securing the Obligations and excluding, for the avoidance of doubt, Hedging Obligations; provided that Consolidated
First Lien Secured Debt shall not include Letters of Credit, except to the extent of Unpaid Drawings thereunder.
“Consolidated First
Lien Secured Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated
First Lien Secured Debt as of such date of determination, minus cash and Cash Equivalents (in each case, free and clear of all
Liens other than Permitted Liens) of Holdings and the Restricted Subsidiaries (other than the proceeds of any Indebtedness being incurred
and giving rise to the need to calculate the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio) to (ii) Consolidated
EBITDA of Holdings for the Test Period most recently ended on or prior to such date of determination, in each case with such pro forma
adjustments to Consolidated First Lien Secured Debt and Consolidated EBITDA as are appropriate and consistent with Section 1.12.
21
“Consolidated Interest
Expense” shall mean the sum of cash interest expense (including that attributable to Capitalized Lease Obligations), net of
cash interest income of such Person and its Restricted Subsidiaries with respect to all outstanding Indebtedness of such Person and its
Restricted Subsidiaries, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’
acceptance financing and net costs under hedging agreements, but excluding, for the avoidance of doubt, (a) amortization of deferred
financing costs, debt issuance costs, commissions, fees and expenses and any other amounts of non cash interest (including as a result
of the effects of acquisition method accounting or pushdown accounting), (b) non cash interest expense attributable to the movement
of the mark to market valuation of Indebtedness or obligations under Hedging Obligations or other derivative instruments pursuant to
FASB Accounting Standards Codification Topic 815—Derivatives and Hedging, (c) any one time cash costs associated with breakage
in respect of hedging agreements for interest rates, (d) commissions, discounts, yield, make whole premium and other fees and charges
(including any interest expense) incurred in connection with any Receivables Facility, (e) any “additional interest”
owing pursuant to a registration rights agreement with respect to any securities, (f) any payments with respect to make whole premiums
or other breakage costs of any Indebtedness, including, without limitation, any Indebtedness issued in connection with the Transactions,
(g) penalties and interest relating to taxes, (h) accretion or accrual of discounted liabilities not constituting Indebtedness,
(i) interest expense attributable to a direct or indirect Parent Entity resulting from push down accounting, (j) any expense
resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, and (k) any
interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent
or potential), with respect thereto and with respect to the Transactions, any acquisition or Investment permitted hereunder, all as calculated
on a consolidated basis.
For purposes of this definition,
interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the
rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.
“Consolidated Net
Income” shall mean, with respect to any Person for any period, the aggregate of the Net Income, of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, and on an after tax basis to the extent appropriate, and otherwise determined
in accordance with GAAP; provided that, without duplication,
(i) extraordinary,
non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses (including any unusual or non-recurring
operating expenses directly attributable to the implementation of cost savings initiatives and any accruals or reserves in respect of
any extraordinary, non-recurring or unusual items), severance, relocation costs, integration and facilities’ or bases’ opening
or closing costs and other business optimization expenses (including related to new product introductions and other strategic or cost
savings initiatives), restructuring charges, accruals or reserves (including restructuring and integration costs related to acquisitions
and adjustments to existing reserves), whether or not classified as restructuring expense on the consolidated financial statements, signing
costs, retention or completion bonuses, and one-time compensation charges other executive recruiting and retention costs, transition
costs, costs related to closure/consolidation of facilities or bases and curtailments or modifications to pension and post retirement
employee benefit plans (including any settlement of pension liabilities and charges resulting from changes in estimates, valuations and
judgments) and (b) any other unusual or non-recurring items shall be excluded,
(ii) the
Net Income for such period shall not include the cumulative effect of a change in accounting principles and changes as a result of the
adoption or modification of accounting policies during such period shall be excluded,
(iii) any
net after-tax gains or losses on disposal of disposed, abandoned, transferred, closed, or discontinued operations, and any gain (loss)
(less all fees and expenses relating thereto) on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments
in the ordinary course of business) or discontinued operations (but if such operations are classified as discontinued due to the fact
that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed
of) shall be excluded,
22
(iv) any
effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions or abandonments other than
in the ordinary course of business, as determined in good faith by the board of directors of Holdings, shall be excluded,
(v) the
Net Income for such period of any Person that is not the Borrower or Subsidiary, or is an Unrestricted Subsidiary, or that is accounted
for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of Holdings shall be increased
by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash or
Cash Equivalents) to the referent Person or a Restricted Subsidiary thereof in respect of such period,
(vi) solely
for the purpose of determining the amount available for Restricted Payments under clause (a)(iii)(A) of Section 10.5
the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent the declaration
or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination
permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted
Subsidiary or its equity holders, unless such restriction with respect to the payment of dividends or similar distributions (a) has
been legally waived, or otherwise released, (b) is imposed pursuant to this Agreement and other Credit Documents, Permitted Debt
Exchange Notes, Incremental Loans, or Permitted Other Indebtedness, or (c) arises pursuant to an agreement or instrument if
the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to
the Secured Parties than the encumbrances and restrictions contained in the Credit Documents (as determined by the Borrower in good faith);
provided that Consolidated Net Income of the referent Person will be increased by the amount of dividends or other distributions
or other payments actually paid in cash (or to the extent converted into cash) or Cash Equivalents to such Person or a Restricted Subsidiary
in respect of such period, to the extent not already included therein, shall be excluded
(vii) effects
of adjustments (including the effects of such adjustments pushed down to Holdings and the Restricted Subsidiaries) in any line item in
such Person’s consolidated financial statements required or permitted by Financial Accounting Standards Codification Topic 805
– Business Combinations and Topic 350 – Intangibles-Goodwill and Other (ASC 805 and ASC 350) (formerly Financial Accounting
Standards Board Statement Nos. 141 and 142, respectively) resulting from the application of purchase accounting, including in relation
to the Transactions and any acquisition that is consummated after the Closing Date or the amortization or write-off of any amounts thereof,
net of taxes, shall be excluded,
(viii) (a) any
after-tax effect of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments
(including deferred financing costs written off and premiums paid), (b) any non-cash income (or loss) related to currency gains
or losses related to Indebtedness, intercompany balances, and other balance sheet items and to Hedging Obligations pursuant to ASC 815
(or such successor provision), and (c) any non-cash expense, income, or loss attributable to the movement in mark to market valuation
of foreign currencies, Indebtedness, or derivative instruments pursuant to GAAP, shall be excluded,
23
(ix) any
impairment charge, asset write-off, or write-down pursuant to ASC 350 and Financial Accounting Standards Codification Topic 360 –
Impairment and Disposal of Long-Lived Assets (ASC 360) (formerly Financial Accounting Standards Board Statement No. 144) and the
amortization of intangibles arising pursuant to ASC 805 shall be excluded,
(x) (a) any
non-cash compensation expense recorded from grants of, or in connection with any share based compensation arrangements including, stock
appreciation or similar rights, phantom equity, stock options or units, restricted stock, capital or profits interests or other rights
to officers, directors, managers, or employees and (b) non-cash income (loss) attributable to deferred compensation plans or trusts,
shall be excluded,
(xi) any
fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment,
recapitalization, Asset Sale, issuance, or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment
or modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing Date and any such
transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any
such transaction shall be excluded,
(xii) accruals
and reserves (including contingent liabilities) that are established or adjusted within twelve months after the Closing Date that are
so required to be established as a result of the Transactions in accordance with GAAP, or changes as a result of adoption or modification
of accounting policies, shall be excluded,
(xiii) to
the extent covered by insurance or indemnification and actually reimbursed, or, so long as the Borrower has made a determination that
there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent
that such amount is (a) not denied by the applicable carrier or indemnifying party in writing within 180 days and (b) in fact
reimbursed within 365 days of the date of the determination by the Borrower that there exists such evidence (with a deduction for any
amount so added back to the extent not so reimbursed within 365 days), losses and expenses with respect to liability or casualty events
or business interruption shall be excluded,
(xiv) any
deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of
any valuation allowance related to such items, shall be excluded,
(xv) any
costs or expenses incurred during such period relating to environmental remediation, litigation, or other disputes in respect of events
and exposures that occurred prior to the Closing Date shall be excluded, and
(xvi) Consolidated
Net Income for any Test Period shall be (a) increased by the aggregate amount of “run-rate” Consolidated Net Income
projected by the Borrower in good faith to be attributable to New Contracts entered into during such Test Period (or following such Test
Period but prior to the date for the delivery of the financial statements for such Test Period pursuant to Section 9.1(a) or
(b)) (which amount shall be calculated on a Pro Forma Basis as though the full annual amount of such Consolidated Net Income attributable
to such New Contracts had been realized during such Test Period (without duplication of any amounts attributable to such New Contracts
already received in such Test Period)) and (b) decreased by the aggregate amount of “run-rate” Consolidated Net Income
attributable to Terminated Contracts that have terminated or expired during such Test Period (or following such Test Period but prior
to the date for delivery of the financial statements for such Test Period pursuant to Section 9.1(a) or (b))
(which amount shall be calculated on a Pro Forma Basis so as to eliminate the full annual amount of such Consolidated Net Income attributable
to such Terminated Contracts during such Test Period).
24
“Consolidated Total
Assets” shall mean, as of any date of determination, the amount that would, in conformity with GAAP, be set forth opposite
the caption “total assets” (or any like caption) on the most recent consolidated balance sheet of Holdings and the Restricted
Subsidiaries at such date.
“Consolidated Total
Debt” shall mean, as at any date of determination, an amount equal to the sum of the aggregate amount of all outstanding Indebtedness
of Holdings and the Restricted Subsidiaries on a consolidated basis consisting of third party Indebtedness for borrowed money, Capitalized
Lease Obligations and debt obligations evidenced by promissory notes and similar instruments (and excluding, for the avoidance of doubt,
Hedging Obligations); provided that Consolidated Total Debt shall not include Letters of Credit, except to the extent of Unpaid
Drawings thereunder; provided further that the effects of pushdown accounting shall be excluded.
“Consolidated Total
Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated Total Debt
as of such date of determination, minus cash and Cash Equivalents (in each case, free and clear of all Liens other than Permitted
Liens) of Holdings and the Restricted Subsidiaries (other than the proceeds of any Indebtedness being incurred and giving rise to the
need to calculate the Consolidated Total Debt to Consolidated EBITDA Ratio) to (ii) Consolidated EBITDA of Holdings for the Test
Period most recently ended on or prior to such date of determination, in each case with such pro forma adjustments to Consolidated Total
Debt and Consolidated EBITDA as are appropriate and consistent with Section 1.12.
“Consolidated Working
Capital” shall mean, at any date, the excess of (i) the sum of all amounts (other than cash and Cash Equivalents) that
would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated
balance sheet of Holdings and the Restricted Subsidiaries at such date excluding the current portion of current and deferred income taxes
over (ii) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current
liabilities” (or any like caption) on a consolidated balance sheet of Holdings and the Restricted Subsidiaries on such date, including
deferred revenue but excluding (for purposes of both clauses (i) and (ii) above), without duplication, (a) the current
portion of any Funded Debt, (b) all Indebtedness consisting of Loans and Letter of Credit Exposure and Capital Leases to the extent
otherwise included therein, (c) the current portion of interest, (d) the current portion of current and deferred income taxes,
(e) any liabilities that are not Indebtedness and will not be settled in cash or Cash Equivalents during the next succeeding twelve
month period after such date, (f) the effects from applying purchase accounting, (g) any accrued professional liability risks,
(h) restricted marketable securities and (i) deferred revenue reflected within current liabilities; provided that, for
purposes of calculating Excess Cash Flow, increases or decreases in working capital (A) arising from acquisitions or dispositions
by the Borrower and the Restricted Subsidiaries shall be measured from the date on which such acquisition or disposition occurred and
(B) shall exclude (I) the impact of non cash adjustments contemplated in the Excess Cash Flow calculation, (II) the impact
of adjusting items in the definition of “Consolidated Net Income” and (III) any changes in current assets or current
liabilities as a result of (x) the effect of fluctuations in the amount of accrued or contingent obligations, assets or liabilities
under hedging agreements or other derivative obligations, (y) any reclassification, other than as a result of the passage of time,
in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent or (z) the effects of acquisition
method accounting.
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“Contingent Obligations”
shall mean, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends, or other payment obligations
that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) 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 (iii) 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.
“Contract Consideration”
shall have the meaning provided in clause (k) of the definition of Excess Cash Flow.
“Contractual Requirement”
shall have the meaning provided in Section 8.3.
“Converted Restricted
Subsidiary” shall have the meaning provided in the definition of the term Consolidated EBITDA.
“Converted Unrestricted
Subsidiary” shall have the meaning provided in the definition of the term Consolidated EBITDA.
“Corresponding Tenor”
with respect to any Available Tenor shall mean, as applicable, either a tenor (including overnight) or an interest payment period having
approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covered Entity”
shall mean any of the following:
(i) a “covered
entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered
bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered
FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party”
shall have the meaning provided in Section 13.24.
“Credit Documents”
shall mean this Agreement, each Joinder Agreement, each Extension Amendment, each Permitted Repricing Amendment, the Guarantees, the
Security Documents, any documents or certificates executed by the Borrower in favor of the Letter of Credit Issuer relating to any Letter
of Credit and any promissory notes issued by the Borrower pursuant hereto.
“Credit Event”
shall mean and include the making (but not the conversion or continuation) of a Loan and the issuance of a Letter of Credit.
“Credit Facilities”
shall mean, collectively, each category of Commitments and each extension of credit hereunder.
26
“Credit Facility”
shall mean a category of Commitments and extensions of credit thereunder.
“Credit Party”
shall mean Holdings, the Borrower, and the other Guarantors.
“Cure Amount”
shall have the meaning provided in Section 11.14.
“Cure Right”
shall have the meaning provided in Section 11.14.
“Daily Simple SOFR”
shall mean, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day that is five (5) U.S.
Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate
Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day
immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s
Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change
in SOFR without notice to the Borrower; provided that if the Daily Simple SOFR rate as so determined would be less than the Floor,
such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Debt Incurrence
Prepayment Event” shall mean any issuance or incurrence by Holdings or any of the Restricted Subsidiaries of any Indebtedness
(excluding any Indebtedness permitted to be issued or incurred under Section 10.1 other than Section 10.1(w)(i)).
“Declined Proceeds”
shall have the meaning provided in Section 5.2(f).
“Default”
shall mean any event, act, or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Default Rate”
shall have the meaning provided in Section 2.8(c).
“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”
shall mean any Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the definition of Lender
Default.
“Deferred Net Cash
Proceeds” shall have the meaning provided such term in the definition of Net Cash Proceeds.
“Deferred Net Cash
Proceeds Payment Date” shall have the meaning provided such term in the definition of Net Cash Proceeds.
“Derivative Counterparty”
shall have the meaning provided in Section 13.16.
“Designated Jurisdiction”
shall mean any country or territory to the extent that such country or territory itself is the subject of any comprehensive Sanctions
(at the time of this Agreement, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea,
the non-Ukrainian government controlled areas of the Zaporizhzhia and Kherson regions of Ukraine, Cuba, Iran, North Korea and Syria).
27
“Designated Non-Cash
Consideration” shall mean the Fair Market Value of non-cash consideration received by Holdings or a Restricted Subsidiary in
connection with an Asset Sale that is so designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer
of Holdings or the Borrower, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection
with a subsequent sale of or collection on or other disposition of such Designated Non-Cash Consideration. A particular item of Designated
Non-Cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise
retired or sold or otherwise disposed of in compliance with Section 10.4.
“Designated Preferred
Stock” shall mean preferred stock of Holdings or any direct or indirect parent company of Holdings (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 Holdings or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an officer’s certificate
executed by the principal financial officer of Holdings or the parent company thereof, as the case may be, on the issuance date thereof,
the cash proceeds of which are excluded from the calculation set forth in Section 10.5(a)(iii).
“Disposed EBITDA”
shall mean, with respect to any Sold Entity or Business or any Converted Unrestricted Subsidiary for any period, the amount for such
period of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to Holdings
and the Restricted Subsidiaries in the definition of Consolidated EBITDA were references to such Sold Entity or Business or Converted
Unrestricted Subsidiary and its respective Subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business
or Converted Unrestricted Subsidiary, as the case may be.
“disposition”
shall have the meaning assigned such term in clause (i) of the definition of Asset Sale.
“Disqualified Lenders”
shall mean such Persons (i) that have been specified in writing to the Administrative Agent and the Joint Lead Arrangers and Bookrunners
prior to the commencement of “primary syndication” as being Disqualified Lenders, (ii) who are competitors of Holdings
and its Subsidiaries that are separately identified in writing by the Borrower or the Sponsor to the Administrative Agent from time to
time, and (iii) in the case of each of clauses (i) and (ii), any of their Affiliates (other than any such Affiliate
that is affiliated with a financial investor in such Person and that is not itself an operating company or otherwise an Affiliate of
an operating company so long as such Affiliate is a bona fide Fund) that are either (a) identified in writing by the Borrower or
the Sponsor to the Administrative Agent from time to time or (b) clearly identifiable on the basis of such Affiliate’s name.
The Borrower shall deliver any updates to the list of Disqualified Lenders and any modifications thereto to the Administrative Agent
via email to JPMDQ_Contact@jpmorgan.com, and any such updates or modifications shall become effective two Business Days after delivery
thereof to the Administrative Agent. Notwithstanding the foregoing, (x) each Credit Party and the Lenders acknowledge and agree
that the Administrative Agent shall not have any responsibility or obligation to determine whether any Lender or potential Lender is
a Disqualified Lender and the Administrative Agent shall have no liability with respect to any assignment or participation made to a
Disqualified Lender and (y) any such designation of a Disqualified Lender may not apply retroactively to disqualify any Person (A) that
has previously acquired an assignment or participation in any Credit Facility or (B) to an assignment or participation that is pending
and was entered into prior to the date on which such Person became so designated.
28
“Disqualified Stock”
shall mean, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which
it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable
(other than solely for Qualified Stock), other than as a result of a change of control, asset sale, condemnation event or similar event,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely for Qualified
Stock), other than as a result of a change of control, asset sale, condemnation event or similar event, in whole or in part, in each
case, prior to the date that is 91 days after the Latest Term Loan Maturity Date hereunder; provided that if such Capital Stock
is issued to any plan for the benefit of employees of Holdings or its Subsidiaries or by any such plan to such employees, such Capital
Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by Holdings or its Subsidiaries in
order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death, or disability.
“Distressed Person”
shall have the meaning provided in the definition of the term Lender-Related Distress Event.
“Dollar Equivalent”
shall mean, at any time, (i) with respect to any amount denominated in Dollars, such amount, and (ii) with respect to any amount
denominated in any currency other than Dollars, the equivalent amount thereof in Dollars, as determined by the Administrative Agent on
the basis of the Spot Rate (determined on the most recent date of determination) for the purchase of Dollars with such currency.
“Dollars”
and “$” shall mean dollars in lawful currency of the United States.
“Domestic Subsidiary”
shall mean a Subsidiary that is organized under the laws of the United States, any state thereof, or the District of Columbia.
“EEA Financial Institution”
shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision
of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described
in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision
with its parent.
“EEA Member Country”
shall mean any of the member states of the European Union, Iceland, Liechtenstein, Norway and the United Kingdom.
“EEA Resolution
Authority” shall mean any public administrative authority or any person entrusted with public administrative authority of any
EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Yield”
shall mean, as to any Indebtedness, the effective yield on such Indebtedness in the reasonable determination of the Administrative Agent
in consultation with the Borrower and consistent with generally accepted financial practices, taking into account the applicable interest
rate margins, any interest rate floors (the effect of which floors shall be determined in a manner set forth in the proviso below), any
credit spread adjustments (the effect of which credit spread adjustments shall be determined in a manner set forth in the proviso below)
or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (i) the
remaining weighted average life to maturity of such Indebtedness and (ii) the four years following the date of incurrence thereof)
payable generally to Lenders or other institutions providing such Indebtedness in connection with the initial primary syndication thereof,
but excluding any arrangement, structuring, ticking, or other similar fees payable in connection therewith that are not generally shared
with the relevant Lenders and, if applicable, consent fees for an amendment paid generally to consenting Lenders; provided that
with respect to any Indebtedness that includes a “SOFR floor” or “ABR floor,” (a) to the extent that the
Term SOFR Rate (with an Interest Period of three months) or ABR (without giving effect to any floors in such definitions), as applicable,
on the date that the Effective Yield is being calculated is less than such floor, the amount of such difference shall be deemed added
to the interest rate margin for such Indebtedness for the purpose of calculating the Effective Yield, and (b) to the extent that
the Term SOFR Rate (with an Interest Period of three months) or ABR (without giving effect to any floors in such definitions), as applicable,
on the date that the Effective Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating
the Effective Yield.
29
“Electronic Signature”
shall mean an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person
with the intent to sign, authenticate or accept such contract or record.
“Eleventh Amendment”
shall mean that certain Amendment No. 11 to Credit Agreement, dated as of the Eleventh Amendment Effective Date, to this Agreement.
“Eleventh Amendment
Effective Date” shall mean June 17, 2026.
“Environmental Claims”
shall mean any and all actions, suits, orders, decrees, demand letters, claims, notices of noncompliance or potential responsibility
or violation, or proceedings pursuant to any Environmental Law or any permit issued, or any approval given, under any such Environmental
Law (hereinafter, “Claims”), including, without limitation, (i) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial, or other actions or damages pursuant to any Environmental Law and
(ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation, or injunctive
relief relating to the presence Release or threatened Release of Hazardous Materials or arising from alleged injury or threat of injury
to health or safety (to the extent relating to human exposure to Hazardous Materials), or the environment including, without limitation,
ambient air, indoor air, surface water, groundwater, soil, land surface and subsurface strata, and natural resources such as wetlands.
“Environmental Law”
shall mean any applicable federal, state, foreign, or local statute, law, rule, regulation, ordinance, code, and rule of common
law now or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including
any binding judicial or administrative order, consent decree, or judgment, relating to pollution or protection of the environment, including,
without limitation, ambient air, indoor air, surface water, groundwater, soil, land surface and subsurface strata and natural resources
such as flora, fauna, or wetlands, or protection of human health or safety (to the extent relating to human exposure to Hazardous Materials)
and including those relating to the generation, storage, treatment, transport, Release, or threat of Release of Hazardous Materials.
“Equity Interest”
shall mean Capital Stock and all warrants, options, or other rights to acquire Capital Stock, but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock.
“Equity Offering”
shall mean any public or private sale of common stock or preferred stock of Holdings or any direct or indirect parent company of Holdings
(excluding Disqualified Stock), other than: (i) public offerings with respect to Holdings’ or any of its direct or indirect
parent company’s common stock registered on Form S-8, (ii) issuances to any Subsidiary of Holdings, (iii) any such
public or private sale that constitutes an Excluded Contribution, and (iv) any Cure Amount.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
30
“ERISA Affiliate”
shall mean any trade or business (whether or not incorporated) that, together with any Credit Party, is treated as a single employer
under Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).
“ERISA Event”
shall mean (i) the failure of any Plan to comply with any provisions of ERISA and/or the Code (and applicable regulations under
either) or with the terms of such Plan; (ii) the existence with respect to any Plan of a non-exempt Prohibited Transaction; (iii) any
Reportable Event; (iv) the failure of any Credit Party or ERISA Affiliate to make by its due date a required installment under Section 430(j) of
the Code with respect to any Pension Plan or any failure by any Pension Plan to satisfy the minimum funding standards (within the meaning
of Section 412 of the Code or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; (v) a determination
that any Pension Plan is in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA);
(vi) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver
of the minimum funding standard with respect to any Pension Plan; (vii) the termination of, or the appointment of a trustee to administer,
any Pension Plan under Section 4042 of ERISA or the incurrence by any Credit Party or any of its ERISA Affiliates of any liability
under Title IV of ERISA with respect to the termination of any Pension Plan (other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA), including but not limited to the imposition of any Lien in favor of the PBGC or any Pension Plan; (viii) the
receipt by any Credit Party or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice to terminate any Pension
Plan under Section 4041 of ERISA or to appoint a trustee to administer any Pension Plan under Section 4042 of ERISA; (ix) the
failure by any Credit Party or any of its ERISA Affiliates to make any required contribution to a Multiemployer Plan; (x) the incurrence
by any Credit Party or any of its ERISA Affiliates of any liability with respect to the withdrawal from any Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a “substantial employer” (within the meaning of Section 4001(a)(2) of
ERISA), or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA, or the complete or
partial withdrawal (within the meaning of Section 4203 or 4205 of ERISA) from any Multiemployer Plan; (xi) the receipt by any
Credit Party or any of its ERISA Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, Insolvent, in “endangered” or “critical” status (within the
meaning of Section 432 of the Code or Section 305 of ERISA), or terminated (within the meaning of Section 4041A of ERISA);
or (xii) the failure by any Credit Party or any of its ERISA Affiliates to pay when due (after expiration of any applicable grace
period) any installment payment with respect to Withdrawal Liability under Section 4201 of ERISA.
“EU Bail-In Legislation
Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person),
as in effect from time to time.
“Event of Default”
shall have the meaning provided in Section 11.
“Excess Cash Flow”
shall mean, for any period, an amount equal to the excess of:
(i) the
sum, without duplication (in each case, for Holdings and the Restricted Subsidiaries on a consolidated basis), of:
(a) Consolidated
Net Income for such period,
(b) an
amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income and cash receipts
to the extent excluded in arriving at such Consolidated Net Income,
31
(c) decreases
in Consolidated Working Capital for such period (other than (1) reclassification of items from short-term to long-term or vice versa
and (2) any such decreases arising from acquisitions or Asset Sales by Holdings and the Restricted Subsidiaries completed during
such period or the application of purchase accounting),
(d) an
amount equal to the aggregate net non-cash loss on Asset Sales by Holdings and the Restricted Subsidiaries during such period (other
than Asset Sales in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income,
(e) cash
receipts in respect of Hedge Agreements during such period to the extent not otherwise included in Consolidated Net Income,
(f) increases
in current and non current deferred revenue to the extent deducted or not included in arriving at such Consolidated Net Income, and
(g) extraordinary
gains;
over (ii) the sum, without
duplication, of:
(a) an
amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income, cash charges to the extent excluded
in arriving at such Consolidated Net Income, and Transaction Expenses to the extent not deducted in arriving at such Consolidated Net
Income and paid in cash during such period,
(b) without
duplication of amounts deducted pursuant to clause (k) below in prior periods, the amount of Capital Expenditures or acquisitions
of Intellectual Property accrued or made in cash during such period, except to the extent that such Capital Expenditures or acquisitions
were financed with the proceeds of long-term Indebtedness of Holdings or the Restricted Subsidiaries (unless such Indebtedness has been
repaid other than with the proceeds of long term indebtedness) other than intercompany loans,
(c) the
aggregate amount of all principal payments of Indebtedness of Holdings and the Restricted Subsidiaries (including (1) the principal
component of payments in respect of Capitalized Lease Obligations, (2) the amount of any scheduled repayment of Term Loans pursuant
to Section 2.5, and (3) the amount of a mandatory prepayment of Term Loans pursuant to Section 5.2(a) to
the extent required due to an Asset Sale that resulted in an increase to Consolidated Net Income and not in excess of the amount of such
increase but excluding (A) all other prepayments of Term Loans (in each case, including purchases of Term Loans by Holdings and
its Subsidiaries at or below par offered on a pro rata basis to all Term Loan Lenders of a Class and Dutch auctions offered on a
pro rata basis to all Term Loan Lenders of a Class in which case the amount of voluntary prepayments of Term Loans shall be deemed
not to exceed the actual purchase price of such Term Loans at or below par) and all voluntary prepayments of Permitted Other Indebtedness
(with a Lien on the Collateral ranking pari passu with the Liens on the Collateral securing the Obligations) and (B) all prepayments
of Revolving Loans (and any other revolving loans (unless there is an equivalent permanent reduction in commitments thereunder)) made
during such period, except to the extent financed with the proceeds of other long-term Indebtedness of Holdings or the Restricted Subsidiaries,
32
(d) an
amount equal to the aggregate net non-cash gain on Asset Sales by Holdings and the Restricted Subsidiaries during such period (other
than Asset Sales in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income,
(e) increases
in Consolidated Working Capital for such period (other than (1) reclassification of items from short-term to long-term or vice versa
and (2) any such increases arising from acquisitions or Asset Sales by Holdings and the Restricted Subsidiaries completed during
such period or the application of purchase accounting),
(f) payments
in cash by Holdings and the Restricted Subsidiaries during such period in respect of any purchase price holdbacks, earn out obligations,
and long-term liabilities of Holdings and the Restricted Subsidiaries other than Indebtedness, to the extent not already deducted from
Consolidated Net Income,
(g) without
duplication of amounts deducted pursuant to clause (k) below in prior fiscal periods, the aggregate amount of cash consideration
paid by Holdings and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions (but
excluding Permitted Investments of the type described in clauses (i) and (ii) thereof) made during such period constituting
Permitted Investments or made pursuant to Section 10.5 to the extent that such Investments were not financed with the proceeds
received from (1) the issuance or incurrence of long-term Indebtedness or (2) the issuance of Capital Stock,
(h) the
amount of dividends paid in cash during such period (on a consolidated basis) by Holdings and the Restricted Subsidiaries, to the extent
such dividends were not financed with the proceeds received from (1) the issuance or incurrence of long-term Indebtedness or (2) the
issuance of Capital Stock,
(i) the
aggregate amount of expenditures actually made by Holdings and the Restricted Subsidiaries in cash during such period (including expenditures
for the payment of financing fees and cash restructuring charges) to the extent that such expenditures are not expensed during such period
and are not deducted in calculating Consolidated Net Income,
(j) the
aggregate amount of any premium, make-whole, or penalty payments actually paid in cash by Holdings and the Restricted Subsidiaries during
such period that are made in connection with any prepayment of Indebtedness to the extent that such payments are not deducted in calculating
Consolidated Net Income,
(k) without
duplication of amounts deducted from Excess Cash Flow in other periods, (1) the aggregate consideration required to be paid in cash
by Holdings or any of its Restricted Subsidiaries pursuant to binding contracts, commitments, letters of intent or purchase orders (the
“Contract Consideration”) entered into prior to or during such period and (2) any planned cash expenditures by
the Borrower or any of the Restricted Subsidiaries (the “Planned Expenditures”), in the case of each of clauses
(1) and (2), relating to Permitted Acquisitions (or other Investments), Capital Expenditures, or acquisitions of Intellectual
Property or other assets to be consummated or made during the period of four consecutive fiscal quarters of Holdings following the end
of such period (except to the extent financed with any of the proceeds received from (A) the issuance or incurrence of long-term
Indebtedness or (B) the issuance of Equity Interests); provided that to the extent that the aggregate amount of cash actually
utilized to finance such Permitted Acquisitions (or other Investments), Capital Expenditures, or acquisitions of Intellectual Property
or other assets during such following period of four consecutive fiscal quarters is less than the Contract Consideration and Planned
Expenditures, the amount of such shortfall shall be added to the calculation of Excess Cash Flow, at the end of such period of four consecutive
fiscal quarters,
33
(l) the
amount of taxes (including penalties and interest) paid in cash or tax reserves set aside or payable (without duplication) in such period
to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period, and
(m) cash
expenditures in respect of Hedge Agreements during such fiscal year to the extent not deducted in arriving at such Consolidated Net Income
(n) decreases
in current and non current deferred revenue to the extent included or not deducted in arriving at such Consolidated Net Income, and
(o) extraordinary
losses.
“Excluded Contribution”
shall mean net cash proceeds, the Fair Market Value of marketable securities, or the Fair Market Value of Qualified Proceeds received
by Holdings from (i) contributions to its common equity capital, and (ii) the sale (other than to a Subsidiary of Holdings
or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of Holdings) of Capital
Stock (other than Disqualified Stock and Designated Preferred Stock) of Holdings, in each case designated as Excluded Contributions pursuant
to an officer’s certificate executed by either a senior vice president or the principal financial officer of the Borrower on the
date such capital contributions are made or the date such Equity Interests are sold, as the case may be, which are excluded from the
calculation set forth in Section 10.5(a)(iii); provided that (i) any non-cash assets shall qualify only if acquired
by a parent of Holdings in an arm’s-length transaction within the six months prior to such contribution and (ii) no Cure Amount
shall constitute an Excluded Contribution.
“Excluded Property”
shall have the meaning set forth in the Security Agreement.
“Excluded Stock
and Stock Equivalents” shall mean (i) any Capital Stock or Stock Equivalents with respect to which, in the reasonable
judgment of the Administrative Agent and the Borrower (as agreed to in writing), the cost or other consequences of pledging such Capital
Stock or Stock Equivalents in favor of the Secured Parties under the Security Documents shall be excessive in view of the benefits to
be obtained by the Lenders therefrom, (ii) solely in the case of any pledge of Capital Stock and Stock Equivalents of any (a) CFC
or (b) CFC Holding Company, any Voting Stock or Stock Equivalents of any class of such CFC or CFC Holding Company in excess of 65%
of the outstanding Voting Stock of such class, (iii) any Capital Stock or Stock Equivalents of any direct or indirect Subsidiary
of a CFC or CFC Holding Company, (iv) any Capital Stock or Stock Equivalents to the extent the pledge thereof would violate any
applicable Requirements of Law (including any legally effective requirement to obtain the consent of any Governmental Authority unless
such consent has been obtained) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code of any
applicable jurisdiction, (v) in the case of (A) any Capital Stock or Stock Equivalents of any Subsidiary to the extent such
Capital Stock or Stock Equivalents are subject to a Lien permitted by clause (vii) of the definition of Permitted Lien
or (B) any Capital Stock or Stock Equivalents of any Subsidiary that is not a Wholly-Owned Subsidiary of the Borrower and its Subsidiaries
at the time such Subsidiary becomes a Subsidiary, any Capital Stock or Stock Equivalents of each such Subsidiary described in clause (A) or
(B) to the extent (I) that a pledge thereof to secure the Obligations is prohibited by any applicable Contractual Requirement
(other than customary non-assignment provisions which are ineffective under the Uniform Commercial Code or other applicable law and other
than proceeds thereof the assignment of which is expressly deemed effective under the Uniform Commercial Code or other applicable law
notwithstanding such prohibition or restriction), (II) any Contractual Requirement prohibits such a pledge without the consent of
any other party; provided that this clause (II) shall not apply if (x) such other party is Holdings or a
Credit Party or Wholly-Owned Subsidiary or (y) consent has been obtained to consummate such pledge (it being understood that the
foregoing shall not be deemed to obligate the Borrower or any Subsidiary to obtain any such consent) and for so long as such Contractual
Requirement or replacement or renewal thereof is in effect, or (III) a pledge thereof to secure the Obligations would give any other
party (other than Holdings or a Credit Party or Wholly-Owned Subsidiary) to any contract, agreement, instrument, or indenture governing
such Capital Stock or Stock Equivalents the right to terminate its obligations thereunder (other than customary non-assignment provisions
which are ineffective under the Uniform Commercial Code or other applicable law and other than proceeds thereof the assignment of which
is expressly deemed effective under the Uniform Commercial Code or other applicable law notwithstanding such prohibition or restriction),
(vi) any Capital Stock or Stock Equivalents of any Subsidiary to the extent that the pledge of such Capital Stock or Stock Equivalents
would result in materially adverse tax consequences to the Borrower or any Subsidiary as reasonably determined by the Borrower in consultation
with the Administrative Agent, (vii) any Capital Stock or Stock Equivalents that are margin stock, and (viii) any Capital Stock
and Stock Equivalents of any Subsidiary that is not a Material Subsidiary or is an Unrestricted Subsidiary, a captive insurance Subsidiary,
an SPV or any special purpose entity.
34
“Excluded Subsidiary”
shall mean (i) each Subsidiary, in each case, for so long as any such Subsidiary does not (on (x) a consolidated basis with
its Restricted Subsidiaries, if determined on the Closing Date by reference to the Historical Financial Statements or (y) a consolidated
basis with its Restricted Subsidiaries, if determined after the Closing Date by reference to the financial statements delivered to the
Administrative Agent pursuant to Section 9.1(a) and (b)) constitute a Material Subsidiary, (ii) each Subsidiary
that is not a Wholly-Owned Subsidiary on any date such Subsidiary would otherwise be required to become a Guarantor pursuant to the requirements
of Section 9.11 (for so long as such Subsidiary remains a non-Wholly-Owned Restricted Subsidiary), (iii) any CFC Holding
Company, (iv) any direct or indirect Subsidiary of a CFC or a CFC Holding Company, (v) any CFC, (vi) each Subsidiary that
is prohibited by any applicable Contractual Requirement or Requirements of Law (to the extent existing on the Closing Date or, if later,
the date it becomes a Restricted Subsidiary and in each case, not entered into in contemplation hereof) from guaranteeing or granting
Liens to secure the Obligations or would require third-party or governmental (including regulatory) consent, approval, license or authorization
to guarantee or grant such Liens to secure the Obligations (unless such consent, approval, license or authorization has been received),
(vii) each Subsidiary with respect to which, as reasonably determined by the Borrower, the consequence of providing a Guarantee
of the Obligations would adversely affect the ability of the Borrower and its respective Subsidiaries to satisfy applicable Requirements
of Law, (viii) each Subsidiary with respect to which, as reasonably determined by the Borrower in consultation with the Administrative
Agent, providing such a Guarantee would result in material adverse tax consequences, (ix) any other Subsidiary with respect to which,
in the reasonable judgment of the Administrative Agent and the Borrower, as agreed in writing, the cost or other consequences of providing
a Guarantee of the Obligations shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (x) each Unrestricted
Subsidiary, (xi) any Receivables Subsidiary, (xii) each other Subsidiary acquired pursuant to a Permitted Acquisition or other
Investment permitted hereunder and financed with assumed secured Indebtedness permitted hereunder, and each Restricted Subsidiary acquired
in such Permitted Acquisition or other Investment permitted hereunder that guarantees such Indebtedness, in each case to the extent that,
and for so long as, the documentation relating to such Indebtedness to which such Subsidiary is a party prohibits such Subsidiary from
guaranteeing the Obligations and such prohibition was not created in contemplation of such Permitted Acquisition or other Investment
permitted hereunder, (xiii) each Subsidiary that is a registered broker dealer and (xiv) each SPV, not-for-profit Subsidiary
and captive insurance company.
35
“Excluded Swap Obligation”
shall mean, with respect to any Credit Party, (a) any Swap Obligation if, and to the extent that, all or a portion of the Obligations
of such Credit Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (or any Obligations
thereof) is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures
Trading Commission (or the application or official interpretation of any thereof) or (b) any other Swap Obligation designated as
an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Credit Parties and Hedge
Bank applicable to such Swap Obligation. 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 Obligation or security interest
is or becomes illegal or unlawful.
“Excluded Taxes”
shall mean, with respect to the Administrative Agent, any Lender, or any other recipient of any payment to be made by or on account of
any obligation of any Credit Party hereunder or under any other Credit Document, (i) Taxes imposed on or measured by its overall
net income, net profits, or branch profits (however denominated, and including (for the avoidance of doubt) any backup withholding in
respect thereof under Section 3406 of the Code or any similar provision of state, local, or foreign law), and franchise (and similar)
Taxes imposed on it (in lieu of net income Taxes), in each case by a jurisdiction (including any political subdivision thereof) as a
result of such recipient being organized in, having its principal office in, or in the case of any Lender, having its applicable lending
office in, such jurisdiction, or as a result of any other present or former connection with such jurisdiction (other than any such connection
arising solely from such recipient having executed, delivered, become a party to, performed its obligations under, received payments
under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document,
or sold or assigned an interest in any Loan or Credit Document), (ii) any U.S. federal withholding Tax imposed on any payment by
or on account of any obligation of any Credit Party hereunder or under any Credit Document that is required to be imposed on amounts
payable to or for the account of a Lender pursuant to laws in force at the time such Lender acquires an interest in any Credit Document
(or designates a new lending office), other than in the case of a Lender that is an assignee pursuant to a request by the Borrower under
Section 13.7 (or that designates a new lending office pursuant to a request by the Borrower), except to the extent that such
Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to receive
additional amounts from the Credit Parties with respect to such withholding Tax pursuant to Section 5.4, (iii) any Taxes
attributable to a recipient’s failure to comply with Section 5.4(e), or (iv) any withholding Tax imposed under
FATCA.
“Existing Class”
shall mean any Existing Term Loan Class and any Existing Revolving Credit Class.
“Existing Letters
of Credit” shall mean each letter of credit existing on the Closing Date and identified on Schedule 1.1(d).
“Existing Revolving
Credit Class” shall have the meaning provided in Section 2.14(g)(ii).
“Existing Revolving
Credit Commitment” shall have the meaning provided in Section 2.14(g)(ii).
“Existing Revolving
Credit Loans” shall have the meaning provided in Section 2.14(g)(ii).
“Existing Term Loan
Class” shall have the meaning provided in Section 2.14(g)(i).
“Expiring Credit
Commitment” shall have the meaning provided in Section 2.1(e).
36
“Extended Repayment
Date” shall have the meaning provided in Section 2.5(c).
“Extended Revolving
Credit Commitments” shall have the meaning provided in Section 2.14(g)(ii).
“Extended Revolving
Credit Loans” shall have the meaning provided in Section 2.14(g)(ii).
“Extended Revolving
Loan Maturity Date” shall mean the date on which any tranche of Extended Revolving Credit Loans matures.
“Extended Term Loan
Repayment Amount” shall have the meaning provided in Section 2.5(c).
“Extended Term Loans”
shall have the meaning provided in Section 2.14(g)(i).
“Extending Lender”
shall have the meaning provided in Section 2.14(g)(iii).
“Extension Amendment”
shall have the meaning provided in Section 2.14(g)(iv).
“Extension Date”
shall have the meaning provided in Section 2.14(g)(v).
“Extension Election”
shall have the meaning provided in Section 2.14(g)(iii).
“Extension Request”
shall mean a Term Loan Extension Request.
“Extension Series”
shall mean all Extended Term Loans and Extended Revolving Credit Commitments that are established pursuant to the same Extension Amendment
(or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans or Extended
Revolving Credit Commitments, as applicable, provided for therein are intended to be a part of any previously established Extension Series)
and that provide for the same interest margins, extension fees and amortization schedule.
“Fair Market Value”
shall mean with respect to any asset or group of assets on any date of determination, the value of the consideration obtainable in a
sale of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length
and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, as
determined in good faith by the Borrower.
“FATCA”
shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreements entered into pursuant to Section 1471(b)(1) of the Code as of the date of this Agreement (or any amended or successor
version described above), any intergovernmental agreements (or related legislation or official administrative rules or practices)
implementing the foregoing, and any laws, fiscal or regulatory legislation, rules, guidance notes and practices adopted by a non-U.S.
jurisdiction to effect the foregoing.
“FCPA”
shall have the meaning provided in Section 8.10.
“Federal Funds Effective
Rate” shall mean, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary
institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the
next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate
as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
37
“Fees”
shall mean all amounts payable pursuant to, or referred to in, Section 4.1.
“First Lien Intercreditor
Agreement” shall mean an Intercreditor Agreement substantially in the form of Exhibit H (with such changes to such
form as may be reasonably acceptable to the Administrative Agent and the Borrower) among the Administrative Agent, the Collateral Agent,
and the representatives for purposes thereof for holders of one or more classes of First Lien Obligations (other than the Obligations).
“First Lien Obligations”
shall mean the Obligations and the Permitted Other Indebtedness Obligations that are secured by Liens on the Collateral that rank on
an equal priority basis (but without regard to the control of remedies) with Liens on the Collateral securing the Obligations.
“First Lien Secured
Leverage Test” shall mean, as of any date of determination, with respect to the last day of the most recently ended Test Period,
the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio shall be no greater than 4.50 to 1.00.
“Fixed Amounts”
shall have the meaning provided in Section 1.12(a).
“Fixed Charge Coverage
Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated EBITDA for the Test Period most recently
ended on or prior to such date of determination to (ii) the Fixed Charges for such Test Period.
“Fixed Charges”
shall mean, with respect to any Person for any period, the sum of:
(i) Consolidated
Interest Expense of such Person for such period,
(ii) all
cash dividend payments (excluding items eliminated in consolidation) on any series of preferred stock (including any Designated Preferred
Stock) or any Refunding Capital Stock of such Person made during such period, and
(iii) all
cash dividend payments (excluding items eliminated in consolidation) on any series of Disqualified Stock made during such period.
“Flood Insurance
Laws” shall mean, collectively, (i) the National Flood Insurance Reform Act of 1994 (which comprehensively revised the
National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute
thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the
Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Floor”
shall mean the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification,
amendment or renewal of this Agreement or otherwise) with respect to the Term SOFR Rate or the Daily Simple SOFR, as applicable. For
the avoidance of doubt the initial Floor for each of Term SOFR Rate or the Daily Simple SOFR shall be, (i) with respect to the Initial
Term Loans, 0.50% and (ii) with respect to the Revolving Loans, 0.00%.
“Foreign Benefit
Arrangement” shall mean any employee benefit arrangement mandated by non-U.S. law that is maintained or contributed to by any
Credit Party or any of its Subsidiaries.
38
“Foreign Plan”
shall mean each employee benefit plan (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA) that is
not subject to U.S. law and is maintained or contributed to by any Credit Party or any of its Subsidiaries.
“Foreign Plan Event”
shall mean, with respect to any Foreign Plan or Foreign Benefit Arrangement, (i) the failure to make or, if applicable, accrue in
accordance with normal accounting practices, any employer or employee contributions required by applicable law or by the terms of such
Foreign Plan or Foreign Benefit Arrangement; (ii) the failure to register or loss of good standing (if applicable) with applicable
regulatory authorities of any such Foreign Plan or Foreign Benefit Arrangement required to be registered; or (iii) the failure of
any Foreign Plan or Foreign Benefit Arrangement to comply with any provisions of applicable law and regulations or with the terms of
such Foreign Plan or Foreign Benefit Arrangement.
“Foreign Subsidiary”
shall mean each Subsidiary that is not a Domestic Subsidiary.
“Fronting Exposure”
shall mean, at any time there is a Defaulting Lender, (i) with respect to the Letter of Credit Issuer, such Defaulting Lender’s
Revolving Credit Commitment 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 (ii) with
respect to the Swingline Lender, such Defaulting Lender’s Revolving Credit Commitment Percentage of Swingline Loans other than
Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance
with the terms hereof.
“Fronting Fee”
shall have the meaning provided in Section 4.1(d).
“Fund”
shall mean any Person (other than a natural Person) that is engaged or advises funds or other investment vehicles that are engaged in
making, purchasing, holding, or investing in commercial loans and similar extensions of credit in the ordinary course.
“Funded Debt”
shall mean all Indebtedness of Holdings 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 Holdings or any Restricted
Subsidiary, to a date more than one year from the date of its creation 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 all amounts of such Funded Debt
required to be paid or prepaid within one year from the date of its creation), and, in the case of the Credit Parties, Indebtedness
in respect of the Loans.
“GAAP”
shall mean generally accepted accounting principles in the United States, as in effect from time to time; provided, however,
that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision, regardless
of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted
on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith. Furthermore, at any time after the Closing Date, Holdings may elect
to apply International Financial Reporting Standards (“IFRS”) accounting principles in lieu of GAAP and, upon any
such election, references herein to GAAP and GAAP concepts shall thereafter be construed to refer to IFRS and corresponding IFRS concepts
(except as otherwise provided in this Agreement); provided any such election, once made, shall 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 Holdings’ election to apply IFRS shall remain as previously calculated or determined in accordance
with GAAP. The Borrower shall give written notice of any such election made in accordance with this definition to the Administrative
Agent. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated
as an incurrence of Indebtedness. Notwithstanding any other provision contained herein, the amount of any Indebtedness under GAAP with
respect to Capitalized Lease Obligations shall be determined in accordance with the definition of Capitalized Lease Obligations.
39
“Governmental Authority”
shall mean any nation, sovereign, or government, any state, province, territory, or other political subdivision thereof, and any entity
or authority exercising executive, legislative, judicial, taxing, regulatory, or administrative functions of or pertaining to government,
including a central bank or stock exchange (including any supranational body exercising such powers or functions, such as the European
Union or the European Central Bank).
“Granting Lender”
shall have the meaning provided in Section 13.6(g).
“guarantee obligations”
shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any primary obligor
in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (i) to purchase
any such Indebtedness or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (a) for
the purchase or payment of any such Indebtedness 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, (iii) to purchase property, securities, or services primarily
for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness,
or (iv) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof; provided, however,
that the term guarantee obligations shall not include endorsements of instruments for deposit or collection in the ordinary course of
business or customary and reasonable indemnity obligations or product warranties in effect on the Closing Date or entered into in connection
with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness).
The amount of any guarantee obligation shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness
in respect of which such guarantee obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Guarantee”
shall mean (i) the First Lien Guarantee made by Holdings and each other Guarantor as of the Closing Date in favor of the Collateral
Agent for the benefit of the Secured Parties, substantially in the form of Exhibit B, and (ii) any other guarantee of
the Obligations made by a Restricted Subsidiary in form and substance reasonably acceptable to the Administrative Agent.
“Guarantors”
shall mean (i) each Subsidiary of Holdings that is party to the Guarantee on the Closing Date, (ii) each Subsidiary of Holdings
that becomes a party to the Guarantee after the Closing Date pursuant to Section 9.11 or otherwise, and (iii) Holdings;
provided that in no event shall any Excluded Subsidiary be required to be a Guarantor (unless such Subsidiary is no longer an
Excluded Subsidiary).
“Hazardous Materials”
shall mean (i) any petroleum or petroleum products, radioactive materials, friable asbestos, polychlorinated biphenyls, and radon
gas; (ii) any chemicals, materials, or substances defined as or included in the definition of “hazardous substances,”
“hazardous waste,” “hazardous materials,” “extremely hazardous waste,” “restricted hazardous
waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,”
or words of similar import, under any Environmental Law; and (iii) any other chemical, material, or substance, which is prohibited,
limited, or regulated due to its dangerous or deleterious properties or characteristics by, any Environmental Law.
40
“Hedge Agreements”
shall mean (i) 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 (ii) 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”
shall mean (i) (a) any Person that, at the time it enters into a Hedge Agreement with Holdings, the Borrower or any Restricted
Subsidiary, is a Lender, an Agent or an Affiliate of a Lender or an Agent and (b) with respect to any Hedge Agreement entered into
prior to the Closing Date, any Person that is a Lender or an Agent or an Affiliate of a Lender or an Agent on the Closing Date and (ii) any
other Person that is designated by the Borrower as a “Hedge Bank” by written notice to the Administrative Agent substantially
in the form of Exhibit M or such other form reasonably acceptable to the Administrative Agent and the Borrower.
“Hedging Obligations”
shall mean, with respect to any Person, the obligations of such Person under any Hedge Agreements.
“Historical Financial
Statements” shall mean the (i) audited consolidated balance sheets of Holdings and its Subsidiaries as at September 30,
2024 and September 30, 2025, and the related audited consolidated statements of income, cash flow and shareholders’ equity
of Holdings and its Subsidiaries for the years ended September 30, 2024 and September 30, 2025 and (ii) the unaudited
consolidated balance sheet, and statement of income, cash flow and shareholders’ equity, of Holdings and its Subsidiaries as of
and for the fiscal quarter ended March 31, 2026.
“HMT”
shall have the meaning provided in the definition of the term Sanctions.
“Holdings”
shall mean (i) Holdings (as defined in the preamble to this Agreement) or (ii) after the Closing Date any other Person or Persons
(“New Holdings”) that is a Subsidiary of (or are Subsidiaries of) Holdings or of any Parent Entity of Holdings (or
the previous New Holdings, as the case may be) but not the Borrower (“Previous Holdings”); provided that (a) such
New Holdings owns 100% of the Equity Interests of the Borrower directly or indirectly, (b) New Holdings shall expressly assume all
the obligations of Previous Holdings under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in
form and substance reasonably satisfactory to the Administrative Agent and the Borrower, (c) if reasonably requested by the Administrative
Agent, an opinion of counsel shall be delivered by the Borrower to the Administrative Agent to the effect that, without limitation, such
substitution does not violate this Agreement or any other Credit Document, (d) all Capital Stock of the Borrower is pledged to secure
the Obligations, and (e)(i) no Event of Default has occurred and is continuing at the time of such substitution and such substitution
does not result in any Event of Default and (ii) such substitution will not reasonably be expected to result in any adverse tax
consequences to any Lender (unless reimbursed hereunder) or to the Administrative Agent (unless reimbursed hereunder); provided,
further, that if each of the foregoing is satisfied, Previous Holdings shall be automatically released of all its obligations
under the Credit Documents and any reference to Holdings in the Credit Documents shall be deemed to refer to New Holdings.
41
“IFRS”
shall have the meaning given such term in the definition of GAAP.
“Immediate Family
Members” shall mean with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant,
parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law
and daughter-in-law (including adoptive relationships) 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.
“Increased Amount
Date” shall have the meaning provided in Section 2.14(a).
“Incremental Loans”
shall have the meaning provided in Section 2.14(c).
“Incremental Revolving
Credit Commitments” shall have the meaning provided in Section 2.14(a).
“Incremental Revolving
Credit Loans” shall have the meaning provided in Section 2.14(b).
“Incremental Revolving
Credit Maturity Date” shall mean the date on which any tranche of Revolving Credit Loans made pursuant to the Lenders’
Incremental Revolving Credit Commitments matures.
“Incremental Revolving
Loan Lenders” shall have the meaning provided in Section 2.14(b).
“incur”
and “incurrence” shall have the meanings provided in Section 10.1.
“Incurrence Based
Amounts” shall have the meaning provided in Section 1.12(a).
“Indebtedness”
shall mean, with respect to any Person, (i) any indebtedness (including principal and premium) of such Person, whether or not contingent
(a) in respect of borrowed money, (b) evidenced by bonds, notes, debentures, or similar instruments or letters of credit or
bankers’ acceptances (or, without double counting, reimbursement agreements in respect thereof), (c) representing the balance
deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations), or (d) representing any Hedging
Obligations, if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would
appear as a net liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP; provided
that Indebtedness of any direct or indirect parent company appearing upon the balance sheet of Holdings solely by reason of push down
accounting under GAAP shall be excluded, (ii) to the extent not otherwise included, any obligation by such Person to be liable for,
or to pay, as obligor, guarantor or otherwise, on the obligations of the type referred to in clause (i) of another Person
(whether or not such items would appear upon the balance sheet of such obligor or guarantor), other than by endorsement of negotiable
instruments for collection in the ordinary course of business, and (iii) to the extent not otherwise included, the obligations of
the type referred to in clause (i) of another Person secured by a Lien on any asset owned by such Person, whether or not
such Indebtedness is assumed by such Person; provided that notwithstanding the foregoing, Indebtedness shall be deemed not
to include (1) Contingent Obligations incurred in the ordinary course of business, (2) obligations under or in respect of Receivables
Facilities, (3) prepaid or deferred revenue arising in the ordinary course of business, (4) purchase price holdbacks arising
in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warrants or other unperformed
obligations of the seller of such asset, (5) any balance that constitutes a trade payable or similar obligation to a trade creditor,
accrued in the ordinary course of business, (6) any earn-out obligation until such obligation, within 60 days of becoming due and
payable, has not been paid and such obligation is reflected as a liability on the balance sheet of such Person in accordance with GAAP,
(7) any obligations attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual,
contingent or potential) with respect thereto, (8) accrued expenses and royalties or (9) asset retirement obligations and obligations
in respect of workers’ compensation (including pensions and retiree medical care) that are not overdue by more than 60 days. The
amount of Indebtedness of any Person for purposes of clause (iii) above shall (unless such Indebtedness has been assumed
by such Person) be deemed to be equal to the lesser of (x) the aggregate unpaid amount of such Indebtedness and (y) the Fair
Market Value of the property encumbered thereby as determined by such Person in good faith.
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For all purposes hereof,
the Indebtedness of Holdings, the Borrower and the other Restricted Subsidiaries, shall exclude all intercompany Indebtedness having
a term not exceeding 365 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business consistent
with past practice.
“Indemnified Liabilities”
shall have the meaning provided in Section 13.5.
“Indemnified Person”
shall have the meaning provided in Section 13.5.
“Indemnified Taxes”
shall mean all Taxes imposed on or with respect to any payment by or on account of any obligation of any Credit Party hereunder or under
any other Credit Document, other than Excluded Taxes or Other Taxes.
“Initial Investors”
shall mean Kohlberg Kravis Roberts & Co. L.P., KKR North America Fund XI L.P., KKR North America Fund XI ESC L.P., and KKR North
America Fund XI SBS L.P., and each of their respective Affiliates.
“Initial Revolving
Credit Commitments” shall have the meaning provided in the definition of the term Revolving Credit Commitment.
“Initial Term Loan”
shall mean each Term Loan outstanding immediately after giving effect to the Eleventh Amendment Effective Date. The aggregate amount
of the Initial Term Loans as of the Eleventh Amendment Effective Date is $738,000,000.
“Initial Term Loan
Commitment” shall mean, in the case of each Lender that is a Lender on the Eleventh Amendment Effective Date, the commitment,
if any, of such Lender to fund Initial Term Loans in accordance with the Eleventh Amendment and Section 2.1(a). The aggregate
amount of the Initial Term Loan Commitments as of the Eleventh Amendment Effective Date is $738,000,000.
“Initial Term Loan
Lender” shall mean a Lender with outstanding Initial Term Loan.
“Initial Term Loan
Maturity Date” shall mean June 17, 2033, or, if such date is not a Business Day, the immediately preceding Business Day.
43
“Initial Term Loan
Repayment Amount” shall have the meaning provided in Section 2.5(b).
“Initial Term Loan
Repayment Date” shall have the meaning provided in Section 2.5(b).
“Insolvent”
shall mean, with respect to any Multiemployer Plan, the condition that such Multiemployer Plan is insolvent within the meaning of Section 4245
of ERISA.
“Intellectual Property”
shall mean U.S. intellectual property, including all (i) (a) patents, inventions, designs, processes, developments, technology,
and know-how; (b) copyrights and works of authorship in any media, including graphics, advertising materials, labels, package designs,
and photographs; (c) trademarks, service marks, trade names, brand names, corporate names, Internet domain names, logos, trade
dress, and other source indicators, and the goodwill of any business symbolized thereby; and (d) trade secrets, confidential or
proprietary information and (ii) registrations, issuances, applications, renewals, extensions, substitutions, continuations, continuations-in-part,
divisionals, re-issues, re-examinations, or similar legal protections related to the foregoing.
“Interest Payment
Date” shall mean (a) with respect to any ABR Loan (other than a Swingline Loan), the last day of each March, June,
September and December and the Maturity Date, (b) with respect to any Term Benchmark Loan, the last day of each Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case of a Term Benchmark Borrowing with an Interest Period
of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’
duration after the first day of such Interest Period, and the Maturity Date and (c) with respect to any Swingline Loan, the day
that such Loan is required to be repaid and the Maturity Date.
“Interest Period”
shall mean, with respect to any Loan, the interest period applicable thereto, as determined pursuant to Section 2.9.
“Investment”
shall mean, 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, trade credit, advances to customers, commission, travel,
and similar advances to officers and employees, in each case made in the ordinary course of business), purchases or other acquisitions
for consideration of Indebtedness, Equity Interests, or other securities issued by any other Person and investments that are required
by GAAP to be classified on the balance sheet (excluding the footnotes) of Holdings in the same manner as the other investments included
in this definition to the extent such transactions involve the transfer of cash or other property; provided that Investments shall
not include, in the case of Holdings, the Borrower, and the other Restricted Subsidiaries, intercompany loans (including guarantees),
advances, or Indebtedness either (i) having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and
made in the ordinary course of business or (ii) arising from cash management, tax and/or accounting operations and made in the ordinary
course of business or consistent with past practices.
For purposes of the definition
of Unrestricted Subsidiary and Section 10.5,
(i) Investments
shall include the portion (proportionate to Holdings’ equity interest in such Subsidiary) of the Fair Market Value of the net assets
of a Subsidiary of Holdings at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided that upon a redesignation
of such Subsidiary as a Restricted Subsidiary, Holdings shall be deemed to continue to have a permanent Investment in an Unrestricted
Subsidiary in an amount (if positive) equal to (a) Holdings’ Investment in such Subsidiary at the time of such redesignation
less (b) the portion (proportionate to Holdings’ equity interest in such Subsidiary) of the Fair Market Value of the
net assets of such Subsidiary at the time of such redesignation; and
44
(ii) any
property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer.
The amount of any Investment
outstanding at any time shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return
of capital, repayment, or other amount received by Holdings or a Restricted Subsidiary in respect of such Investment (provided
that, with respect to amounts received other than in the form of Cash Equivalents, such amount shall be equal to the Fair Market Value
of such consideration).
“Investment Grade
Rating” shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent)
by S&P, or an equivalent rating by any other nationally recognized rating agency.
“Investment Grade
Securities” shall mean:
(i) securities
issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than
Cash Equivalents),
(ii) debt
securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or
advances among Holdings and its Subsidiaries,
(iii) investments
in any fund that invest at least 90% in investments of the type described in clauses (i) and (ii) which fund
may also hold immaterial amounts of cash pending investment or distribution, and
(iv) corresponding
instruments in countries other than the United States customarily utilized for high-quality investments.
“ISP”
shall mean, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents”
shall mean with respect to any Letter of Credit, the Letter of Credit Request, and any other document, agreement, and instrument entered
into by the Letter of Credit Issuer and the Borrower (or any other Restricted Subsidiary or Holdings) or in favor of the Letter of Credit
Issuer and relating to such Letter of Credit.
“Joinder Agreement”
shall mean an agreement substantially in the form of Exhibit A.
“Joint Lead Arrangers
and Bookrunners” shall mean JPMorgan Chase Bank, N.A., MUFG Bank, Ltd., PNC Bank, National Association, Citizens Bank,
N.A., Mizuho Bank, Ltd., Wells Fargo Securities, LLC and KKR Capital Markets LLC.
“Junior Debt”
shall mean any Indebtedness (other than any permitted intercompany Indebtedness owing to the Borrower or any Restricted Subsidiary) in
respect of Subordinated Indebtedness in excess of $15 million.
“KKR”
shall mean each of Kohlberg Kravis Roberts & Co. L.P. and KKR North America Fund XI L.P.
45
“Latest Term Loan
Maturity Date” shall mean, at any date of determination, the latest maturity or expiration date applicable to any Term Loan
hereunder at such time, including the latest maturity or expiration date of any New Term Loan or any Extended Term Loan, in each case
as extended in accordance with this Agreement from time to time.
“L/C Borrowing”
shall mean an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when
made or refinanced as a Borrowing.
“L/C Facility Maturity
Date” shall mean the date that is three Business Days prior to the Revolving Credit Maturity Date; provided that the
L/C Facility Maturity Date may be extended beyond such date with the consent of the applicable Letter of Credit Issuer.
“L/C Obligations”
shall mean, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus
the aggregate of all Unpaid Drawings, including all L/C Borrowings. For all purposes of this Agreement, if on any date of determination
a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14
of the International Standby Practices (ISP98), such Letter of Credit shall be deemed to be “outstanding” in the amount so
remaining available to be drawn. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be
the stated amount of such Letter of Credit in effect at such time.
“L/C Participant”
shall have the meaning provided in Section 3.3(a).
“L/C Participation”
shall have the meaning provided in Section 3.3(a).
“L/C Sublimit”
shall mean $150,000,000.
“LCT Election”
shall have the meaning provided in Section 1.12(c).
“LCT Test Date”
shall have the meaning provided in Section 1.12(c).
“Lender”
shall have the meaning provided in the preamble to this Agreement.
“Lender Default”
shall mean (i) the refusal or failure of any Lender to make available its portion of any incurrence of Loans or Reimbursement Obligations,
which refusal or failure is not cured within one Business Day after the date of such refusal or failure, unless such Lender notifies
the Administrative Agent in writing that such refusal or failure is the result of such Lender's good faith determination that one or
more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically
identified in writing) has not been satisfied, (ii) the failure of any Lender to pay over to the Administrative Agent, the Swingline
Lender, the Letter of Credit Issuer, or any other Lender any other amount required to be paid by it hereunder within one Business Day
of the date when due, unless the subject of a good faith dispute, (iii) a Lender has notified the Borrower or the Administrative
Agent that it does not intend to comply with its funding obligations under this Agreement or has made a public statement to that effect
with respect to its funding obligations under this Agreement, or a Lender has publicly announced that it does not intend to comply with
its funding obligations under other loan agreements, credit agreements or similar facilities generally, (iv) a Lender has failed
to confirm in a manner reasonably satisfactory to the Administrative Agent that it will comply with its funding obligations under this
Agreement, (v) a Distressed Person has admitted in writing that it is insolvent or such Distressed Person becomes subject to a Lender-Related
Distress Event or (vi) a Lender has become the subject of a Bail-In Action; provided that no Lender Default shall occur solely
by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a
Governmental Authority 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.
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“Lender Presentation”
shall mean the Lender Presentation dated as of June 2026.
“Lender-Related
Distress Event” shall mean, with respect to any Lender or any other Person that directly or indirectly controls such Lender
(each, a “Distressed Person”), a voluntary or involuntary case with respect to such Distressed Person under any debt
relief law, or a custodian, conservator, receiver, or similar official is appointed for such Distressed Person or any substantial part
of such Distressed Person’s assets, or such Distressed Person, or any Person that directly or indirectly controls such Distressed
Person or is subject to a forced liquidation or such Distressed Person makes a general assignment for the benefit of creditors or is
otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Person to be,
insolvent or bankrupt; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by virtue of
(x) the ownership or acquisition of any equity interests in any Lender or any Person that directly or indirectly controls such Lender
by a Governmental Authority or an instrumentality thereof or (y) solely with respect to regulatory or supervisory matters, the appointment
of a custodian, conservator, receiver or similar official by a Governmental Authority or an instrumentality thereof under or based on
the law in the country where any Lender or any Person that directly or indirectly controls such Lender is subject to home jurisdiction,
if applicable law requires that such appointment not be disclosed, in each case so long as such ownership interest or appointment (as
applicable) does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from
the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate,
disavow or disaffirm any contracts or agreements made with such Lender.
“Letter of Credit”
shall mean each letter of credit issued pursuant to Section 3.1 and each Existing Letter of Credit.
“Letter of Credit
Commitment” shall mean, with respect to each Letter of Credit Issuer, the amount set forth opposite such Letter of Credit Issuer’s
name on Schedule 1.1(b), as, as the same may be adjusted from time to time pursuant to Section 3.1.
“Letter of Credit
Expiration Date” shall mean the day that is three Business Days prior to the scheduled Maturity Date then in effect for the
Revolving Credit Facility.
“Letter of Credit
Exposure” shall mean, with respect to any Lender, at any time, the sum of (i) the amount of the principal amount of any
Unpaid Drawings in respect of which such Lender has made (or is required to have made) payments to the Letter of Credit Issuer pursuant
to Section 3.4(a) at such time and (ii) such Lender’s Revolving Credit Commitment Percentage of the Letters
of Credit Outstanding at such time (excluding the portion thereof consisting of Unpaid Drawings in respect of which the Lenders have
made (or are required to have made) payments to the applicable Letter of Credit Issuer pursuant to Section 3.4(a)).
“Letter of Credit
Fee” shall have the meaning provided in Section 4.1(b).
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“Letter of Credit
Issuer” shall mean (i) JPMorgan Chase Bank, N.A., MUFG Bank, Ltd., PNC Bank, National Association, Citizens Bank,
N.A., Mizuho Bank, Ltd. and Wells Fargo Bank, N.A. and any of their applicable respective Affiliates or branches or designated fronting
entities and (ii) any replacement, additional issuer, or successor pursuant to Section 3.6. References herein and in
the other Credit Documents to the Letter of Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in respect of the applicable
Letter of Credit or to all Letter of Credit Issuers, as the context requires.
“Letter of Credit
Request” shall mean a notice executed and delivered by the Borrower pursuant to Section 3.2, and substantially
in the form of Exhibit L or another form which is acceptable to the Letter of Credit Issuer in its reasonable discretion.
“Letters of Credit
Outstanding” shall mean, at any time the sum of, without duplication, (i) the aggregate Stated Amount of all outstanding
Letters of Credit and (ii) the aggregate amount of the principal amount of all Unpaid Drawings.
“Level I Status”
shall mean, on any date, the circumstance that Level II Status does not exist.
“Level II Status”
shall mean, on any date, the circumstance that the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio is less than or
equal to 3.25 to 1.00 as of such date.
“Level I Revolving
Status” shall mean, on any date, with respect to the Revolving Loans, the circumstance that Level II Revolving Status and Level
III Revolving Status does not exist.
“Level II Revolving
Status” shall mean, on any date, with respect to the Revolving Loans, the circumstance that the Consolidated First Lien Secured
Debt to Consolidated EBITDA Ratio is less than or equal to 3.25 to 1.00 but greater than 3.00 to 1.00 as of such date.
“Level III Revolving
Status” shall mean, on any date, with respect to the Revolving Loans, the circumstance that the Consolidated First Lien Secured
Debt to Consolidated EBITDA Ratio is less than or equal to 3.00 to 1.00 as of such date.
“Lien”
shall mean with respect to any asset, any mortgage, lien, pledge, hypothecation, charge, security interest, preference, priority, or
encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including
any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give
a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction; provided that in no event shall an operating lease or a license to Intellectual Property be deemed
to constitute a Lien.
“Limited Condition
Transaction” shall mean (x) any transaction by one or more of the Borrower and its respective Restricted Subsidiaries
whose consummation is not conditioned on the availability of, or on obtaining, third party financing and (y) any redemption, repurchase,
defeasance, satisfaction and discharge or repayment of Indebtedness or other obligations requiring irrevocable notice in advance of such
redemption, repurchase, defeasance, satisfaction and discharge or repayment.
“Loan”
shall mean any Revolving Loan, Swingline Loan, Term Loan, Extended Term Loan, New Term Loan, or any other loan made by any Lender hereunder.
“Mandatory Borrowing”
shall have the meaning provided in Section 2.1(d).
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“Master Agreement”
shall have the meaning provided in the definition of the term “Hedge Agreement.”
“Material Adverse
Effect” shall mean a circumstance or condition affecting the business, assets, operations, properties, or financial condition
of Holdings and its Subsidiaries, taken as a whole, that would, individually or in the aggregate, materially adversely affect (i) the
ability of Holdings and the other Credit Parties, taken as a whole, to perform their payment obligations under this Agreement or any
of the other Credit Documents or (ii) the rights and remedies of the Administrative Agent and the Lenders under the Credit Documents.
“Material Subsidiary”
shall mean, at any date of determination, each Restricted Subsidiary (i) whose total assets at the last day of the Test Period ending
on the last day of the most recent fiscal period for which Section 9.1 Financials have been delivered were equal to or greater than
5.00% of the Consolidated Total Assets of Holdings and the Restricted Subsidiaries at such date or (ii) whose revenues during such
Test Period were equal to or greater than 5.00% of the consolidated revenues of Holdings and the Restricted Subsidiaries for such period,
in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the Closing Date, Restricted
Subsidiaries that are not Material Subsidiaries (other than Subsidiaries that are Excluded Subsidiaries by virtue of any of clauses (ii) through
(xii) of the definition of “Excluded Subsidiary”) have, in the aggregate, (a) total assets at the last day of such
Test Period equal to or greater than 7.50% of the Consolidated Total Assets of Holdings and the Restricted Subsidiaries at such date
or (b) revenues during such Test Period equal to or greater than 7.50% of the consolidated revenues of Holdings and the Restricted
Subsidiaries for such period, in each case determined in accordance with GAAP, then Holdings shall, on the date on which financial statements
for such quarter are delivered pursuant to this Agreement, designate in writing to the Administrative Agent one or more of such Restricted
Subsidiaries as Material Subsidiaries for each fiscal period until this proviso is no longer applicable.
“Maturity Carveout
Amount” shall have the meaning provided in Section 2.14(d).
“Maturity Date”
shall mean the Initial Term Loan Maturity Date, the New Term Loan Maturity Date, the Revolving Credit Maturity Date, the maturity date
of an Extended Term Loan or the maturity date of an Extended Revolving Credit Loan, as applicable.
“Maximum Incremental
Facilities Amount” shall mean, at any date of determination, (i)(a) the amount such that, after giving effect to the incurrence
of such amount Holdings would be in compliance on a Pro Forma Basis (including any adjustments required by such definition as a result
of a contemplated Permitted Acquisition, but excluding any concurrent incurrence of Indebtedness pursuant to clause (ii) below
or the Revolving Credit Facility and netting any cash proceeds of such incurrence) with the First Lien Secured Leverage Test (assuming
that all Indebtedness incurred pursuant to Section 2.14(a) or Section 10.1(x) prior to or on such date
of determination would be included in the definition of Consolidated First Lien Secured Debt, whether or not such Indebtedness would
otherwise be so included and assuming the Incremental Revolving Credit Commitments established at such time are fully drawn), or (b) solely
in the case of any Permitted Acquisition or Investment permitted under this Agreement, on a Pro Forma Basis the Consolidated First Lien
Secured Debt to Consolidated EBITDA Ratio would be equal to or less than the Consolidated First Lien Secured Debt to Consolidated EBITDA
Ratio immediately prior to giving effect to such incurrence, such Permitted Acquisition or Investment permitted under this Agreement
and all transactions in connection therewith plus (ii) the sum of (a) the greater of (x) $303,000,000 and (y) 100%
of Consolidated EBITDA for the most recently ended Test Period and (b) the aggregate amount of voluntary prepayments of Loans (including
purchases of the Loans by Holdings and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall
be deemed not to exceed the actual purchase price of such Loans below par) (and in the case of any Loans that are not Term Loans, a corresponding
commitment reduction), in each case, other than from proceeds of Refinancing Indebtedness, minus (iii) the sum of (a) the
aggregate principal amount of New Loan Commitments incurred pursuant to Section 2.14(a) in reliance on clause (ii) of
this definition prior to such date and (b) the aggregate principal amount of Permitted Other Indebtedness issued or incurred (including
any unused commitments obtained) pursuant to Section 10.1(x)(i) in reliance on clause (ii) of this definition
prior to such date.
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“MFN Protection”
shall have the meaning set forth in the proviso to Section 2.14(d)(iii).
“Minimum Borrowing
Amount” shall mean (i) with respect to a Borrowing of Term Benchmark Loans, $1,000,000 (or, if less, the entire remaining
applicable Commitments at the time of such Borrowing) and (ii) with respect to a Borrowing of ABR Loans, $1,000,000 (or, if less,
the entire remaining applicable Commitments at the time of such Borrowing).
“Minimum Collateral
Amount” shall mean, at any time, (i) with respect to Cash Collateral consisting of cash or Cash Equivalents or deposit
account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 101%
of the Fronting Exposure of the Letter of Credit Issuer with respect to Letters of Credit issued and outstanding at such time and (ii) with
respect to Cash Collateral consisting of cash or Cash Equivalents or deposit account balances provided in accordance with the provisions
of Section 3.8(a)(i), (a)(ii), or (a)(iii), an amount equal to 101% of the outstanding amount of all L/C Obligations.
“Minimum Tender
Condition” shall have the meaning provided in Section 2.15(b).
“Moody’s”
shall mean Moody’s Investors Service, Inc. or any successor by merger or consolidation to its business.
“Mortgage”
shall mean a mortgage, deed of trust, deed to secure debt, trust deed, or other security document entered into by the owner of a Mortgaged
Property for the benefit of the Collateral Agent for the Secured Parties in respect of that Mortgaged Property to secure the Obligations,
in form and substance reasonably acceptable to the Collateral Agent and the Borrower, together with such terms and provisions as may
be required by local laws.
“Mortgaged Property”
shall mean, initially, each parcel of real estate and the improvements thereto owned in fee by a Credit Party and identified on Schedule
1.1(a), and each other owned parcel of real property and improvements thereto with respect to which a Mortgage is granted pursuant
to Section 9.11 or Section 9.14.
“Multiemployer Plan”
shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which any Credit Party or ERISA Affiliate makes
or is obligated to make contributions, or during the five preceding calendar years, has made or been obligated to make contributions.
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“Net Cash Proceeds”
shall mean, with respect to any Prepayment Event and any incurrence of Permitted Other Indebtedness, (i) the gross cash proceeds
(including payments from time to time in respect of installment obligations, if applicable, but only as and when received and excluding
any interest payments) received by or on behalf of Holdings or any of the Restricted Subsidiaries in respect of such Prepayment Event
or incurrence of Permitted Other Indebtedness, as the case may be, less (ii) the sum of:
(a) the
amount, if any, of all taxes (including in connection with any repatriation of funds) paid or estimated to be payable by Holdings or
any of the Restricted Subsidiaries in connection with such Prepayment Event or incurrence of Permitted Other Indebtedness,
(b) the
amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes deducted pursuant
to clause (a) above) (1) associated with the assets that are the subject of such Prepayment Event and (2) retained
by Holdings or any of the Restricted Subsidiaries; provided that the amount of any subsequent reduction of such reserve (other
than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event
occurring on the date of such reduction,
(c) the
amount of any Indebtedness (other than the Loans and Permitted Other Indebtedness) secured by a Lien on the assets that are the subject
of such Prepayment Event to the extent that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be
repaid upon consummation of such Prepayment Event,
(d) in
the case of any Asset Sale Prepayment Event or Casualty Event or Permitted Sale Leaseback, the amount of any proceeds of such Prepayment
Event that Holdings or any Restricted Subsidiary has reinvested (or intends to reinvest within the Reinvestment Period or has entered
into a binding commitment prior to the last day of the Reinvestment Period to reinvest) in the business of Holdings or any of the Restricted
Subsidiaries; provided that any portion of such proceeds that has not been so reinvested within such Reinvestment Period (with
respect to such Prepayment Event, the “Deferred Net Cash Proceeds”) shall, unless Holdings or a Restricted Subsidiary
has entered into a binding commitment prior to the last day of such Reinvestment Period to reinvest such proceeds no later than 180 days
following the last day of such Reinvestment Period, (1) be deemed to be Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty
Event, or Permitted Sale Leaseback occurring on the last day of such Reinvestment Period or, if later, 180 days after the date Holdings
or such Restricted Subsidiary has entered into such binding commitment, as applicable (such last day or 180th day, as applicable, the
“Deferred Net Cash Proceeds Payment Date”), and (2) be applied to the repayment of Term Loans in accordance with
Section 5.2(a)(i),
(e) in
the case of any Asset Sale Prepayment Event, Casualty Event, or Permitted Sale Leaseback by a non-Wholly-Owned Restricted Subsidiary,
the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (e)) attributable to minority
interests and not available for distribution to or for the account of Holdings or a Wholly-Owned Restricted Subsidiary as a result thereof,
(f) in
the case of any Asset Sale Prepayment Event or Permitted Sale Leaseback, any funded escrow established pursuant to the documents evidencing
any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such
sale or disposition; provided that the amount of any subsequent reduction of such escrow (other than in connection with a payment
in respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event occurring on the date of such reduction
solely to the extent that Holdings and/or any Restricted Subsidiaries receives cash in an amount equal to the amount of such reduction,
and
(g) all
fees and out of pocket expenses paid by Holdings or a Restricted Subsidiary in connection with any of the foregoing (for the avoidance
of doubt, including, (1) in the case of the issuance of Permitted Other Indebtedness, any fees, underwriting discounts, premiums,
and other costs and expenses incurred in connection with such issuance and (2) attorney’s fees, investment banking fees, survey
costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, underwriting
discounts and commissions, other customary expenses, and brokerage, consultant, accountant, and other customary fees),
51
in each case, only to the extent not already
deducted in arriving at the amount referred to in clause (i) above.
“Net Income”
shall mean, 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.
“New Contracts”
shall mean binding contracts or purchase orders (i) entered with new customers or (ii) for new business with existing customers,
in each case, under which Holdings and/or its Subsidiaries have begun to provide services to customers, which are expected to increase
the Consolidated Net Income of Holdings.
“New Holdings”
shall have the meaning provided in the definition of the term Holdings.
“New Loan Commitments”
shall have the meaning provided in Section 2.14(a).
“New Revolving Credit
Commitments” shall have the meaning provided in Section 2.14(a).
“New Revolving Credit
Loan” shall have the meaning provided in Section 2.14(b).
“New Revolving Loan
Lender” shall have the meaning provided in Section 2.14(b).
“New Term Loan”
shall have the meaning provided in Section 2.14(c).
“New Term Loan Commitments”
shall have the meaning provided in Section 2.14(a).
“New Term Loan Lender”
shall have the meaning provided in Section 2.14(c).
“New Term Loan Maturity
Date” shall mean the date on which a New Term Loan matures.
“New Term Loan Repayment
Amount” shall have the meaning provided in Section 2.5(c).
“Non-Bank Tax Certificate”
shall have the meaning provided in Section 5.4(e)(ii)(B)(3).
“Non-Consenting
Lender” shall have the meaning provided in Section 13.7(b).
“Non-Credit Party
Prepayment Event” shall have the meaning provided in Section 5.2(a)(iv).
“Non-Defaulting
Lender” shall mean and include each Lender other than a Defaulting Lender.
“Non-Expiring Credit
Commitment” shall have the meaning provided in Section 2.1(e).
“Non-Extension Notice
Date” shall have the meaning provided in Section 3.2(d).
“Non-U.S. Lender”
shall mean any Lender that is not a “United States person” as defined by Section 7701(a)(30) of the Code.
“Notice of Borrowing”
shall have the meaning provided in Section 2.3(a).
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“Notice of Conversion
or Continuation” shall have the meaning provided in Section 2.6(a).
“NYFRB”
shall mean the Federal Reserve Bank of New York.
“NYFRB Rate”
shall mean, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank
Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided
that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal
funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized
standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such
rate shall be deemed to be zero for purposes of this Agreement.
“NYFRB’s Website”
shall mean the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“Obligations”
shall mean all advances to, and debts, liabilities, obligations, covenants, and duties of, any Credit Party (or in the case of any Secured
Cash Management Agreement or Secured Hedge Agreement, any Restricted Subsidiary) arising under any Credit Document or otherwise with
respect to any Revolving Credit Commitment, Loan, or Letter of Credit or under any Secured Cash Management Agreement, Secured Hedge Agreement
(other than with respect to any Credit Party’s obligations that constitute Excluded Swap Obligations solely with respect to such
Credit Party), in each case, entered into with Holdings or any of the Restricted Subsidiaries, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest
and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any bankruptcy
or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed or allowable
claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Credit Parties under the Credit Documents
(and any of their Subsidiaries to the extent they have obligations under the Credit Documents) include the obligation (including guarantee
obligations) to pay principal, interest, charges, expenses, fees, attorney costs, indemnities, and other amounts payable by any Credit
Party under any Credit Document.
“OFAC”
shall have the meaning provided in Section 8.10.
“Original Revolving
Credit Commitments” shall mean all Revolving Credit Commitments, Existing Revolving Credit Commitments, and Extended Revolving
Credit Commitments, other than any New Revolving Credit Commitments (and any Extended Revolving Credit Commitments related thereto).
“Other Taxes”
shall mean all present or future stamp, registration, court or documentary Taxes or any other excise, property, intangible, mortgage
recording, filing or similar Taxes arising from any payment made hereunder or under any other Credit Document or from the execution,
delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with
respect to, this Agreement or any other Credit Document; provided that such term shall not include (i) any Taxes that result
from an assignment, (“Assignment Taxes”) to the extent such Assignment Taxes are imposed as a result of a connection
between the Lender and the taxing jurisdiction (other than a connection arising solely from any Credit Documents or any transactions
contemplated thereunder), except to the extent that any such action described in this proviso is requested or required by the Borrower
or Holdings or (ii) Excluded Taxes.
“Overnight Bank
Funding Rate” shall mean, for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions
denominated in Dollars by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the
NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as
an overnight bank funding rate.
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“Parent Entity”
shall mean any Person that is a direct or indirect parent company (which may be organized as, among other things, a partnership) of Holdings
and/or the Borrower, as applicable.
“Participant”
shall have the meaning provided in Section 13.6(c)(i).
“Participant Register”
shall have the meaning provided in Section 13.6(c)(ii).
“Participating Member
State” shall mean any member state of the European Union that adopts or has adopted the Euro as its lawful currency in accordance
with legislation of the European Union relating to economic and monetary union.
“Patriot Act”
shall have the meaning provided in Section 13.18.
“Payment”
shall have the meaning assigned to it in Section 12.14(b).
“Payment Notice”
shall have the meaning assigned to it in Section 12.14(b).
“PBGC”
shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Pension Plan”
shall mean any “employee pension benefit plan” (as defined in Section 3(2) of ERISA, but excluding any Multiemployer
Plan) that is subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, in respect of which any Credit
Party or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4062 or Section 4069 of ERISA, be deemed
to be) an “employer” as defined in Section 3(5) of ERISA.
“Permitted Acquisition”
shall have the meaning provided in clause (iii) of the definition of Permitted Investments.
“Permitted Asset
Swap” shall mean the concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business
Assets and cash or Cash Equivalents between Holdings or a Restricted Subsidiary and another Person; provided that any cash or
Cash Equivalents received must be applied in accordance with Section 10.4.
“Permitted Debt
Exchange” shall have the meaning provided in Section 2.15(a).
“Permitted Debt
Exchange Notes” shall have the meaning provided in Section 2.15(a).
“Permitted Debt
Exchange Offer” shall have the meaning provided in Section 2.15(a).
“Permitted Holders”
shall mean each of (i) the Initial Investors and their respective Affiliates (other than any portfolio company of an Initial Investor),
Birch Equity Holdings, LP, Birch-OR Equity Holdings, LLC and One Rock Capital Partners, LLC and their respective Affiliates and members
of management of Holdings or the Borrower (or their respective direct or indirect parent company or management vehicle) and their respective
Permitted Transferees who are holders of Equity Interests of Holdings (or its direct or indirect parent company or management vehicle)
on the Ninth Amendment Effective Date and any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Securities Exchange Act or any successor provision) of which any of the foregoing are members; provided that, in the case
of such group and without giving effect to the existence of such group or any other group, such Initial Investors, their respective Affiliates
and members of management, collectively, have beneficial ownership of more than 50% of the total voting power of the Voting Stock of
Holdings or any other direct or indirect Parent Entity, (ii) any direct or indirect Parent Entity formed not in connection with,
or in contemplation of, a transaction (other than Transactions) that, assuming such parent was not formed, after giving effect thereto
would constitute a Change of Control and (iii) any entity (other than a Parent Entity) through which a Parent Entity described in
clause (ii) directly or indirectly holds Equity Interests of the Borrower and has no other material operations other than those
incidental thereto.
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“Permitted Investments”
shall mean:
(i) any
Investment in Holdings or any Restricted Subsidiary;
(ii) any
Investment in cash, Cash Equivalents, or Investment Grade Securities at the time such Investment is made;
(iii) (a) any
transactions or Investments otherwise made in connection with the Transactions and (b) any Investment by Holdings or any Restricted
Subsidiary in a Person that is engaged in a Similar Business if as a result of such Investment (a “Permitted Acquisition”),
(1) such Person becomes a Restricted Subsidiary or (2) such Person, in one transaction or a series of related transactions,
is merged, consolidated, or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into,
Holdings or a Restricted Subsidiary, and, in each case, any Investment held by such Person; provided that such Investment was
not acquired by such Person in contemplation of such acquisition, merger, consolidation, or transfer;
(iv) any
Investment in securities or other assets not constituting cash, Cash Equivalents, or Investment Grade Securities and received in connection
with an Asset Sale made pursuant to Section 10.4 or any other disposition of assets not constituting an Asset Sale;
(v) (a) any
Investment existing or contemplated on the Closing Date and, in each case, listed on Schedule 10.5 and (b) Investments consisting
of any modification, replacement, renewal, reinvestment, or extension of any such Investment; provided that the amount of any
such Investment is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment
(including in respect of any unused commitment), plus any accrued but unpaid interest (including any portion thereof which is
payable in kind in accordance with the terms of such modified, extended, renewed, or replaced Investment) and premium payable by the
terms of such Indebtedness thereon and fees and expenses associated therewith as of the Closing Date;
(vi) any
Investment acquired by Holdings or any Restricted Subsidiary (a) in exchange for any other Investment or accounts receivable held
by Holdings or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization, or recapitalization
of Holdings of such other Investment or accounts receivable or (b) as a result of a foreclosure by Holdings or any Restricted Subsidiary
with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(vii) Hedging
Obligations permitted under clause (j) of Section 10.1 and Cash Management Services;
(viii) any
Investment in a Similar Business having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this
clause (viii) that are at that time outstanding, not to exceed the greater of (a) $120,000,000 and (b) 40% of Consolidated
EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment (with the Fair Market
Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided,
however, that if any Investment pursuant to this clause (viii) is made in any Person that is not a Restricted Subsidiary
at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such investment shall thereafter
be deemed to have been made pursuant to clause (i) above and shall cease to have been made pursuant to this clause (viii) for
so long as such Person continues to be a Restricted Subsidiary;
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(ix) Investments
the payment for which consists of Equity Interests of Holdings or any direct or indirect parent company of Holdings (exclusive of Disqualified
Stock); provided that such Equity Interests will not increase the amount available for Restricted Payments under Section 10.5(a)(iii);
(x) guarantees
of Indebtedness permitted under Section 10.1;
(xi) any
transaction to the extent it constitutes an Investment that is permitted and made in accordance with the provisions of Section 9.9
(except transactions described in clauses (b) of such paragraph);
(xii) Investments
consisting of purchases and acquisitions of inventory, supplies, material, equipment, or other similar assets in the ordinary course
of business;
(xiii) additional
Investments having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (xiii) that
are at that time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale
do not consist of cash or marketable securities), not to exceed the greater of (a) $105,000,000 and (b) 35% of Consolidated
EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment (with the Fair Market
Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided,
however, that if any Investment pursuant to this clause (xiii) is made in any Person that is not a Restricted Subsidiary
at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such investment shall thereafter
be deemed to have been made pursuant to clause (i) above and shall cease to have been made pursuant to this clause (xiii) for
so long as such Person continues to be a Restricted Subsidiary;
(xiv) Investments
relating to any Receivables Subsidiary that, in the good faith determination of the board of directors of Holdings, are necessary or
advisable to effect a Receivables Facility or any repurchases or other transactions in connection therewith;
(xv) advances
to, or guarantees of Indebtedness of, employees not in excess of the greater of (a) $15,000,000 and (b) 5.00% of Consolidated
EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment;
(xvi) (a) loans
and advances to officers, directors, managers, and employees for business-related travel expenses, moving expenses, and other similar
expenses, in each case incurred in the ordinary course of business or consistent with past practices or to fund such Person’s purchase
of Equity Interests of Holdings or any direct or indirect parent company thereof, (b) promissory notes received from equity holders
of Holdings, any direct or indirect parent company of Holdings or any Subsidiary in connection with the exercise of stock options
in respect of the Equity Interests of Holdings, any direct or indirect parent company of Holdings and the Subsidiaries and (c) advances
of payroll payments to employees in the ordinary course of business;
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(xvii) Investments
consisting of extensions of trade credit in the ordinary course of business;
(xviii) Investments
in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform
Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(xix) non-cash
Investments in connection with tax planning and reorganization activities; provided that after giving effect to any such activities,
the security interests of the Lenders in the Collateral, taken as a whole, would not be materially impaired;
(xx) the
licensing and contribution of Intellectual Property pursuant to joint development, venture or marketing arrangements with other
Persons, in the ordinary course of business;
(xxi) Investments
made in the ordinary course of business in connection with obtaining, maintaining or renewing client, franchisee and customer contracts
and loans or advances made to, and guarantees with respect to obligations of, franchisees, distributors, suppliers, licensors and licensees
in the ordinary course of business;
(xxii) contributions
to a “rabbi” trust for the benefit of employees, directors, consultants, independent contractors or other service providers
or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Borrower;
(xxiii) Investments
by an Unrestricted Subsidiary entered into prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary pursuant
to the definition of “Unrestricted Subsidiary”; and
(xxiv) Investments
of a Subsidiary acquired after the Closing Date or of a Person merged or consolidated with any Subsidiary in accordance with this definition
of “Permitted Investments”, Section 10.3 and/or Section 10.5 after the Closing Date to the extent
that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence
on the date of such acquisition, merger or consolidation.
“Permitted Liens”
shall mean, with respect to any Person:
(i) pledges
or deposits by such Person under workmen’s compensation laws, unemployment insurance laws, or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness), or leases to which such Person is
a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure
surety or appeal bonds to which such Person is a party, or deposits as security for the payment of rent or deposits made to secure obligations
arising from contractual or warranty refunds, in each case, incurred in the ordinary course of business;
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(ii) Liens
imposed by law, such as carriers’, warehousemen’s, materialmen’s, repairmen’s, and mechanics’ Liens, in
each case, for sums not yet overdue for a period of more than 60 days or, if more than 60 days overdue, are unfiled and no other action
has been taken to enforce such Lien or that are being contested in good faith by appropriate proceedings or other Liens arising out of
judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings
for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;
(iii) Liens
for taxes, assessments, or other governmental charges not yet overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books
of such Person in accordance with GAAP or are not required to be paid pursuant to Section 8.11, or for property taxes on
property Holdings or one of its Subsidiaries has determined to abandon if the sole recourse for such tax, assessment, charge, levy, or
claim is to such property;
(iv) Liens
in favor of issuers of performance, surety, bid, indemnity, warranty, release, appeal, or similar bonds or with respect to other regulatory
requirements or letters of credit or bankers’ acceptances issued, and completion guarantees provided for, in each case pursuant
to the request of and for the account of such Person in the ordinary course of its business;
(v) minor
survey exceptions, minor encumbrances, ground leases, leases, easements, or reservations of, or rights of others for, licenses, rights-of-way,
servitudes, sewers, electric lines, drains, telegraph and telephone and cable television lines, gas and oil pipelines, and other similar
purposes, or zoning, building codes, or other restrictions (including, without limitation, minor defects or irregularities in title and
similar encumbrances) as to the use of real properties or Liens incidental, to the conduct of the business of such Person or to the ownership
of its properties which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect
the value of said properties or materially impair their use in the operation of the business of such Person;
(vi) Liens
securing Indebtedness permitted to be incurred pursuant to clause (a), (b) (so long as such Liens are subject to the
Second Lien Intercreditor Agreement), (d), (l)(ii), (r), (w), (x) or (y) of Section 10.1;
provided that, (a) in the case of clause (d) of Section 10.1, such Lien may not extend to any property
or equipment (or assets affixed or appurtenant thereto) other than the property or equipment being financed or refinanced under such
clause (d) of Section 10.1, replacements of such property, equipment or assets, and additions and accessions
and in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender; (b) in the
case of clause (r) of Section 10.1, such Lien may not extend to any assets other than the assets owned by the
Restricted Subsidiaries incurring such Indebtedness; (c) in the case of Liens securing Permitted Other Indebtedness Obligations
that constitute First Lien Obligations pursuant to this clause (vi), the applicable Permitted Other Indebtedness Secured Parties
(or a representative thereof on behalf of such holders) shall enter into security documents with terms and conditions not materially
more restrictive to the Credit Parties, taken as a whole, than the terms and conditions of the Security Documents and (1) in the
case of the first such issuance of Permitted Other Indebtedness constituting First Lien Obligations, the Collateral Agent, the Administrative
Agent and the representative for the holders of such Permitted Other Indebtedness Obligations shall have entered into the First Lien
Intercreditor Agreement and (2) in the case of subsequent issuances of Permitted Other Indebtedness constituting First Lien Obligations,
the representative for the holders of such Permitted Other Indebtedness Obligations shall have become a party to the First Lien Intercreditor
Agreement in accordance with the terms thereof; and (d) in the case of Liens securing Permitted Other Indebtedness Obligations that
do not constitute First Lien Obligations pursuant to this clause (vi), the applicable Permitted Other Indebtedness Secured Parties
(or a representative thereof on behalf of such holders) shall enter into security documents with terms and conditions not materially
more restrictive to the Credit Parties, taken as a whole, than the terms and conditions of the Security Documents and shall (x) in
the case of the first such issuance of Permitted Other Indebtedness that do not constitute First Lien Obligations, the Collateral Agent,
the Administrative Agent and the representative of the holders of such Permitted Other Indebtedness Obligations shall have entered into
the Second Lien Intercreditor Agreement and (y) in the case of subsequent issuances of Permitted Other Indebtedness that do not
constitute First Lien Obligations, the representative for the holders of such Permitted Other Indebtedness shall have become a party
to the Second Lien Intercreditor Agreement in accordance with the terms thereof; without any further consent of the Lenders, the Administrative
Agent and the Collateral Agent shall be authorized to execute and deliver on behalf of the Secured Parties the First Lien Intercreditor
Agreement and the Second Lien Intercreditor Agreement contemplated by this clause (vi);
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(vii) subject
to Section 9.14, other than with respect to Mortgaged Property, Liens existing on the Closing Date; provided that
any Lien securing Indebtedness or other obligations in excess of (a) $5,000,000 individually or (b) $10,000,000 in the aggregate
(when taken together with all other Liens securing obligations outstanding in reliance on this clause (b) that are not listed
on Schedule 10.2) shall only be permitted if set forth on Schedule 10.2, and, in each case, any modifications, replacements,
renewals, or extensions thereof;
(viii) Liens
on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided such Liens are not created or
incurred in connection with, or in contemplation of, such other Person becoming a Subsidiary; provided, further, however,
that such Liens may not extend to any other property owned by Holdings or any Restricted Subsidiary (other than, with respect to such
Person, any replacements of such property or assets and additions and accessions thereto, after-acquired property subject to a Lien securing
Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that
require, pursuant to their terms at such time, a pledge of after-acquired property of such Person, and the proceeds and the products
thereof and customary security deposits in respect thereof and in the case of multiple financings of equipment provided by any lender,
other equipment financed by such lender, 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);
(ix) Liens
on property at the time Holdings or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger or
consolidation with or into Holdings or any Restricted Subsidiary or the designation of an Unrestricted Subsidiary as a Restricted Subsidiary;
provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, merger, consolidation,
or designation; provided, further, however, that such Liens may not extend to any other property owned by Holdings
or any Restricted Subsidiary (other than, with respect to such property, any replacements of such property or assets and additions and
accessions thereto, after-acquired property subject to a Lien securing Indebtedness and other obligations incurred prior to such time
and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of
after-acquired property, and the proceeds and the products thereof and customary security deposits in respect thereof and in the case
of multiple financings of equipment provided by any lender, other equipment financed by such lender, 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);
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(x) Liens
on property of any Restricted Subsidiary that is not a Credit Party, which Liens secure Indebtedness of such Restricted Subsidiary or
another Restricted Subsidiary that is not a Credit Party, in each case to the extent permitted to be incurred in accordance with Section 10.1;
(xi) Liens
securing Hedging Obligations and Cash Management Services so long as the related Indebtedness is, and is permitted hereunder to be, secured
by a Lien on the same property securing such Hedging Obligations and Cash Management Services;
(xii) Liens
on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’
acceptances issued or created for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other
goods;
(xiii) leases,
subleases, licenses, or sublicenses (including of Intellectual Property) granted to others in the ordinary course of business;
(xiv) Liens
arising from Uniform Commercial Code financing statement filings regarding operating leases or consignments entered into by Holdings
or any Restricted Subsidiary in the ordinary course of business;
(xv) Liens
in favor of Holdings, the Borrower, or any other Guarantor;
(xvi) Liens
on equipment of Holdings or any Restricted Subsidiary granted in the ordinary course of business to Holdings’ or such Restricted
Subsidiary’s client at which such equipment is located;
(xvii) Liens
on accounts receivable and related assets incurred in connection with a Receivables Facility;
(xviii) Liens
to secure any refinancing, refunding, extension, renewal, or replacement (or successive refinancing, refunding, extensions, renewals,
or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses (vi), (vii), (viii),
(ix), (x), and (xv) of this definition of Permitted Liens; provided that (a) such new Lien shall
be limited to all or part of the same property that secured the original Lien (plus improvements on such property), and (b) the
Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (1) the outstanding principal
amount or, if greater, committed amount of the Indebtedness described under clauses (vi), (vii), (viii), (ix),
(x), and (xv) at the time the original Lien became a Permitted Lien under this Agreement, and (2) an amount necessary
to pay any fees and expenses, including premiums and accrued and unpaid interest, related to such refinancing, refunding, extension,
renewal, or replacement;
(xix) deposits
made or other security provided to secure liabilities to insurance carriers under insurance or self-insurance arrangements in the ordinary
course of business;
(xx) other
Liens securing obligations which do not exceed the greater of (a) $120,000,000 and (b) 40% of Consolidated EBITDA for the most
recently ended Test Period (calculated on a Pro Forma Basis) at the time of the incurrence of such Lien;
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(xxi) Liens
securing judgments for the payment of money not constituting an Event of Default under Section 11.5 or Section 11.10;
(xxii) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation
of goods in the ordinary course of business;
(xxiii) Liens
(a) of a collection bank arising under Section 4-210 of the Uniform Commercial Code or any comparable or successor provision
on items in the course of collection, (b) attaching to commodity trading accounts or other commodity brokerage accounts incurred
in the ordinary course of business, and (c) in favor of banking or other financial institutions or other electronic payment service
providers arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters
customary in the banking or finance industry;
(xxiv) Liens
deemed to exist in connection with Investments in repurchase agreements permitted under Section 10.1; provided that
such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
(xxv) Liens
encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other
brokerage accounts incurred in the ordinary course of business and not for speculative purposes;
(xxvi) Liens
that are contractual rights of set-off (a) relating to the establishment of depository relations with banks not given in connection
with the issuance of Indebtedness, (b) relating to pooled deposit or sweep accounts of Holdings or any of the Restricted Subsidiaries
to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Holdings and the Restricted
Subsidiaries, or (c) relating to purchase orders and other agreements entered into by Holdings or any of the Restricted Subsidiaries
in the ordinary course of business;
(xxvii) Liens
(a) solely on any cash earnest money deposits made by Holdings or any of the Restricted Subsidiaries in connection with any letter
of intent or purchase agreement permitted under this Agreement or (b) consisting of an agreement to dispose of any property pursuant
to a disposition permitted hereunder;
(xxviii) rights
reserved or vested in any Person by the terms of any lease, license, franchise, grant, or permit held by Holdings or any of the Restricted
Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant, or permit, or to require annual or
periodic payments as a condition to the continuance thereof;
(xxix) restrictive
covenants affecting the use to which real property may be put; provided that the covenants are complied with;
(xxx) 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;
(xxxi) zoning
by-laws and other land use restrictions, including, without limitation, site plan agreements, development agreements, and contract zoning
agreements;
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(xxxii) Liens
arising out of conditional sale, title retention, consignment, or similar arrangements for sale of goods entered into by Holdings or
any Restricted Subsidiary in the ordinary course of business;
(xxxiii) Liens
arising under the Security Documents;
(xxxiv) Liens
on goods purchased in the ordinary course of business the purchase price of which is financed by a documentary letter of credit issued
for the account of Holdings, the Borrower or any of their Subsidiaries;
(xxxv) (a) Liens
on Equity Interests in joint ventures; provided that any such Lien is in favor of a creditor of such joint venture and such creditor
is not an Affiliate of any partner to such joint venture and (b) purchase options, call, and similar rights of, and restrictions
for the benefit of, a third party with respect to Equity Interests held by Holdings or any Restricted Subsidiary in joint ventures;
(xxxvi) Liens
on cash and Cash Equivalents that are earmarked to be used to satisfy or discharge Indebtedness; provided (a) such cash and/or
Cash Equivalents are deposited into an account from which payment is to be made, directly or indirectly, to the Person or Persons holding
the Indebtedness that is to be satisfied or discharged, (b) such Liens extend solely to the account in which such cash and/or Cash
Equivalents are deposited and are solely in favor of the Person or Persons holding the Indebtedness (or any agent or trustee for such
Person or Persons) that is to be satisfied or discharged, and (c) the satisfaction or discharge of such Indebtedness is expressly
permitted hereunder;
(xxxvii) with
respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by any Requirement of Law;
(xxxviii) to
the extent pursuant to a Requirements of Law, Liens on cash or Permitted Investments securing Swap Obligations in the ordinary course
of business; and
(xxxvix) with
respect to any Mortgaged Property, the matters listed as exceptions to title on Schedule B (or other applicable schedule) of the final
Title Policy covering such Mortgaged Property delivered to the Collateral Agent.
For purposes of this definition, the term Indebtedness
shall be deemed to include interest on, and fees, expenses and other obligations payable with respect to, such Indebtedness.
“Permitted Other
Indebtedness” shall mean subordinated or senior Indebtedness (which Indebtedness may (i) be unsecured, (ii) have
the same lien priority as the First Lien Obligations (without regard to control of remedies), provided that if such Permitted
Other Indebtedness is in the form of secured first lien term loans, then such Permitted Other Indebtedness shall be subject to any applicable
MFN Protection as if such loans were New Term Loans, or (iii) be secured by a Lien ranking junior to the Lien securing the First
Lien Obligations), in each case issued or incurred by the Borrower or other Guarantor, (a) except with respect to the Maturity Carveout
Amount, the terms of which do not provide for any scheduled repayment, mandatory repayment, or redemption or sinking fund obligations
prior to, at the time of incurrence, the Latest Term Loan Maturity Date (other than, in each case, customary offers or obligations to
repurchase or repay upon a change of control, excess cash flow sweep, asset sale, or casualty or condemnation event, applicable high
yield discount obligation (“AHYDO”) payments and customary acceleration rights after an event of default), (b) the
covenants, taken as a whole, are not materially more restrictive to the Borrower and the other Restricted Subsidiaries than those herein
(taken as a whole) (except for covenants applicable only to periods after the Latest Term Loan Maturity Date at the time of such refinancing)
(it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness,
no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for
the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent
shall be required by the Administrative Agent or any of the Lenders if any covenants are only applicable after the Latest Term Loan Maturity
Date at the time of such refinancing); provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative
Agent at least five Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of
such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts
of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy
the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative
Agent notifies the Borrower within two Business Days after receipt of such certificate that it disagrees with such determination (including
a reasonable description of the basis upon which it disagrees), (c) of which no Subsidiary of Holdings (other than the Borrower
or a Guarantor) is an obligor, (d) that, if secured, is not secured by a lien on any assets other than the Collateral and (e) the
other terms of which shall be on terms and documentation as determined by the Borrower and the lenders providing such Indebtedness.
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“Permitted Other
Indebtedness Documents” shall mean any document or instrument (including any guarantee, security agreement, or mortgage and
which may include any or all of the Credit Documents) issued or executed and delivered with respect to any Permitted Other Indebtedness
by any Credit Party.
“Permitted Other
Indebtedness Obligations” shall mean, if any Permitted Other Indebtedness is issued or incurred, all advances to, and debts,
liabilities, obligations, covenants, and duties of, any Credit Party arising under any Permitted Other Indebtedness Document, whether
direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter
arising, and including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of
any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Permitted Other Indebtedness
Obligations of the applicable Credit Parties under the Permitted Other Indebtedness Documents (and any of their Restricted Subsidiaries
to the extent they have obligations under the Permitted Other Indebtedness Documents) include the obligation (including guarantee obligations)
to pay principal, interest, charges, expenses, fees, attorney costs, indemnities, and other amounts payable by any such Credit Party
under any Permitted Other Indebtedness Document.
“Permitted Other
Indebtedness Secured Parties” shall mean the holders from time to time of secured Permitted Other Indebtedness Obligations
(and any representative on their behalf).
“Permitted Other
Provision” shall have the meaning provided in Section 2.14(g)(i).
“Permitted Repricing
Amendment” shall have the meaning provided in Section 13.1.
“Permitted Sale
Leaseback” shall mean any Sale Leaseback consummated by Holdings or any of the Restricted Subsidiaries after the Closing Date;
provided that any such Sale Leaseback not between Holdings and a Restricted Subsidiary is consummated for fair value as determined
at the time of consummation in good faith by (i) Holdings or such Restricted Subsidiary or (ii) in the case of any Sale Leaseback
(or series of related Sales Leasebacks) the aggregate proceeds of which exceed the greater of (a) $90,000,000 and (b) 30% of
Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of the incurrence of such Sale
Leaseback, the board of directors (or analogous governing body) of Holdings or such Restricted Subsidiary (which such determination may
take into account any retained interest or other Investment of Holdings or such Restricted Subsidiary in connection with, and any other
material economic terms of, such Sale Leaseback).
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“Permitted Transferees”
shall mean, with respect to any Person that is a natural person (and any Permitted Transferee of such Person), (a) such Person’s
Immediate Family Members, including his or her spouse, ex-spouse, children, step-children and their respective lineal descendants and
(b) without duplication with any of the foregoing, such Person’s heirs, executors and/or administrators upon the death of
such Person and any other Person who was an Affiliate of such Person upon the death of such Person and who, upon such death, directly
or indirectly owned Equity Interests in the Borrower or any other Parent Entity.
“Person”
shall mean any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust, or other enterprise
or any Governmental Authority.
“Plan”
shall mean, other than any Multiemployer Plan, any employee benefit plan (as defined in Section 3(3) of ERISA), including any
employee welfare benefit plan (as defined in Section 3(1) of ERISA), any employee pension benefit plan (as defined in Section 3(2) of
ERISA), and any plan which is both an employee welfare benefit plan and an employee pension benefit plan, and in respect of which any
Credit Party or, with respect to any such plan that is subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of
the Code, any ERISA Affiliate is (or, if such Plan were terminated, would under Section 4062 or Section 4069 of ERISA be reasonably
likely to be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Planned Expenditures”
shall have the meaning provided in the definition of the term Excess Cash Flow.
“Platform”
shall have the meaning provided in Section 13.17(a).
“Pledge Agreement”
shall mean the First Lien Pledge Agreement, entered into as of the Closing Date by the Credit Parties party thereto and the Collateral
Agent for the benefit of the Secured Parties, substantially in the form of Exhibit C.
“Post-Acquisition
Period” shall mean, with respect to any Permitted Acquisition, the period beginning on the date such Permitted Acquisition
is consummated and ending on the last day of the eighth full consecutive fiscal quarter immediately following the date on which such
Permitted Acquisition is consummated.
“Prepayment Event”
shall mean any Asset Sale Prepayment Event, Debt Incurrence Prepayment Event, Casualty Event, or any Permitted Sale Leaseback.
“Prepayment Trigger”
shall have the meaning provided in the definition of the term Asset Sale Prepayment Event.
“primary obligation”
shall have the meaning provided such term in the definition of Contingent Obligations.
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“primary obligor”
shall have the meaning provided such term in the definition of Contingent Obligations.
“Prime Rate”
shall mean the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street
Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical
Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein,
any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined
by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced
or quoted as being effective.
“Pro Forma Adjustment”
shall mean, for any Test Period that includes all or any part of a fiscal quarter included in any Post-Acquisition Period, with respect
to the Acquired EBITDA of the applicable Acquired Entity or Business or Converted Restricted Subsidiary or the Consolidated EBITDA of
Holdings, the pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected by Holdings
in good faith as a result of (i) actions taken during such Post-Acquisition Period for the purposes of realizing reasonably identifiable
and factually supportable cost savings or (ii) any additional costs incurred during such Post-Acquisition Period, in each case in
connection with the combination of the operations of such Acquired Entity or Business or Converted Restricted Subsidiary with the operations
of Holdings and the Restricted Subsidiaries; provided that (a) at the election of Holdings, such Pro Forma Adjustment shall
not be required to be determined for any Acquired Entity or Business or Converted Restricted Subsidiary to the extent the aggregate consideration
paid in connection with such acquisition was less than $10,000,000 and (b) so long as such actions are taken during such Post-Acquisition
Period or such costs are incurred during such Post-Acquisition Period, as applicable, it may be assumed, for purposes of projecting such
pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, that the applicable amount of
such cost savings will be realizable during the entirety of such Test Period, or the applicable amount of such additional costs, as applicable,
will be incurred during the entirety of such Test Period; provided, further, that any such pro forma increase or decrease
to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be without duplication for cost savings or additional
costs already included in such Acquired EBITDA, such Consolidated EBITDA or Section 1.12, as the case may be, for such Test
Period.
“Pro Forma Basis,”
“Pro Forma Compliance,” and “Pro Forma Effect” shall mean, with respect to compliance with any
test, financial ratio, or covenant hereunder, that (i) to the extent applicable, the Pro Forma Adjustment shall have been made and
(ii) all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the
first day of the applicable period of measurement in such test or covenant: (a) income statement items (whether positive or negative)
attributable to the property or Person subject to such Specified Transaction, (1) in the case of a sale, transfer, or other disposition
of all or substantially all Capital Stock in any Subsidiary of Holdings or any division, product line, or facility used for operations
of Holdings or any of its Subsidiaries, shall be excluded, and (2) in the case of a Permitted Acquisition or Investment described
in the definition of Specified Transaction, shall be included, (b) any retirement of Indebtedness, and (c) other than as set
forth in the definition of Maximum Incremental Facilities Amount, any incurrence or assumption of Indebtedness by Holdings or any of
the Restricted Subsidiaries in connection therewith (it being agreed that if such Indebtedness has a floating or formula rate, such Indebtedness
shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate that
is or would be in effect with respect to such Indebtedness as at the relevant date of determination); provided that, without limiting
the application of the Pro Forma Adjustment pursuant to clause (a) above, the foregoing pro forma adjustments may be applied
to any such test or covenant solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and
give effect to operating expense reductions and operating enhancements that are (x)(1) directly attributable to such transaction,
(2) expected to have a continuing impact on Holdings, the Borrower or any of the other Restricted Subsidiaries, and (3) factually
supportable or (y) otherwise consistent with the definition of Pro Forma Adjustment.
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“Pro Forma Entity”
shall have the meaning provided in the definition of the term Acquired EBITDA.
“Prohibited Transaction”
shall have the meaning assigned to such term in Section 406 of ERISA and Section 4975(c) of the Code.
“Public Company
Costs” shall mean costs relating to compliance with the provisions of the Securities Act of 1933, as amended, and the Securities
Exchange Act, and other applicable Requirements of Law, in each case as applicable to companies with equity or debt securities held by
the public, the rules of national securities exchange companies with listed equity or debt securities, directors’ or managers’
compensation, fees and expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders
or debtholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing
fees.
“QFC”
shall have 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”
shall have the meaning provided in Section 13.24.
“Qualified Proceeds”
shall mean assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business.
“Qualified Stock”
of any Person shall mean Capital Stock of such Person other than Disqualified Stock of such Person.
“Qualifying IPO”
shall mean the issuance by Holdings or any Parent Entity of its common Equity Interests in an underwritten primary public offering (other
than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with
the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering) or in a firm commitment
underwritten offering (or series of related offerings of securities to the public pursuant to a final prospectus) made pursuant to the
Securities Act.
“Real Estate”
shall have the meaning provided in Section 9.1(f).
“Receivables Facility”
shall mean any of one or more receivables financing facilities (and any guarantee of such financing facility), as amended, supplemented,
modified, extended, renewed, restated, or refunded from time to time, the obligations of which are non-recourse (except for customary
representations, warranties, covenants, and indemnities made in connection with such facilities) to Holdings and the Restricted Subsidiaries
(other than a Receivables Subsidiary) pursuant to which Holdings or any Restricted Subsidiary sells, directly or indirectly, grants a
security interest in or otherwise transfers its accounts receivable to either (i) a Person that is not a Restricted Subsidiary or
(ii) a Receivables Subsidiary that in turn funds such purchase by purporting to sell its accounts receivable to a Person that is
not a Restricted Subsidiary or by borrowing from such a Person or from another Receivables Subsidiary that in turn funds itself by borrowing
from such a Person.
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“Receivables Fee”
shall mean distributions or payments made directly or by means of discounts with respect to any accounts receivable or participation
interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any
Receivables Facility.
“Receivables Subsidiary”
shall mean any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities, and in each case
engages only in activities reasonably related or incidental thereto or another Person formed for the purposes of engaging in a Receivables
Facility in which Holdings or any Subsidiary makes an Investment and to which Holdings or any Subsidiary transfers accounts receivables
and related assets.
“Recipient”
shall mean (a) the Administrative Agent, (b) any Lender and (c) any Letter of Credit Issuer, as applicable.
“Reference Time”
with respect to any setting of the then-current Benchmark shall mean, if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago
time) on the day that is two Business Days preceding the date of such setting or the time determined by the Administrative Agent in its
reasonable discretion.
“Refinanced Term
Loans” shall have the meaning provided in Section 13.1.
“Refinancing Indebtedness”
shall have the meaning provided in Section 10.1(x).
“Refunding Capital
Stock” shall have the meaning provided in Section 10.5(b)(2).
“Register”
shall have the meaning provided in Section 13.6(b)(iv).
“Regulation T”
shall mean Regulation T of the Federal Reserve Board as from time to time in effect and any successor to all or a portion thereof establishing
margin requirements.
“Regulation U”
shall mean Regulation U of the Federal Reserve Board as from time to time in effect and any successor to all or a portion thereof establishing
margin requirements.
“Regulation X”
shall mean Regulation X of the Federal Reserve Board as from time to time in effect and any successor to all or a portion thereof establishing
margin requirements.
“Reimbursement Date”
shall have the meaning provided in Section 3.4(a).
“Reimbursement Obligations”
shall mean the Borrower’s obligations to reimburse Unpaid Drawings pursuant to Section 3.4(a).
“Reinvestment Period”
shall mean 540 days following the date of receipt of Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event, or Permitted
Sale Leaseback.
“Rejection Notice”
shall have the meaning provided in Section 5.2(f).
“Related Business
Assets” shall mean assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided that
any assets received by Holdings or the Restricted Subsidiaries in exchange for assets transferred by Holdings or a Restricted Subsidiary
shall 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 would become a Restricted Subsidiary.
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“Related Fund”
shall mean, with respect to any Lender that is a Fund, any other Fund that is advised or managed by (a) such Lender, (b) an
Affiliate of such Lender or (c) an entity or an Affiliate of such entity that administers, advises or manages such Lender.
“Related Parties”
shall mean, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees, agents, trustees,
and advisors of such Person and any Person that possesses, directly or indirectly, the power to direct or cause the direction of the
management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise.
“Release”
shall mean any release, spill, emission, discharge, disposal, escaping, leaking, pumping, pouring, dumping, emptying, injection, or leaching
into the environment.
“Relevant Rate”
means (i) with respect to any Term Benchmark Borrowing, the Term SOFR Rate or (ii) with respect to any RFR Borrowing, the Daily
Simple SOFR, as applicable.
“Removal Effective
Date” shall have the meaning provided in Section 12.9(b).
“Repayment Amount”
shall mean the Initial Term Loan Repayment Amount, a New Term Loan Repayment Amount with respect to any Series, or an Extended Term Loan
Repayment Amount with respect to any Extension Series, as applicable.
“Replacement Term
Loan Commitment” shall mean the commitments of the Lenders to make Replacement Term Loans.
“Replacement Term
Loans” shall have the meaning provided in Section 13.1.
“Reportable Event”
shall mean any “reportable event”, as defined in Section 4043(c) of ERISA or the regulations issued thereunder,
with respect to a Pension Plan (other than a Pension Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Section 414 of the Code), other than those events as to which notice is waived pursuant
to PBGC Reg. § 4043 or any successor regulation thereto.
“Repricing Transaction”
shall mean (i) the incurrence by the Borrower of any Indebtedness in the form of a similar term B loan that is broadly marketed
or syndicated to banks and other institutional investors (a) having an Effective Yield for the respective Type of such Indebtedness
that is less than the Effective Yield for the Initial Term Loans of the respective equivalent Type, but excluding Indebtedness incurred
in connection with a Qualifying IPO, Change of Control or Transformative Acquisition or Transformative Disposition, and (b) the
proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding
principal of Initial Term Loans or (ii) any effective reduction in the Effective Yield for the Initial Term Loans (e.g.,
by way of amendment, waiver or otherwise), except for a reduction in connection with a Qualifying IPO, Change of Control or Transformative
Acquisition or Transformative Disposition. Any determination by the Administrative Agent with respect to whether a Repricing Transaction
shall have occurred shall be conclusive and binding on all Lenders holding the Initial Term Loans.
“Required Initial
Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding
principal amount of the Initial Term Loans (excluding Initial Term Loans held by Defaulting Lenders) at such date.
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“Required Lenders”
shall mean, at any date, (i) Non-Defaulting Lenders having or holding a majority of the sum of (a) the Adjusted Total Revolving
Credit Commitment (exclusive of Swingline Commitments) at such date, (b) the Adjusted Total Term Loan Commitment at such date, and
(c) the outstanding principal amount of the Term Loans (excluding Term Loans held by Defaulting Lenders) at such date or (ii) if
the Total Revolving Credit Commitment and the Total Term Loan Commitment have been terminated or for the purposes of acceleration pursuant
to Section 11, Non-Defaulting Lenders having or holding a majority of the outstanding principal amount of the Loans and Letter
of Credit Exposure (excluding the Loans and Letter of Credit Exposure of Defaulting Lenders) in the aggregate at such date.
“Required Revolving
Credit Lenders” shall mean, at any date, Non-Defaulting Lenders holding a majority of the Adjusted Total Revolving Credit Commitment
(exclusive of Swingline Commitments) at such date (or, if the Total Revolving Credit Commitment has been terminated at such time, a majority
of the Revolving Credit Exposure (excluding Revolving Credit Exposure of Defaulting Lenders) at such time).
“Required Term Loan
Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (i) the Adjusted Total
Term Loan Commitment at such date and (ii) the aggregate outstanding principal amount of the Term Loans (excluding Term Loans held
by Defaulting Lenders) at such date.
“Requirement of
Law” shall mean, as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents
of such Person, and any law, treaty, rule, or regulation or determination of an arbitrator or a court or other Governmental Authority,
in each case applicable to or binding upon such Person or any of its property or assets or to which such Person or any of its property
or assets is subject.
“Resignation Effective
Date” shall have the meaning provided in Section 12.9(a).
“Resolution Authority”
shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Investment”
shall mean an Investment other than a Permitted Investment.
“Restricted Payments”
shall have the meaning provided in Section 10.5(a).
“Restricted Subsidiary”
shall mean any Subsidiary of Holdings other than an Unrestricted Subsidiary.
“Retained Asset
Sale Proceeds” shall have the meaning provided in Section 10.4(c)(i).
“Retained Declined
Proceeds” shall have the meaning provided in Section 5.2(f).
“Retired Capital
Stock” shall have the meaning provided in Section 10.5(b)(2).
“Revolving Credit
Commitment” shall mean, as to each Revolving Credit Lender, its obligation to make Revolving Credit Loans to the Borrower pursuant
to Section 2.1(b), in an aggregate principal amount at any one time outstanding not to exceed the amount set forth, and opposite
such Lender’s name on Schedule 1.1(b) under the caption Revolving Credit Commitment or in the Assignment and Acceptance
pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with
this Agreement (including Section 2.14). The aggregate Revolving Credit Commitments of all Revolving Credit Lenders shall
be $300,000,000 on the Tenth Amendment Effective Date (the “Initial Revolving Credit Commitments”), as such amount
may be adjusted from time to time in accordance with the terms of this Agreement.
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“Revolving Credit
Commitment Percentage” shall mean at any time, for each Lender, the percentage obtained by dividing (i) such Lender’s
Revolving Credit Commitment at such time by (ii) the amount of the Total Revolving Credit Commitment at such time; provided
that at any time when the Total Revolving Credit Commitment shall have been terminated, each Lender’s Revolving Credit Commitment
Percentage shall be the percentage obtained by dividing (a) such Lender’s Revolving Credit Exposure at such time by (b) the
Revolving Credit Exposure of all Lenders at such time.
“Revolving Credit
Exposure” shall mean, with respect to any Lender at any time, the sum of (i) the aggregate principal amount of Revolving
Credit Loans of such Lender then outstanding, (ii) such Lender’s Letter of Credit Exposure at such time, and (iii) such
Lender’s Revolving Credit Commitment Percentage of the aggregate principal amount of all outstanding Swingline Loans at such time.
“Revolving Credit
Facility” shall mean, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments
at such time.
“Revolving Credit
Lender” shall mean, at any time, any Lender that has a Revolving Credit Commitment, Incremental Revolving Credit Commitment
or Extended Revolving Credit Commitment at such time.
“Revolving Credit
Loan” shall have the meaning provided in Section 2.1(b).
“Revolving Credit
Maturity Date” shall mean the earlier of (i) the Stated Revolving Credit Maturity Date and (ii) the Springing Maturity
Date; provided that the Revolving Credit Maturity Date shall be the Stated Revolving Credit Maturity Date if (a) there is
no Specified Term Loan Indebtedness outstanding or (b) the aggregate outstanding principal amount of all Specified Term Loan Indebtedness
on the Springing Maturity Date is less than $100,000,000; provided further that if the date referred to in clause (i) or
clause (ii) is not a Business Day, then such date shall be the immediately preceding Business Day.
“Revolving Credit
Termination Date” shall mean the date on which the Total Revolving Credit Commitments shall have terminated, no Revolving Credit
Loans or Swingline Loans shall be outstanding and the Letters of Credit Outstanding shall have been reduced to zero or Cash Collateralized.
“Revolving Loan”
shall mean, collectively or individually as the context may require, any (i) Revolving Credit Loan, (ii) Extended Revolving
Credit Loan, (iii) New Revolving Credit Loan, and (iv) Additional Revolving Credit Loan, in each case made pursuant to and
in accordance with the terms and conditions of this Agreement.
“RFR Loan”
shall mean a Loan that bears interest at a rate based on the Daily Simple SOFR.
“S&P”
shall mean S&P Global Ratings or any successor by merger or consolidation to its business.
“Sale Leaseback”
shall mean any arrangement with any Person providing for the leasing by Holdings or any Restricted Subsidiary of any real or tangible
personal property, which property has been or is to be sold or transferred by Holdings or such Restricted Subsidiary to such Person in
contemplation of such leasing.
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“Sanctioned Person”
shall mean, at any time, any Person subject or target of any Sanctions, including (a) any Person listed in any Sanctions-related
list of designated Persons maintained by the U.S. Government, including by OFAC, the U.S. Department of the Treasury or the U.S. Department
of State, or by the United Nations Security Council, the European Union or any European Union member state, His Majesty’s Treasury
of the United Kingdom or other relevant sanctions authority, (b) any Person organized or resident in a Designated Country or (c) any
Person owned by any such Person or Persons described in the foregoing clause (a) or (b) (for purposes of defining a Sanctioned
Person, as ownership and control may be defined and/or established in and/or by any applicable laws, rules, regulations, or orders).
“Sanctions”
shall mean any relevant sanctions administered or enforced by the government of the United States (including without limitation, OFAC
and the U.S. Department of State), the United Nations Security Council, the European Union (or its member states), His Majesty’s
Treasury (“HMT”) or other relevant sanctions authority.
“SEC”
shall mean the Securities and Exchange Commission or any successor thereto.
“Second Lien Intercreditor
Agreement” shall mean a First Lien/Second Lien Intercreditor Agreement substantially in the form of Exhibit I (with
such changes to such form as may be reasonably acceptable to the Administrative Agent and the Borrower) among the Administrative Agent,
the Collateral Agent and the representatives for purposes thereof for any Permitted Other Indebtedness Secured Parties that are holders
of Permitted Other Indebtedness Obligations having a Lien on the Collateral ranking junior to the Lien securing the Obligations.
“Section 2.14
Additional Amendment” shall have the meaning provided in Section 2.14(g)(iv).
“Section 9.1
Financials” shall mean the financial statements delivered, or required to be delivered, pursuant to Section 9.1(a) or
(b) together with the accompanying officer’s certificate delivered, or required to be delivered, pursuant to Section 9.1(d).
“Secured Cash Management
Agreement” shall mean any Cash Management Agreement that is entered into by and between Holdings or any of the Restricted Subsidiaries
and any Cash Management Bank.
“Secured Cash Management
Obligations” shall mean Obligations under Secured Cash Management Agreements.
“Secured Hedge Agreement”
shall mean any Hedge Agreement that is entered into by and between Holdings or any Restricted Subsidiary and any Hedge Bank.
“Secured Hedge Obligations”
shall mean Obligations under Secured Hedge Agreements.
“Secured Parties”
shall mean the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer, and each Lender, in each case with respect to
the Credit Facilities, each Hedge Bank that is party to any Secured Hedge Agreement with Holdings or any Restricted Subsidiary, each
Cash Management Bank that is party to a Secured Cash Management Agreement with Holdings or any Restricted Subsidiary and each sub-agent
pursuant to Section 12 appointed by the Administrative Agent with respect to matters relating to the Credit Facilities or
the Collateral Agent with respect to matters relating to any Security Document.
“Securities Exchange
Act” shall mean Securities Exchange Act of 1934, as amended.
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“Security Agreement”
shall mean the First Lien Security Agreement entered into as of the Closing Date by the Borrower, the other grantors party thereto, and
the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit D.
“Security Documents”
shall mean, collectively, the Pledge Agreement, the Security Agreement, the Mortgages, if executed, the First Lien Intercreditor Agreement,
if executed, the Second Lien Intercreditor Agreement, if executed, and each other security agreement or other instrument or document
executed and delivered pursuant to Sections 9.11, 9.12, or 9.14 or pursuant to any other such Security Documents
to secure the Obligations or to govern the lien priorities of the holders of Liens on the Collateral.
“Series”
shall have the meaning provided in Section 2.14(a).
“Significant Subsidiary”
shall mean, at any date of determination, (a) any Restricted Subsidiary whose gross revenues (when combined with the gross revenues
of such Restricted Subsidiary’s Subsidiaries after eliminating intercompany obligations) for the Test Period most recently ended
on or prior to such date were equal to or greater than 10% of the consolidated gross revenues of Holdings and the Restricted Subsidiaries
for such period, determined in accordance with GAAP or (b) each other Restricted Subsidiary that, when such Restricted Subsidiary’s
total gross revenues (when combined with the total gross revenues of such Restricted Subsidiary’s Subsidiaries after eliminating
intercompany obligations) are aggregated with each other Restricted Subsidiary (when combined with the total gross revenues of such Restricted
Subsidiary’s Subsidiaries after eliminating intercompany obligations) that is the subject of an Event of Default described in Section 11.5
would constitute a “Significant Subsidiary” under clause (a) above.
“Similar Business”
shall mean any business conducted or proposed to be conducted by Holdings and the Restricted Subsidiaries on the Eleventh Amendment Effective
Date or any business that is similar, reasonably related, synergistic, incidental, or ancillary thereto.
“SOFR”
shall mean a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator”
shall mean the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s
Website” shall mean the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured
overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Rate Day”
shall have the meaning specified in the definition of “Daily Simple SOFR”.
“Sold Entity or
Business” shall have the meaning provided in the definition of the term Consolidated EBITDA.
“Solvent”
shall mean, after giving effect to the consummation of the Transactions, (i) the sum of the liabilities (including contingent liabilities)
of the Borrower and its Restricted Subsidiaries, on a consolidated basis, does not exceed the present fair saleable value of the present
assets of the Borrower and its Restricted Subsidiaries, on a consolidated basis; (ii) the fair value of the property of the Borrower
and its Restricted Subsidiaries, on a consolidated basis, is greater than the total amount of liabilities (including contingent liabilities)
of the Borrower and its Restricted Subsidiaries, on a consolidated basis; (iii) the capital of the Borrower and its Restricted Subsidiaries,
on a consolidated basis, is not unreasonably small in relation to their business as contemplated on the date hereof; and (iv) the
Borrower and its Restricted Subsidiaries, on a consolidated basis, have not incurred and do not intend to incur, or believe that they
will incur, debts including current obligations beyond their ability to pay such debts as they become due (whether at maturity or otherwise).
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“Specified Existing
Revolving Credit Commitment” shall have the meaning provided in Section 2.14(g)(ii).
“Specified Term
Loan Indebtedness” shall mean the Term Loans outstanding under this Agreement and any Indebtedness incurred to refinance, replace,
refund, renew or extend such Term Loans (and any successive refinancings, replacements, refunds, renewals or extensions thereof), in
each case with a then-scheduled maturity date occurring prior to the Stated Revolving Credit Maturity Date.
“Specified Transaction”
shall mean, with respect to any period, any Investment (including a Permitted Acquisition), any asset sale, incurrence or repayment of
Indebtedness, Restricted Payment, Subsidiary designation, New Term Loan, Incremental Revolving Credit Commitment, or other event
that in each case by the terms of this Agreement requires Pro Forma Compliance with a test or covenant hereunder or requires such test
or covenant to be calculated on a Pro Forma Basis.
“Sponsor”
shall mean any of KKR and its Affiliates but excluding portfolio companies of any of the foregoing.
“Sponsor Management
Agreement” shall mean the management agreement between certain of the management companies associated with the Initial Investors
and Holdings dated as of December 18, 2013.
“Sponsor Model”
shall mean the Sponsor’s financial model dated December 6, 2013 used in connection with the syndication of the Credit Facilities.
“Spot Rate”
for any currency shall mean the rate determined by using the rate of exchange for the purchase of dollars with such currency in the London
foreign exchange market at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange
computation is made as displayed by ICE Data Services; provided that the Administrative Agent may obtain such spot rate from another
financial institution designated by the Administrative Agent if it does not have as of the date of determination a spot buying rate for
any such currency.
“Springing Maturity
Date” shall mean the date that is 91 days prior to the earliest then-scheduled maturity date of any Specified Term Loan Indebtedness.
“SPV”
shall have the meaning provided in Section 13.6(g).
“Stated Amount”
of any Letter of Credit shall mean the maximum amount from time to time available to be drawn thereunder, determined without regard to
whether any conditions to drawing could then be met; provided, however, that with respect to any Letter of Credit that
by its terms or the terms of any Issuer Document provides for one or more automatic increases in the stated amount thereof, the Stated
Amount 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.
“Stated Revolving
Credit Maturity Date” shall mean April 22, 2031.
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“Status”
shall mean the existence of (a) Level I Status or Level II Status and (b) Level I Revolving Status, Level II Revolving Status
or Level III Revolving Status, as the case may be, on such date. Changes in Status resulting from changes in the Consolidated First Lien
Secured Debt to Consolidated EBITDA Ratio shall become effective as of the first day following each date that (i) Section 9.1
Financials for the first full fiscal quarter ended after the Tenth Amendment Effective Date are delivered to the Administrative Agent
under Section 9.1 and (ii) an officer’s certificate is delivered by Holdings or the Borrower to the Administrative
Agent setting forth, with respect to such Section 9.1 Financials, the then-applicable Status, and shall remain in effect until the
next change to be effected pursuant to this definition; provided that each determination of the Consolidated First Lien Secured
Debt to Consolidated EBITDA Ratio pursuant to this definition shall be made as of the end of the Test Period ending at the end of the
fiscal period covered by the relevant Section 9.1 Financials.
“Stock Equivalents”
shall mean all securities convertible into or exchangeable for Capital Stock and all warrants, options, or other rights to purchase or
subscribe for any Capital Stock, whether or not presently convertible, exchangeable, or exercisable.
“Subordinated Indebtedness”
shall mean Indebtedness of Holdings, the Borrower, or any other Guarantor that is by its terms subordinated in right of payment to the
obligations of Holdings, the Borrower, or such Guarantor, as applicable, under this Agreement or the Guarantee, as applicable.
“Subsidiary”
of any Person shall mean and include (i) any corporation more than 50% of whose Capital Stock of any class or classes having by
the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the
time Capital Stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person directly or indirectly through Subsidiaries, or (ii) any limited liability company,
partnership, association, joint venture, or other entity of which such Person directly or indirectly through Subsidiaries has more than
a 50% equity interest at the time. Unless otherwise expressly provided, all references herein to a Subsidiary shall mean a Subsidiary
of Holdings.
“Supported QFC”
shall have the meaning provided in Section 13.24.
“Swap Obligation”
shall mean, with respect to any Credit Party, any obligation to pay or perform under any agreement, contract, or transaction that constitutes
a “swap” within the meaning of section 1(a)(47) of the Commodity Exchange Act.
“Swingline Commitment”
shall mean $30,000,000 Swingline Commitment is part of and not in addition to the Revolving Credit Commitment.
“Swingline Exposure”
shall mean at any time the aggregate principal amount at such time of all outstanding Swingline Loans. The Swingline Exposure of any
Revolving Credit Lender at any time shall equal its Revolving Credit Commitment Percentage of the aggregate Swingline Exposure at such
time.
“Swingline Lender”
shall mean JPMorgan Chase Bank, N.A., in its capacity as lender of Swingline Loans hereunder or any replacement or successor thereto.
“Swingline Loans”
shall have the meaning provided in Section 2.1(c).
“Swingline Maturity
Date” shall mean, with respect to any Swingline Loan, the date that is five Business Days prior to the Revolving Credit Maturity
Date.
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“Taxes”
shall mean any and all present or future direct or indirect taxes, duties, levies, imposts, assessments, deductions, withholdings (including
backup withholding), fees, or other similar charges imposed by any Governmental Authority and any interest, fines, penalties, or additions
to tax with respect to the foregoing.
“Tenth Amendment”
shall mean that certain Amendment No. 10 to Credit Agreement, dated as of the Tenth Amendment Effective Date, to this Agreement.
“Tenth Amendment
Effective Date” shall mean May 4, 2026.
“Term Benchmark”
when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Term SOFR Rate.
“Term Loan Commitment”
shall mean, with respect to each Lender, such Lender’s New Term Loan Commitment with respect to any Series and Replacement
Term Loan Commitment with respect to any Series.
“Term Loan Extension
Request” shall have the meaning provided in Section 2.14 (g)(i).
“Term Loan Lender”
shall mean, at any time, any Lender that has a Term Loan Commitment or an outstanding Term Loan.
“Term Loan Standstill
Period” shall have the meaning provided in Section 11.3(a).
“Term Loans”
shall mean the Initial Term Loans, any New Term Loans, any Replacement Term Loans, and any Extended Term Loans, collectively.
“Term SOFR Determination
Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate.
“Term SOFR Rate”
shall mean, with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest Period, the Term SOFR
Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such
tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator; provided that
if the Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes
of this Agreement.
“Term SOFR Reference
Rate” shall mean, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any
Term Benchmark Borrowing denominated in Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum determined
by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination
Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and
a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then the Term SOFR Reference Rate for such Term SOFR
Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business
Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding Business
Day is not more than five (5) Business Days prior to such Term SOFR Determination Day.
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“Terminated Contracts”
shall mean binding contracts with customers that have terminated (whether on or before their stated expiration).
“Termination Date”
shall mean the date on which the Commitments have terminated and each Letter of Credit has terminated or been Cash Collateralized in
accordance with the terms of this Agreement and the Loans and Unpaid Drawings, together with interest, Fees and all other Obligations
(other than contingent indemnity obligations as to which no valid demand has been made, Secured Hedge Obligations, Secured Cash Management
Obligations and Letters of Credit Cash Collateralized in accordance with the terms of this Agreement), are paid in full.
“Test Period”
shall mean, for any determination under this Agreement, the four consecutive fiscal quarters of Holdings most recently ended on or prior
to such date of determination and for which Section 9.1 Financials shall have been delivered (or required to be delivered) to the
Administrative Agent (or, before the first delivery of Section 9.1 Financials, the most recent period of four fiscal quarters at
the end of which financial statements are available).
“Title Policy”
shall have the meaning provided in Section 9.14(c).
“Total Credit Exposure”
shall mean, at any date, the sum, without duplication, of (i) the Total Revolving Credit Commitment at such date (or, if the Total
Revolving Credit Commitment shall have terminated on such date, the aggregate Revolving Credit Exposure of all Lenders at such date),
(ii) the Total Term Loan Commitment at such date, and (iii) without duplication of clause (ii), the aggregate outstanding
principal amount of all Term Loans at such date.
“Total Revolving
Credit Commitment” shall mean the sum of the Revolving Credit Commitments of all the Lenders.
“Total Term Loan
Commitment” shall mean the sum of the New Term Loan Commitments, if applicable, of all the Lenders.
“Transaction Expenses”
shall mean any fees, costs, or expenses incurred or paid by Holdings, the Borrower, or any of their respective Affiliates in connection
with the Transactions, this Agreement, and the other Credit Documents, and the transactions contemplated hereby and thereby.
“Transactions”
shall mean, collectively, the transactions contemplated by this Agreement, the Tenth Amendment and the Eleventh Amendment, and the consummation
of any other transactions in connection with the foregoing (including the payment of the fees and expenses incurred in connection with
any of the foregoing (including the Transaction Expenses)).
“Transferee”
shall have the meaning provided in Section 13.6(e).
“Transformative
Acquisition” shall mean any acquisition by the Borrower or any other Restricted Subsidiary that (i) is not permitted by
the terms of the Credit Documents immediately prior to the consummation of such acquisition or (ii) would result in an upsizing
of the Credit Facilities.
“Transformative
Disposition” shall mean any disposition by the Borrower or any Restricted Subsidiary that (a) is not permitted by the
terms of the Credit Documents immediately prior to the consummation of such disposition or (b) if permitted by the terms of the
Credit Documents immediately prior to the consummation of such disposition, would not provide the Borrower and the other restricted subsidiaries
with a durable capital structure, as determined by the Borrower acting in good faith.
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“Type”
when used in reference to any Loan or Borrowing, shall refer to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Term SOFR Rate or the ABR.
“UCP”
shall mean, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber
of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
“UK Financial Institutions”
shall mean 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”
shall mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial
Institution.
“Unadjusted Benchmark
Replacement” shall mean the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unpaid Drawing”
shall have the meaning provided in Section 3.4(a).
“Unrestricted Subsidiary”
shall mean (i) any Subsidiary of Holdings which at the time of determination is an Unrestricted Subsidiary (as designated by the
board of directors of Holdings, as provided below) and (ii) any Subsidiary of an Unrestricted Subsidiary.
The board of directors of
Holdings may designate any Subsidiary of Holdings (including any existing Subsidiary and any newly acquired or newly formed Subsidiary)
other than the Borrower or a Subsidiary of Holdings that is a direct or indirect parent of the Borrower to be an Unrestricted Subsidiary
unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on, any property
of, Holdings or any Subsidiary of Holdings (other than any Subsidiary of the Subsidiary to be so designated or an Unrestricted Subsidiary);
provided that:
(a) such
designation complies with Section 10.5; and
(b) immediately
after giving effect to such designation, no Event of Default under Section 11.1 or 11.5 shall have occurred and be
continuing.
The board of directors
of Holdings may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect
to such designation no Event of Default under Section 11.1 or 11.5 shall have occurred and be continuing and either:
(i) Holdings could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
the first paragraph of Section 10.1 or (ii) the Fixed Charge Coverage Ratio for Holdings and the Restricted Subsidiaries
would be greater than such ratio for Holdings and the Restricted Subsidiaries immediately prior to such designation, in each case on
a pro forma basis taking into account such designation.
Any such designation by the
board of directors of Holdings shall be notified by Holdings to the Administrative Agent by promptly delivering to the Administrative
Agent a copy of the board resolution giving effect to such designation and a certificate of an Authorized Officer of Holdings certifying
that such designation complied with the foregoing provisions.
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“U.S.”
and “United States” shall mean the United States of America.
“U.S. Government
Securities Business Day” shall mean any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which
the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the
entire day for purposes of trading in United States government securities.
“U.S. Lender”
shall have the meaning provided in Section 5.4(e)(ii)(A).
“U.S. Special Resolution
Regime” shall have the meaning provided in Section 13.24.
“Voting Stock”
shall mean, with respect to any Person as of any date, 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.
“Wholly-Owned Restricted
Subsidiary” of any Person shall mean a Restricted Subsidiary of such Person, 100% of the outstanding Capital Stock or other
ownership interests of which (other than directors’ qualifying shares) shall at the time be owned by such Person or by one or more
Wholly-Owned Subsidiaries of such Person.
“Wholly-Owned Subsidiary”
of any Person shall mean a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other
than directors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly-Owned Subsidiaries of such
Person.
“Withdrawal Liability”
shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Title IV of ERISA.
“Withholding Agent”
shall mean any Credit Party, the Administrative Agent and, in the case of any U.S. federal withholding Tax, any other applicable withholding
agent.
“Write-Down and
Conversion Powers” shall mean, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers
of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers
of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any
UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into
shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect
as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In
Legislation that are related to or ancillary to any of those powers.
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1.2 Other
Interpretive Provisions. With reference to this Agreement and each other Credit Document, unless otherwise specified herein or in
such other Credit Document:
(a) The
meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) The
words “herein”, “hereto”, “hereof”, and “hereunder” and words of similar import when
used in any Credit Document shall refer to such Credit Document as a whole and not to any particular provision thereof.
(c) Section,
Exhibit, and Schedule references are to the Credit Document in which such reference appears.
(d) The
term “including” is by way of example and not limitation.
(e) The
term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements
and other writings, however evidenced, whether in physical or electronic form.
(f) In
the computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including”; the words “to” and “until” each mean “to but excluding”; and the word “through”
means “to and including”.
(g) Section headings
herein and in the other Credit Documents are included for convenience of reference only and shall not affect the interpretation of this
Agreement or any other Credit Document.
(h) The
words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(i) All
references to “knowledge” or “awareness” of any Credit Party or any Restricted Subsidiary thereof means the actual
knowledge of an Authorized Officer of such Credit Party or such Restricted Subsidiary.
1.3 Accounting
Terms.
(a) Except
as expressly provided herein, all accounting terms not specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP, applied in a consistent manner.
(b) Notwithstanding
anything to the contrary herein, for purposes of determining compliance with any test or covenant contained in this Agreement with respect
to any period during which any Specified Transaction occurs, the Fixed Charge Coverage Ratio, Consolidated Total Debt to Consolidated
EBITDA Ratio, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio, and the First Lien Secured Leverage Test shall each
be calculated with respect to such period and such Specified Transaction on a Pro Forma Basis.
(c) Where
reference is made to “Holdings and the Restricted Subsidiaries on a consolidated basis” or similar language, such consolidation
shall not include any Subsidiaries of Holdings other than Restricted Subsidiaries.
1.4 Rounding.
Any financial ratios required to be maintained by Holdings pursuant to this Agreement (or required to be satisfied in order for a specific
action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying
the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to
the nearest number.
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1.5 References
to Agreements Laws, Etc. Unless otherwise expressly provided herein, (a) references to organizational documents, agreements
(including the Credit Documents), and other Contractual Requirements shall be deemed to include all subsequent amendments, restatements,
amendment, and restatements, extensions, supplements, modifications, replacements, refinancings, renewals, or increases, but only to
the extent that such amendments, restatements, amendment, and restatements, extensions, supplements, modifications, replacements, refinancings,
renewals, or increases are permitted by any Credit Document; and (b) references to any Requirement of Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing, or interpreting such Requirement of Law.
1.6 Exchange
Rates. Notwithstanding the foregoing, for purposes of any determination under Section 9, Section 10 or Section 11
or any determination under any other provision of this Agreement expressly requiring the use of a current exchange rate, all amounts
incurred, outstanding, or proposed to be incurred or outstanding in currencies other than Dollars shall be translated into Dollars at
the Spot Rate; provided, however, that for purposes of determining compliance with Section 10 with respect
to the amount of any Indebtedness, Restricted Investment, Lien, Asset Sale, or Restricted Payment in a currency other than Dollars, no
Default or Event of Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time
such Indebtedness, Lien or Restricted Investment is incurred or Asset Sale or Restricted Payment made; provided that, for the
avoidance of doubt, the foregoing provisions of this Section 1.6 shall otherwise apply to such Sections, including with respect
to determining whether any Indebtedness, Lien, or Investment may be incurred or Asset Sale or Restricted Payment made at any time under
such Sections. For purposes of any determination of Consolidated Total Debt or Consolidated First Lien Secured Debt, amounts in currencies
other than Dollars shall be translated into Dollars at the currency exchange rates used in preparing the most recently delivered Section 9.1
Financials.
1.7 Rates.
The interest rate on a Loan denominated in dollars may be derived from an interest rate benchmark that may be discontinued or is, or
may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 2.10
provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility
for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any
interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including
without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will
be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume
or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates
and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any
alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case,
in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion
to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each
case pursuant to the terms of this Agreement, and shall have no liability to the 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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1.8 Times
of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard,
as applicable).
1.9 Timing
of Payment or Performance. Except as otherwise provided herein, when the payment of any obligation or the performance of any covenant,
duty, or obligation is stated to be due or performance required on (or before) a day which is not a Business Day, the date of such payment
(other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day,
and such extension of time shall be reflected in computing interest or fees, as the case may be.
1.10 Certifications.
All certifications to be made hereunder by an officer or representative of a Credit Party shall be made by such a Person in his or her
capacity solely as an officer or a representative of such Credit Party, on such Credit Party’s behalf and not in such Person’s
individual capacity.
1.11 Compliance
with Certain Sections. In the event that any Lien, Investment, Indebtedness (whether at the time of incurrence or upon
application of all or a portion of the proceeds thereof), disposition, Restricted Payment, Affiliate transaction, Contractual Requirement,
or prepayment of Indebtedness meets the criteria of one or more than one of the categories of transactions then permitted pursuant to
any clause or subsection of Section 9.9 or subsections of Section 10, such transaction (or portion thereof) at
any time shall be permitted under one or more of such clauses as determined by the Borrower in its sole discretion at such time.
1.12 Pro
Forma and Other Calculations.
(a) For
purposes of calculating the Fixed Charge Coverage Ratio, Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio, Consolidated
Total Debt to Consolidated EBITDA Ratio, Investments, acquisitions, dispositions, mergers, consolidations, and disposed operations
(as determined in accordance with GAAP) that have been made by Holdings or any Restricted Subsidiary during the Test Period or subsequent
to such Test Period and on or prior to or simultaneously with the date of determination shall be calculated on a Pro Forma Basis assuming
that all such Investments, acquisitions, dispositions, mergers, consolidations, and disposed operations (and the change in any associated
fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the Test Period.
If since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into Holdings
or any Restricted Subsidiary since the beginning of such period) shall have made any Investment, acquisition, disposition, merger, consolidation,
or disposed operation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio, Consolidated
First Lien Secured Debt to Consolidated EBITDA Ratio and Consolidated Total Debt to Consolidated EBITDA Ratio shall be calculated giving
Pro Forma Effect thereto for such Test Period as if such Investment, acquisition, disposition, merger, consolidation, or disposed operation
had occurred at the beginning of the Test Period. Notwithstanding anything to the contrary herein, with respect to any amounts incurred
or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial
ratio or test (including, without limitation, the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Debt to Consolidated
EBITDA Ratio and Consolidated Total Debt to Consolidated EBITDA Ratio) (any such amounts, the “Fixed Amounts”) substantially
concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that
requires compliance with any such financial ratio or test (any such amounts, the “Incurrence Based Amounts”), it is
understood and agreed that the Fixed Amounts (and any cash proceeds thereof) shall be disregarded in the calculation of the financial
ratio or test applicable to the Incurrence Based Amounts in connection with such substantially concurrent incurrence, except that incurrences
of Indebtedness and Liens constituting Fixed Amounts shall be taken into account for purposes of Incurrence Based Amounts other than
Incurrence Based Amounts contained in Section 10.1 or Section 10.2.
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(b) For
purposes of this definition, whenever Pro Forma Effect is to be given to a transaction, the pro forma calculations shall be made in good
faith by a responsible financial or accounting officer of the Borrower (and may include, for the avoidance of doubt and without duplication,
cost savings, operating expense enhancements and operating expense reductions resulting from such Investment, acquisition, merger, or
consolidation which is being given Pro Forma Effect that have been or are expected to be realized; provided that such costs savings,
operating expense enhancements and operating expense reductions are made in compliance with the definition of Pro Forma Adjustment).
If any Indebtedness bears a floating rate of interest and is being given Pro Forma Effect, the interest on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account
any Hedging Obligations applicable to such Indebtedness). If any Indebtedness bears a floating rate of interest and is being given Pro
Forma Effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account for such entire period, any Hedging Obligation applicable to such Indebtedness
with a remaining term of 12 months or longer, and in the case of any Hedging Obligation applicable to such Indebtedness with a remaining
term of less than 12 months, taking into account such Hedging Obligation to the extent of its remaining term). Interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer
of Holdings to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making
the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a Pro Forma Basis shall
be computed based upon the average daily balance of such Indebtedness during the applicable period (or, if lower, the greater of (i) maximum
commitments under such revolving credit facilities as of the date of determination and (ii) the aggregate principal amount of loans
outstanding under such a revolving credit facilities on such date). Interest on Indebtedness that may optionally be determined at an
interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to
have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower may designate.
For the avoidance of doubt, in connection with the incurrence of any Indebtedness under Section 2.14, the definitions of
Required Lenders, Required Revolving Credit Lenders and Required Term Loan Lenders shall be calculated on a Pro Forma Basis in accordance
with this Section 1.12, Section 2.14 and the definition of Maximum Incremental Facilities Amount; provided
that any waiver, amendment or modification of the terms of this Agreement obtained as a result of such incurrence (i) will become
operative only upon the incurrence of such Indebtedness, (ii) is not required in order to amend, modify or avoid a covenant default
and (iii) does not affect the rights or duties under this Agreement of Lenders holding Loans or Commitments outstanding prior to
the incurrence of such Indebtedness of any then outstanding Class exclusive of the Lenders in respect of such Indebtedness to be
incurred in that Class.
(c) In
connection with any action being taken solely in connection with a Limited Condition Transaction, for purposes of:
(i) determining
compliance with any provision of the Credit Documents which requires the calculation of the Consolidated First Lien Secured Debt to Consolidated
EBITDA Ratio, Consolidated Senior Secured Debt to Consolidated EBITDA, Consolidated Total Debt to Consolidated EBITDA Ratio or the Fixed
Charge Coverage Ratio;
(ii) determining
the accuracy of representations and warranties in Section 8 and/or whether a Default or Event of Default shall have occurred and
be continuing under Section 11; or
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(iii) testing
availability under baskets set forth in the Credit Documents (including baskets measured as a percentage of Consolidated EBITDA or Consolidated
Total Assets);
in each case, at the option of the Borrower (the
Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”),
the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements
for such Limited Condition Transaction are entered into (the “LCT Test Date”), and if, after giving Pro Forma Effect
to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence
of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Test Period ending prior
to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratio or basket,
such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election
and any of the ratios or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations
in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited
Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed
to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction,
then in connection with any subsequent calculation of any ratio or basket availability with respect to the incurrence of Indebtedness
or Liens, or the making of Restricted Payments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets
of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted
Subsidiary on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction
is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without
consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited
Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds
thereof) have been consummated until after such time as the Limited Condition Transaction has actually closed or the definitive agreement
with respect thereto has been terminated or expires.
(d) Notwithstanding
anything to the contrary in this Section 1.12 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 as discontinued operations, no Pro Forma
Effect shall be given to any discontinued operations (and the Consolidated EBITDA attributable to any such Person, business, assets or
operations shall not be excluded for any purposes hereunder) until such disposition shall have been consummated.
(e) Any
determination of Consolidated Total Assets shall be made by reference to the last day of the Test Period most recently ended on or prior
to the relevant date of determination.
(f) Except
as otherwise specifically provided herein, all computations of Excess Cash Flow, Consolidated Total Assets, Available Amount, Consolidated
First Lien Secured Debt to Consolidated EBITDA Ratio, Consolidated Senior Secured Debt to Consolidated EBITDA Ratio, Consolidated Total
Debt to Consolidated EBITDA Ratio, the Fixed Charge Coverage Ratio and other financial ratios and financial calculations (and all definitions
(including accounting terms) used in determining any of the foregoing) and all computations and all definitions (including accounting
terms) used in determining compliance with Section 10.7 shall be calculated, in each case, with respect to Holdings and the Restricted
Subsidiaries on a consolidated basis.
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1.13 Divisions.
For all purposes under the Credit Documents, in connection with any division or plan of division under Delaware law (or any comparable
event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset,
right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the
subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired
on the first date of its existence by the holders of its Equity Interests at such time.
Section 2. Amount
and Terms of Credit
2.1 Commitments.
(a) Subject
to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan severally agrees to make the Initial Term
Loans as set forth in the Eleventh Amendment and to consent to the terms thereof and hereof, which Initial Term Loans shall not exceed
for any such Lender the Initial Term Loan Commitment of such Lender. Such Term Loans (i) may at the option of the Borrower be incurred
and maintained as, and/or converted into, ABR Loans or Term Benchmark Loans, provided that all Term Loans made by each of the
Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Term Loans of the same
Type and (ii) may be repaid or prepaid (without premium or penalty other than as set forth in Section 5.1(b)) in accordance
with the provisions hereof, but once repaid or prepaid, may not be reborrowed. On the Initial Term Loan Maturity Date, all then unpaid
Initial Term Loans shall be repaid in full in Dollars. The Term Loans funded on the Eleventh Amendment Effective Date will be funded
with an original issue discount of 0.25% (it being agreed that the Borrower shall be obligated to repay 100% of the principal amount
of each Term Loan and interest shall accrue on 100% of the principal amount of each Term Loan, in each case as provided herein).
(b) Subject
to and upon the terms and conditions herein set forth each Revolving Credit Lender severally agrees to make Revolving Credit Loans denominated
in Dollars to the Borrower from its applicable lending office (each such loan, a “Revolving Credit Loan”) in an aggregate
principal amount not to exceed at any time outstanding the amount of such Revolving Credit Lender’s Revolving Credit Commitment,
provided that any of the foregoing such Revolving Credit Loans (A) shall be made at any time and from time to time on and
after the Closing Date and prior to the Revolving Credit Maturity Date, (B) may, at the option of the Borrower be incurred and maintained
as, and/or converted into, ABR Loans (solely in the case of Revolving Credit Loans denominated in Dollars) or Term Benchmark Loans that
are Revolving Credit Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing
shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type, (C) may be repaid
(without premium or penalty) and reborrowed in accordance with the provisions hereof, (D) shall not, for any Lender at any time,
after giving effect thereto and to the application of the proceeds thereof, result in such Revolving Credit Lender’s Revolving
Credit Exposure in respect of any Class of Revolving Loans at such time exceeding such Revolving Credit Lender’s Revolving
Credit Commitment in respect of such Class of Revolving Loan at such time and (E) shall not, after giving effect thereto and
to the application of the proceeds thereof, result at any time in the aggregate amount of the Revolving Credit Lenders’ Revolving
Credit Exposures at such time exceeding the Total Revolving Credit Commitment then in effect or the aggregate amount of the Revolving
Credit Lenders’ Revolving Credit Exposures of any Class of Revolving Loans at such time exceeding the aggregate Revolving
Credit Commitment with respect to such Class.
(c) Subject
to and upon the terms and conditions set forth herein, the Swingline Lender in its individual capacity agrees, at any time and from time
to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each a “Swingline Loan”
and, collectively the “Swingline Loans”) to the Borrower, which Swingline Loans (i) shall be ABR Loans, (ii) shall
have the benefit of the provisions of Section 2.1(d), (iii) shall not exceed at any time outstanding the Swingline Commitment,
(iv) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate
amount of the Revolving Credit Lenders’ Revolving Credit Exposures at such time exceeding the Revolving Credit Commitment then
in effect, and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all Swingline
Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from Holdings,
the Borrower, the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default exists and
is continuing until such time as the Swingline Lender shall have received written notice of (i) rescission of all such notices from
the party or parties originally delivering such notice or (ii) the waiver of such Default or Event of Default in accordance with
the provisions of Section 13.1.
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(d) On
any Business Day, the Swingline Lender may, in its sole discretion, give notice to each Revolving Credit Lender that all then-outstanding
Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case (i) Revolving Credit Loans constituting
ABR Loans shall be made on the immediately succeeding Business Day (each such Borrowing, a “Mandatory Borrowing”)
by each Revolving Credit Lender pro rata based on each Revolving Credit Lender’s Revolving Credit Commitment Percentage, and the
proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans.
Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one Business Day’s notice pursuant
to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing
by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for
each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied,
(iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing, or
(v) any reduction in the Total Revolving Credit Commitment after any such Swingline Loans were made. In the event that, in the sole
judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including
as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Revolving Credit Lender hereby
agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding
Swingline Loans as shall be necessary to cause the Lenders to share in such Swingline Loans ratably based upon their respective Revolving
Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account
of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation,
shall be payable to such Lender purchasing same from and after such date of purchase.
(e) If
the maturity date shall have occurred in respect of any tranche of Revolving Credit Commitments (the “Expiring Credit Commitment”)
at a time when another tranche or tranches of Revolving Credit Commitments is or are in effect with a longer maturity date (each a “Non-Expiring
Credit Commitment” and collectively, the “Non-Expiring Credit Commitments”), then with respect to each outstanding
Swingline Loan, if consented to by the Swingline Lender (such consent not to be unreasonably withheld, conditioned or delayed), on the
earliest occurring maturity date such Swingline Loan shall be deemed reallocated to the tranche or tranches of the Non-Expiring Credit
Commitments on a pro rata basis; provided that (x) to the extent that the amount of such reallocation would cause the aggregate
credit exposure to exceed the aggregate amount of such Non-Expiring Credit Commitments, immediately prior to such reallocation the amount
of Swingline Loans to be reallocated equal to such excess shall be repaid or Cash Collateralized and (y) notwithstanding the foregoing,
if a Default or Event of Default has occurred and is continuing, the Borrower shall still be obligated to pay Swingline Loans allocated
to the Revolving Credit Lenders holding the Expiring Credit Commitments at the maturity date of the Expiring Credit Commitment or if
the Loans have been accelerated prior to the maturity date of the Expiring Credit Commitment. Upon the maturity date of any tranche of
Revolving Credit Commitments, the sublimit for Swingline Loans may be reduced as agreed between the Swingline Lender and the Borrower,
without the consent of any other Person.
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2.2 Minimum
Amount of Each Borrowing; Maximum Number of Borrowings. The aggregate principal amount of each Borrowing of Term Loans or Revolving
Credit Loans shall be in a minimum amount of at least the Minimum Borrowing Amount for such Type of Loans and in a multiple of $100,000
in excess thereof and Swingline Loans shall be in a minimum amount of $500,000 and in a multiple of $100,000 in excess thereof (except
that Mandatory Borrowings shall be made in the amounts required by Section 2.1(d) and Revolving Credit Loans to reimburse
the Letter of Credit Issuer with respect to any Unpaid Drawing shall be made in the amounts required by Section 3.3 or Section 3.4,
as applicable). More than one Borrowing may be incurred on any date; provided that at no time shall there be outstanding more
than five Borrowings of Term Benchmark Loans that are Term Loans and fifteen Borrowings of Term Benchmark Loans that are Revolving Credit
Loans under this Agreement.
2.3 Notice
of Borrowing.
(a) [Reserved].
(b) Whenever
the Borrower desires to incur Revolving Credit Loans (other than Mandatory Borrowings or borrowings to repay Unpaid Drawings), the Borrower
shall give the Administrative Agent at the Administrative Agent’s Office (such notice, a “Notice of Borrowing”),
(i) prior to 12:00 noon (New York City Time) at least three Business Days’ prior written notice of each Borrowing of Term
Benchmark Loans that are Revolving Credit Loans and (ii) prior to 10:00 a.m. (New York City time) on the day of such Borrowing
prior written notice of each Borrowing of Revolving Credit Loans that are ABR Loans. Each such Notice of Borrowing, except as otherwise
expressly provided in Section 2.10, shall specify (x) the aggregate principal amount of the Revolving Credit Loans to
be made pursuant to such Borrowing, (y) the date of Borrowing (which shall be a Business Day) and (z) whether the respective
Borrowing shall consist of ABR Loans or Term Benchmark Loans that are Revolving Credit Loans and, if Term Benchmark Loans that are Revolving
Credit Loans, the Interest Period to be initially applicable thereto. The Administrative Agent shall promptly give each Revolving Credit
Lender written notice of each proposed Borrowing of Revolving Credit Loans, of such Lender’s Revolving Credit Commitment Percentage
thereof, of the identity of the Borrower, and of the other matters covered by the related Notice of Borrowing.
(c) Whenever
the Borrower desires to incur Swingline Loans hereunder, the Borrower shall give the Swingline Lender written notice with a copy to the
Administrative Agent of each Borrowing of Swingline Loans prior to 2:00 p.m. (New York City time) on the date of such Borrowing.
Each such notice shall specify (x) the aggregate principal amount of the Swingline Loans to be made pursuant to such Borrowing and
(y) the date of Borrowing (which shall be a Business Day). Each Swingline Loan shall be an ABR Borrowing.
(d) Mandatory
Borrowings shall be made upon the notice specified in Section 2.1(d), with the Borrower irrevocably agreeing, by its incurrence
of any Swingline Loan, to the making of Mandatory Borrowings as set forth in such Section.
(e) Borrowings
to reimburse Unpaid Drawings shall be made upon the notice specified in Section 3.4(a).
(f) Without
in any way limiting the obligation of the Borrower to confirm in writing any notice it shall give hereunder by telephone (which such
obligation is absolute), the Administrative Agent may act prior to receipt of written confirmation without liability upon the basis of
such telephonic notice believed by the Administrative Agent in good faith to be from an Authorized Officer of Holdings or the Borrower.
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2.4 Disbursement
of Funds
(a) No
later than 2:00 p.m. (New York City time) on the date specified in each Notice of Borrowing (including Mandatory Borrowings), each
Lender shall make available its pro rata portion, if any, of each Borrowing requested to be made on such date in the manner provided
below; provided, that all Swingline Loans shall be made available to the Borrower in the full amount thereof by the Swingline
Lender no later than 4:00 p.m. (New York City time).
(b) Each
Lender shall make available all amounts it is to fund to the Borrower under any Borrowing for its applicable Commitments, and in immediately
available funds, to the Administrative Agent at the Administrative Agent’s Office and the Administrative Agent will (except in
the case of Mandatory Borrowings and Borrowings to repay Unpaid Drawings) make available to the Borrower, by depositing to an account
designated by Holdings or the Borrower to the Administrative Agent the aggregate of the amounts so made available in Dollars. Unless
the Administrative Agent shall have been notified by any Lender prior to the date of any such Borrowing that such Lender does not intend
to make available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, the Administrative
Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing, and the Administrative
Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make available to the Borrower
a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender and the
Administrative Agent has made available such amount to the Borrower, the Administrative Agent shall be entitled to recover such corresponding
amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand
therefor the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount
to the Administrative Agent in Dollars. The Administrative Agent shall also be entitled to recover from such Lender or the Borrower interest
on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative
Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if
paid by such Lender, the Overnight Bank Funding Rate or (ii) if paid by the Borrower, the then-applicable rate of interest or fees,
calculated in accordance with Section 2.8, for the respective Loans.
(c) Nothing
in this Section 2.4 shall be deemed to relieve any Lender from its obligation to, fulfill its commitments hereunder or to
prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other Lender to fulfill its commitments hereunder).
2.5 Repayment
of Loans; Evidence of Debt
(a) The
Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, on the Initial Term Loan Maturity Date,
the then-outstanding Initial Term Loans. The Borrower shall repay to the Administrative Agent for the benefit of the Revolving Credit
Lenders, on the Revolving Credit Maturity Date, the then outstanding Revolving Credit Loans. The Borrower shall repay to the Administrative
Agent for the benefit of the Revolving Credit Lenders, on each Extended Revolving Loan Maturity Date, the then outstanding amount of
Extended Revolving Credit Loans. The Borrower shall repay to the Swingline Lender, on the Swingline Maturity Date, the then outstanding
Swingline Loans. The Borrower shall repay to the Administrative Agent for the benefit of the Incremental Revolving Loan Lenders, on each
Incremental Revolving Credit Maturity Date, the then outstanding amount of Incremental Revolving Credit Loans.
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(b) The
Borrower shall repay to the Administrative Agent, in Dollars, for the benefit of the Initial Term Loan Lenders, on each date set forth
below (or, if not a Business Day, the immediately preceding Business Day) (each, an “Initial Term Loan Repayment Date”),
a principal amount in respect of each of the Initial Term Loans made to the Borrower equal to (x) the principal amount of Initial
Term Loans made to the Borrower on the Eleventh Amendment Effective Date multiplied by (y) the percentage set forth below
opposite such Initial Term Loan Repayment Date (each, an “Initial Term Loan Repayment Amount”):
Date
Initial
Term Loan
September 30,
2026
0.25%
December 31,
2026
0.25%
March 31,
2027
0.25%
June 30,
2027
0.25%
September 30,
2027
0.25%
December 31,
2027
0.25%
March 31,
2028
0.25%
June 30,
2028
0.25%
September 30,
2028
0.25%
December 31,
2028
0.25%
March 31,
2029
0.25%
June 30,
2029
0.25%
September 30,
2029
0.25%
December 31,
2029
0.25%
March 31,
2030
0.25%
June 30,
2030
0.25%
September 30,
2030
0.25%
December 31,
2030
0.25%
March 31,
2031
0.25%
June 30,
2031
0.25%
September 30,
2031
0.25%
December 31,
2031
0.25%
March 31,
2032
0.25%
June 30,
2032
0.25%
September 30,
2032
0.25%
December 31,
2032
0.25%
March 31,
2033
0.25%
Initial
Term Loan Maturity Date
Remaining
outstanding amount
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(c) In
the event that any New Term Loans are made, such New Term Loans shall, subject to Section 2.14(d), be repaid by the Borrower
in the amounts (each, a “New Term Loan Repayment Amount”) and on the dates set forth in the applicable Joinder Agreement
and subject to any adjustment to ensure fungibility with the other Term Loans. In the event that any Incremental Revolving Credit Loans
are made, such Incremental Revolving Credit Loans shall, subject to Section 2.14(d), be repaid by the Borrower in the amounts
and on the dates set forth in the applicable Joinder Agreement. In the event that any Extended Term Loans are established, such Extended
Term Loans shall, subject to Section 2.14(g), be repaid by the Borrower in the amounts (each such amount with respect to
any Extended Repayment Date, an “Extended Term Loan Repayment Amount”) and on the dates (each, an “Extended
Repayment Date”) set forth in the applicable Extension Amendment.
(d) Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrower to the
appropriate lending office of such Lender resulting from each Loan made by such lending office of such Lender from time to time, including
the amounts of principal and interest payable and paid to such lending office of such Lender from time to time under this Agreement.
(e) The
Administrative Agent shall maintain the Register pursuant to Section 13.6(b), and a subaccount for each Lender, in which
Register and subaccounts (taken together) shall be recorded (i) the amount of each Loan made hereunder, whether such Loan is an
Initial Term Loan, New Term Loan, Revolving Credit Loan, New Revolving Credit Loan, Additional Revolving Credit Loan, Incremental
Revolving Credit Loan or Swingline Loan, as applicable, the Type of each Loan made, the currency in which it is made, the name of the
Borrower and the Interest Period, if any, applicable thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder, and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender’s share thereof.
(f) The
entries made in the Register and accounts and subaccounts maintained pursuant to clauses (d) and (e) of this
Section 2.5 shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that in the event of any inconsistency between the Register
and any such account or subaccount, the Register shall govern; provided, further, that the failure of any Lender, the Administrative
Agent or the Swingline Lender to maintain such account, such Register or subaccount, as applicable, or any error therein, shall not in
any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in
accordance with the terms of this Agreement.
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(g) The
Borrower hereby agrees that, upon request of any Lender at any time and from time to time after the Borrower has made an initial borrowing
hereunder, the Borrower shall provide to such Lender, at the Borrower’s own expense, a promissory note, substantially in the form
of Exhibit G-1 or Exhibit G-2, as applicable, evidencing the Initial Term Loans, New Term Loans, Revolving Loans
and Swingline Loans, respectively, owing to such Lender. Thereafter, unless otherwise agreed to by the applicable Lender, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 13.6) be
represented by one or more promissory notes in such form payable to the payee named therein (or, if requested by such payee, to such
payee and its registered assigns).
2.6 Conversions
and Continuations
(a) Subject
to the penultimate sentence of this clause (a), (x) the Borrower shall have the option on any Business Day to convert all
or a portion equal to at least the Minimum Borrowing Amount of the outstanding principal amount of Term Loans of one Type or Revolving
Credit Loans of one Type into a Borrowing or Borrowings of another Type and (y) the Borrower shall have the option on any Business
Day to continue the outstanding principal amount of any Term Benchmark Loans as Term Benchmark Loans for an additional Interest Period;
provided that (i) no partial conversion of Term Benchmark Loans shall reduce the outstanding principal amount of Term Benchmark
Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount, (ii) ABR Loans may not be converted into Term
Benchmark Loans if an Event of Default is in existence on the date of the conversion and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion not to permit such conversion, (iii) Term Benchmark Loans may not be continued
as Term Benchmark Loans for an additional Interest Period if an Event of Default is in existence on the date of the proposed continuation
and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuation,
and (iv) Borrowings resulting from conversions pursuant to this Section 2.6 shall be limited in number as provided in
Section 2.2. Each such conversion or continuation shall be effected by the Borrower by giving the Administrative Agent at
the Administrative Agent’s Office prior to 1:00 p.m. (New York City time) at least (i) three Business Days prior, in
the case of a continuation of or conversion to Term Benchmark Loans, or (ii) one Business Day prior in the case of a conversion
into ABR Loans (each, a “Notice of Conversion or Continuation” substantially in the form of Exhibit K)
specifying the Loans to be so converted or continued, the Type of Loans to be converted or continued into and, if such Loans are to be
converted into or continued as Term Benchmark Loans, the Interest Period to be initially applicable thereto. If no Interest Period is
specified in any such notice with respect to any conversion to or continuation as a Term Benchmark Loan, the Borrower shall be deemed
to have selected an Interest Period of one month’s duration. The Administrative Agent shall give each applicable Lender notice
as promptly as practicable of any such proposed conversion or continuation affecting any of its Loans. This Section 2.6(a) shall
not apply to Swingline Loans, which may not be converted or continued.
(b) If
any Event of Default is in existence at the time of any proposed continuation of any Term Benchmark Loans denominated in Dollars and
the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuation,
such Term Benchmark Loans shall be automatically converted on the last day of the current Interest Period into ABR Loans. If upon the
expiration of any Interest Period in respect of Term Benchmark Loans, the Borrower has failed to elect a new Interest Period to be applicable
thereto as provided in clause (a), the Borrower shall be deemed to have elected to convert such Borrowing of Term Benchmark Loans
into a Borrowing of ABR Loans, effective as of the expiration date of such current Interest Period.
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2.7 Pro
Rata Borrowings. Each Borrowing of Revolving Credit Loans under this Agreement shall be made by the Revolving Credit Lenders pro
rata on the basis of their then-applicable Revolving Credit Commitment Percentages. Each Borrowing of New Term Loans under this Agreement
shall be made by the Lenders pro rata on the basis of their then-applicable New Term Loan Commitments. Each Borrowing of Incremental
Revolving Credit Loans under this Agreement shall be made by the Revolving Credit Lenders pro rata on the basis of their then-applicable
Incremental Revolving Credit Commitments. It is understood that (a) no Lender shall be responsible for any default by any other
Lender in its obligation to make Loans hereunder and that each Lender severally but not jointly shall be obligated to make the Loans
provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill its commitments hereunder and (b) other
than as expressly provided herein with respect to a Defaulting Lender, failure by a Lender to perform any of its obligations under any
of the Credit Documents shall not release any Person from performance of its obligation, under any Credit Document.
2.8 Interest
(a) The
unpaid principal amount of each ABR Loan shall bear interest from the date of the Borrowing thereof until maturity (whether by acceleration
or otherwise) at a rate per annum that shall at all times be the Applicable Margin for ABR Loans plus the ABR, in each case, in
effect from time to time.
(b) The
unpaid principal amount of each Term Benchmark Loan shall bear interest from the date of the Borrowing thereof until maturity thereof
(whether by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable Margin for Term Benchmark Loans
plus the Term SOFR Rate.
(c) If
an Event of Default has occurred and is continuing under Section 11.1 or Section 11.5 hereto, if all or a portion
of (i) the principal amount of any Loan or (ii) any interest payable thereon or any other amount payable hereunder shall not
be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per
annum that is (the “Default Rate”) (x) in the case of overdue principal, the rate that would otherwise be applicable
thereto plus 2.00% per annum or (y) in the case of any other overdue amount, including overdue interest, to the extent permitted
by applicable law, the rate described in Section 2.8(a) for the applicable Class plus 2.00% per annum from
the date of such non-payment to the date on which such amount is paid in full (after as well as before judgment).
(d) Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall
be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid
or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Term Benchmark
Revolving Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
(e) All
computations of interest hereunder shall be made in accordance with Section 5.5.
2.9 Interest
Periods. At the time the Borrower gives a Notice of Borrowing or Notice of Conversion or Continuation in respect of the making of,
or conversion into or continuation as, a Borrowing of Term Benchmark Loans in accordance with Section 2.6(a), the Borrower
shall give the Administrative Agent written notice of the interest period (each, an “Interest Period”) applicable
to such Borrowing, which Interest Period shall, at the option of the Borrower be a one, three or six month period.
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Notwithstanding anything
to the contrary contained above:
(a) (i) the
initial Interest Period for any Borrowing of Term Benchmark Loans shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of ABR Loans) and each Interest Period occurring thereafter in respect of such Borrowing shall commence
on the day on which the next preceding Interest Period expires and (ii) the initial Interest Period for the Borrowing of the Initial
Term Loans on the Eleventh Amendment Effective Date shall commence on the Eleventh Amendment Effective Date and end on July 31,
2026;
(b) if
any Interest Period relating to a Borrowing of Term Benchmark Loans begins on the last Business Day of a calendar month or begins on
a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of the calendar month at the end of such Interest Period;
(c) if
any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding
Business Day; provided that if any Interest Period in respect of a Term Benchmark Loan would otherwise expire on a day that is
not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire
on the immediately preceding Business Day; and
(d) the
Borrower shall not be entitled to elect any Interest Period in respect of any Term Benchmark Loan if such Interest Period would extend
beyond the Maturity Date of such Loan.
2.10 Increased
Costs, Illegality, Etc. (a) Subject to clauses (b) and (c) of this Section 2.10, if:
(i) the
Administrative Agent determines (which determination shall be conclusive absent manifest error) (A) prior to the commencement of
any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Term SOFR Rate
(including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period or (B) at
any time, that adequate and reasonable means do not exist for ascertaining the applicable Daily Simple SOFR; or
(ii) the
Administrative Agent is advised by the Required Lenders that (A) prior to the commencement of any Interest Period for a Term Benchmark
Borrowing, the Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period or (B) at any time, Daily Simple
SOFR will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included
in such Borrowing;
then the Administrative Agent shall
give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and,
until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Notice of Conversion or Continuation in accordance
with the terms of Section 2.6 or a new Notice of Borrowing in accordance with the terms of Section 2.3, any Notice
of Conversion or Continuation that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing
as, a Term Benchmark Borrowing and any Notice of Borrowing that requests a Term Benchmark Revolving Borrowing shall instead be deemed
to be a Notice of Conversion or Continuation or a Notice of Borrowing, as applicable, for an ABR Borrowing; provided that if
the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted.
Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative
Agent referred to in this Section 2.10(a) with respect to the Term SOFR Loan, then until (x) the Administrative
Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant
Benchmark and (y) the Borrower delivers a new Notice of Conversion or Continuation in accordance with the terms of Section 2.6
or a new Notice of Borrowing in accordance with the terms of Section 2.3, any Term Benchmark Loan shall on the last day of the Interest
Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative
Agent to, and shall constitute, an ABR Loan.
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(iii) Notwithstanding
anything to the contrary herein or in any other Credit Document, if a Benchmark Transition Event and its related Benchmark Replacement
Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark
Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark
Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in
respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other
party to, this Agreement or any other Credit Document and (y) if a Benchmark Replacement is determined in accordance with clause
(2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will
replace such Benchmark for all purposes hereunder and under any Credit Document in respect of any Benchmark setting at or after 5:00
p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the
Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document so
long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders
comprising the Required Lenders of each affected Class.
(iv) Notwithstanding
anything to the contrary herein or in any other Credit Document, the Administrative Agent will have the right to make Benchmark Replacement
Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit 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 Credit Document.
(v) The
Administrative Agent will promptly notify the Borrower and the Lenders of (A) any occurrence of a Benchmark Transition Event, (B) the
implementation of any Benchmark Replacement, (C) the effectiveness of any Benchmark Replacement Conforming Changes, (D) the
removal or reinstatement of any tenor of a Benchmark pursuant to clause (vi) below and (E) the commencement or conclusion
of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable,
any Lender (or group of Lenders) pursuant to this Section 2.10, 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 Credit Document, except, in each case, as expressly required pursuant to this Section 2.10.
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(vi) Notwithstanding
anything to the contrary herein or in any other Credit 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 Rate) and either (x) any tenor for
such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the
Administrative Agent in its reasonable discretion or (y) the regulatory supervisor for the administrator of such Benchmark has provided
a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative,
then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such
time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A) above
either (x) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (y) is
not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark
Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at
or after such time to reinstate such previously removed tenor.
(vii) Upon
the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request
for a Term Benchmark Borrowing or RFR Borrowing of, conversion to or continuation of Term Benchmark Loans to be made, converted or continued
during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a Term Benchmark
Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as the Daily Simple SOFR is not the subject
of a Benchmark Transition Event or (B) an ABR Borrowing if the Daily Simple SOFR is the subject of a Benchmark Transition Event.
During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the
component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination
of ABR. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of notice of the
commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan,
then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.10, any Term Benchmark Loan shall
on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day),
be converted by the Administrative Agent to, and shall constitute, an ABR Loan.
(b) If,
after the Closing Date, any Change in Law relating to capital adequacy or liquidity of any Lender or compliance by any Lender or its
parent with any Change in Law relating to capital adequacy or liquidity occurring after the Closing Date, has or would have the effect
of reducing the actual rate of return on such Lender’s or its parent’s or its Affiliate’s capital or assets as a consequence
of such Lender’s commitments or obligations hereunder to a level below that which such Lender or its parent or its Affiliate could
have achieved but for such Change in Law (taking into consideration such Lender’s or its parent’s policies with respect to
capital adequacy or liquidity), then from time to time, promptly after written demand by such Lender (with a copy to the Administrative
Agent), the Borrower shall pay to such Lender such actual additional amount or amounts as will compensate such Lender or its parent for
such actual reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result
of such Lender’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in
effect on the Closing Date or to the extent such Lender is not imposing such charges on, or requesting such compensation from, borrowers
(similarly situated to the Borrower hereunder) under comparable syndicated credit facilities similar to the Credit Facilities. Each Lender,
upon determining in good faith that any additional amounts will be payable pursuant to this Section 2.10(b), will give prompt
written notice thereof to the Borrower, which notice shall set forth in reasonable detail the basis of the calculation of such additional
amounts, although the failure to give any such notice shall not, subject to Section 2.13, release or diminish the Borrower’s
obligations to pay additional amounts pursuant to this Section 2.10(b) promptly following receipt of such notice.
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(c) If
the Administrative Agent shall have received notice from the Required Lenders that the Term SOFR Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as certified by such Lenders) of making or
maintaining its affected Term Benchmark Loans during such Interest Period, the Administrative Agent shall give telecopy or telephonic
notice thereof to the Borrower and the Lenders as soon as practicable thereafter (which notice shall include supporting calculations
in reasonable detail). If such notice is given, (i) any Term Benchmark Loan requested to be made on the first day of such Interest
Period shall be made an ABR Loan, (ii) any Loans that were to have been converted on the first day of such Interest Period to Term
Benchmark Loans shall be continued as an ABR Loan and (iii) any outstanding Term Benchmark Loans shall be converted, on the first
day of such Interest Period, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent, no further Term Benchmark
Loans shall be made or continued as such, nor shall the Borrower have the right to convert ABR Loans to Term Benchmark Loans.
2.11 Compensation.
If (a) any payment of principal of any Term Benchmark Loan is made by the Borrower to or for the account of a Lender other than
on the last day of the Interest Period for such Term Benchmark Loan as a result of a payment or conversion pursuant to Sections 2.5,
2.6, 2.10, 5.1, 5.2 or 13.7, as a result of acceleration of the maturity of the Loans pursuant to
Section 11 or for any other reason, (b) any Borrowing of Term Benchmark Loans is not made as a result of a withdrawn
Notice of Borrowing or a failure to satisfy borrowing conditions, (c) any ABR Loan is not converted into a Term Benchmark Loan as
a result of a withdrawn Notice of Conversion or Continuation, (d) any Term Benchmark Loan is not continued as a Term Benchmark Loan,
as the case may be, as a result of a withdrawn Notice of Conversion or Continuation or (e) any prepayment of principal of any Term
Benchmark Loan is not made as a result of a withdrawn notice of prepayment pursuant to Sections 5.1 or 5.2, the Borrower
shall, after receipt of a written request by such Lender (which request shall set forth in reasonable detail the basis for requesting
such amount), promptly pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender
for any additional losses, costs or expenses that such Lender may reasonably incur as a result of such payment, failure to convert, failure
to continue or failure to prepay, including any loss, cost or expense (excluding loss of anticipated profits) actually incurred to fund
or maintain such Term Benchmark Loan. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender
as specified in this Section 2.11 and setting forth in reasonable detail the manner in which such amount or amounts were
determined shall be delivered to the Borrower and shall be conclusive, absent manifest error; provided that no such certificate
need disclose any information that is confidential or legally restricted. The obligations of the Borrower under this Section 2.11
shall survive the payment in full of the Loans and the termination of this Agreement.
2.12 Change
of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Sections 2.10(a)(ii),
2.10(a)(iii), 2.10(b), 3.5 or 5.4 with respect to such Lender, it will, if requested by the Borrower use
reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected
by such event; provided that such designation is made on such terms that such Lender and its lending office suffer no unreimbursed
cost or other material economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise
to the operation of any such Section. Nothing in this Section 2.12 shall affect or postpone any of the obligations of the
Borrower or the right of any Lender provided in Sections 2.10, 3.5 or 5.4.
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2.13 Notice
of Certain Costs. Notwithstanding anything in this Agreement to the contrary, to the extent any notice required by Sections 2.10,
2.11, or 3.5 is given by any Lender more than 120 days after such Lender has knowledge (or should have had knowledge) of
the occurrence of the event giving rise to the additional cost, reduction in amounts, loss, or other additional amounts described in
such Sections, such Lender shall not be entitled to compensation under Sections 2.10, 2.11, or 3.5, as the case
may be, for any such amounts incurred or accruing prior to the 121st day prior to the giving of such notice to the Borrower.
2.14 Incremental
Facilities.
(a) The
Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches
of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”),
(y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or
(z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together
with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term
Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not
in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount
as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities
Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased
Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective. In connection with the incurrence
of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrower shall provide to the
Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount,
which certificate shall be in reasonable detail and shall provide the calculations and basis therefor and, subject to reclassification
as set forth in Section 10.1, classify such Indebtedness as being incurred under clause (i) or clause (ii) of
the definition of Maximum Incremental Facilities Amount. The Borrower may approach any Lender or any Person (other than a natural Person)
to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion
of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan
Commitments shall become effective as of the applicable Increased Amount Date (subject to Section 1.12); provided
that (i) no Event of Default (except in connection with an acquisition or investment, no Event of Default under Section 11.1
or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as
applicable, and subject to Section 1.12, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder
Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall
be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrower shall make any payments required
pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. No Lender shall have any obligation
to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date shall, at
the election of the Borrower and agreed to by the Lenders providing such New Loan Commitments, be designated as (a) a separate series
(a “Series”) of New Term Loans for all purposes of this Agreement or (b) part of a Series of existing Term
Loans. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional
Revolving Credit Loans for all purposes of this Agreement.
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(b) On
any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing
terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments
of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”)
and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at
the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary
in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held
by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of
such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and
(b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed
for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving
Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit
Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed,
for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit
Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental
Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating
thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not
to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental
Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment
of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender.
(c) On
any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the
foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”)
of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving
Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each
New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and
the New Term Loans of such Series made pursuant thereto.
(d) The
terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth
in the Joinder Agreement as determined by the Borrower; provided that (i) the applicable New Term Loan Maturity Date of each
Series shall be no earlier than the Initial Term Loan Maturity Date; (ii) the weighted average life to maturity of all New
Term Loans shall be no shorter than the weighted average life to maturity of the then existing Initial Term Loans as calculated without
giving effect to any prepayments made in connection with the Initial Term Loans; provided that clauses (i) and (ii) shall not
apply to up to the greater of (x) $151,500,000 and (y) 50% of Consolidated EBITDA for the most recently ended Test Period of
New Term Loans as elected by the Borrower (the “Maturity Carveout Amount”); (iii) the pricing, interest rate
margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) amortization schedule applicable to any
New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that solely in the case of New Term Loans
incurred prior to the 24 month anniversary of the Eleventh Amendment Effective Date, if the Effective Yield for Term Benchmark Loans
or ABR Loans in respect of such New Term Loans consisting of Term Loans that are secured by the Collateral on a pari passu basis
with the Initial Term Loans exceeds the Effective Yield for Term Benchmark Loans or ABR Loans in respect of the then existing Initial
Term Loans by more than 0.50%, the Applicable Margin for Term Benchmark Loans or ABR Loans in respect of the then existing Initial Term
Loans is equal to the Effective Yield for Term Benchmark Loans or ABR Loans in respect of the New Term Loans minus 0.50% (the
terms of this proviso to this clause (iii), the “MFN Protection”); provided further that the MFN Protection
shall not apply to (i) up to the greater of (x) $151,500,000 million and (y) 50% of Consolidated EBITDA for the most recently
ended Test Period of New Term Loans as elected by the Borrower of New Term Loans or Permitted Other Indebtedness (as selected by the
Borrower), (ii) any New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment, (iii) any
New Term Loans incurred pursuant to clause (i) of the definition of Maximum Incremental Facilities Amount and (iv) any
New Term Loan which mature later than the date that is one year after the Initial Term Loan Maturity Date; and (iv) to the extent
such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause
(i), (ii) or (iii) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood
that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall
be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of
any corresponding Term Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall
be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest
Term Loan Maturity Date).
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(e) Incremental
Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Initial Revolving Credit Commitments and
the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided
that notwithstanding anything to the contrary in this Section 2.14 or otherwise:
(i) any
such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment
and of security with the Revolving Credit Loans and the Term Loans,
(ii) any
such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving
Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments,
(iii) the
borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments
(and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and
(3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below))
of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata
basis with all other Revolving Credit Commitments on such Increased Amount Date,
(iv) subject
to the provisions of Section 2.1(e) and Sections 3.12 to the extent dealing with Swingline Loans and Letters
of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity
date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments
of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date
(and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on
an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series),
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(v) the
permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after
the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased
Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better
than a pro rata basis as compared to any other Class with a later maturity date than such Class,
(vi) assignments
and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment
and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount
Date,
(vii) any
Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the
Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date,
(viii) the
pricing, fees, maturity and other immaterial terms of the Additional Revolving Credit Loans may be different and shall be determined
by the Borrower and the Lenders thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving
Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may
be, the maturity date or the weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving
Credit Loans, and
(ix) to
the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by
the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding
Loans remaining outstanding after the issuance or incurrence of such Indebtedness.
(f) Each
Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and
the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of
this Section 2.14.
(g) (i) The
Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing
Term Loan Class”) be converted 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 converted, “Extended Term Loans”)
and to provide for other terms consistent with this Section 2.14(g). In order to establish any Extended Term Loans, the Borrower
shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable
Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”)
setting forth the proposed terms of the Extended Term Loans to be established, which shall not be materially more restrictive to the
Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing
Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit
of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted
Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all
or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled
amortization 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 Section 2.5 or in the Joinder Agreement, as the case may be, with respect to
the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in
paragraph (iv) of this Section 2.14(g) below), (y) (A) the interest margins with respect to the Extended Term
Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional
fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased
margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment and
to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness,
no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the
benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other
Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Section 2.14
or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which
they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). 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 Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from
the Existing Term Loan Class from which they were converted.
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(ii) The
Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended
Revolving Credit Commitments and/or any Incremental Revolving Credit Commitments, each existing at the time of such request (each, an
“Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving
Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred
to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled
maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing
Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving
Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms
consistent with this Section 2.14(g). In order to establish any Extended Revolving Credit Commitments, the Borrower shall
provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of
Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms
of the Extended Revolving Credit Commitments to be established, which shall not be materially more restrictive to the Credit Parties
(as determined in good faith by the Borrower), when taken as a whole, than the terms of the applicable Existing Revolving Credit Commitments
(the “Specified Existing Revolving Credit Commitment”) unless (x) the Lenders providing Existing Revolving Credit
Loans receive the benefit of such more restrictive terms or (y) any such provisions apply after the Revolving Credit Termination
Date, in each case, to the extent provided in the applicable Extension Amendment; provided, however, that (w) all
or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity
dates of the Specified Existing Revolving Credit Commitments, (x) (A) the interest margins with respect to the Extended Revolving
Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional
fees and premiums may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any
increased margins contemplated by the preceding clause (A) and (y) the Revolving Credit Commitment Fee Rate with respect
to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing
Revolving Credit Commitment; provided that, notwithstanding anything to the contrary in this Section 2.14(g) or
otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments)
of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving
Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit
Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving
Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have
any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended
Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments
of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving
Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments
so established on such date).
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(iii) Any
Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, Incremental
Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension
Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent
(an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans,
Revolving Credit Commitments, Incremental Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or
Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit
Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, Incremental Revolving
Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections
exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension
Request, Term Loans or Revolving Credit Commitments, Incremental Revolving Credit Commitments or Extended Revolving Credit Commitments
of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving
Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, Incremental
Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion
of any Existing Revolving Credit Commitment into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall
be treated identically to all other Original Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender
in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Section 3, except that the
applicable Extension Amendment may provide that the Swingline Maturity Date and/or the L/C Facility Maturity Date may be extended and
the related obligations to make Swingline Loans and issue Letters of Credit may be continued so long as the Swingline Lender and/or the
Letter of Credit Issuer, as applicable, have consented to such extensions in their sole discretion (it being understood that no consent
of any other Lender shall be required in connection with any such extension).
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(iv) Extended
Term Loans or Extended Revolving Credit Commitments, as applicable, shall be established pursuant to an amendment (an “Extension
Amendment”) to this Agreement (which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.14(g)(iv) and
notwithstanding anything to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than
the Extending Lenders with respect to the Extended Term Loans or Extended Revolving Credit Commitments, as applicable, established thereby)
executed by the Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche
of Extended Term Loans or Extended Revolving Credit Commitments in an aggregate principal amount that is less than $10,000,000. In addition
to any terms and changes required or permitted by Section 2.14(g)(i), each Extension Amendment (x) shall amend the scheduled
amortization payments pursuant Section 2.5 or the applicable Joinder Agreement with respect to the Existing Term Loan Class from
which the Extended Term Loans were converted 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 converted 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) and (y) may, but shall not be required to,
impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such time) with respect to the final
maturity and weighted average life to maturity of New Term Loans incurred following the date of such Extension Amendment. Notwithstanding
anything to the contrary in this Section 2.14(g) and without limiting the generality or applicability of Section 13.1
to any Section 2.14 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments
other than those referred to or contemplated above (any such additional amendment, a “Section 2.14 Additional Amendment”)
to this Agreement and the other Credit Documents; provided that such Section 2.14 Additional Amendments are within the requirements
of Section 2.14(g)(i) and do not become effective prior to the time that such Section 2.14 Additional Amendments
have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Term Loans and New
Revolving Credit Commitments provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Term Loans
or Extended Revolving Credit Commitments provided for in any Extension Amendment) by such of the Lenders, Credit Parties and other parties
(if any) as may be required in order for such Section 2.14 Additional Amendments to become effective in accordance with Section 13.1.
(v) Notwithstanding
anything to the contrary contained in this Agreement, (A) on any date on which any Existing Class is converted to extend the
related scheduled maturity date(s) in accordance with clauses (i) and/or (ii) above (an “Extension
Date”), (I) in the case of the existing Term Loans of each Extending Lender, the aggregate principal amount of such existing
Term Loans shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Term Loans so converted by such Lender
on such date, and the Extended Term Loans shall be established as a separate Class of Term Loans (together with any other Extended
Term Loans so established on such date), and (II) in the case of the Specified Existing Revolving Credit Commitments of each Extending
Lender, the aggregate principal amount of such Specified Existing Revolving Credit Commitments shall be deemed reduced by an amount equal
to the aggregate principal amount of Extended Revolving Credit Commitments so converted by such Lender on such date, and such Extended
Revolving Credit Commitments shall be established as a separate Class of revolving credit commitments from the Specified Existing
Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit
Commitments so established on such date) and (B) if, on any Extension Date, any Loans of any Extending Lender are outstanding under
the applicable Specified Existing Revolving Credit Commitments, such Loans (and any related participations) shall be deemed to be allocated
as Extended Revolving Credit Loans (and related participations) and Existing Revolving Credit Loans (and related participations) in the
same proportion as such Extending Lender’s Specified Existing Revolving Credit Commitments to Extended Revolving Credit Commitments.
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(vi) The
Administrative Agent and the Lenders (other than the Swingline Lender to the extent such consent is expressly required by this Section 2.14)
hereby consent to the consummation of the transactions contemplated by this Section 2.14 (including, for the avoidance of
doubt, payment of any interest, fees, or premium in respect of any Extended Term Loans and/or Extended Revolving Credit Commitments on
such terms as may be set forth in the relevant Extension Amendment) and hereby waive the requirements of any provision of this Agreement
(including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or
restrict any such extension or any other transaction contemplated by this Section 2.14.
2.15 Permitted
Debt Exchanges.
(a) Notwithstanding
anything to the contrary contained in this Agreement, pursuant to one or more offers (each, a “Permitted Debt Exchange Offer”)
made from time to time by the Borrower, the Borrower may from time to time following the Closing Date consummate one or more exchanges
of Term Loans for Permitted Other Indebtedness in the form of notes (such notes, “Permitted Debt Exchange Notes,”
and each such exchange a “Permitted Debt Exchange”), so long as the following conditions are satisfied: (i) no
Event of Default shall have occurred and be continuing at the time the final offering document in respect of a Permitted Debt Exchange
Offer is delivered to the relevant Lenders, (ii) the aggregate principal amount (calculated on the face amount thereof) of Term
Loans exchanged shall equal no more than the aggregate principal amount (calculated on the face amount thereof) of Permitted Debt Exchange
Notes issued in exchange for such Term Loans; provided that the aggregate principal amount of the Permitted Debt Exchange Notes
may include accrued interest and premium (if any) under the Term Loans exchanged and underwriting discounts, fees, commissions and expenses
in connection with the issuance of such Permitted Debt Exchange Notes, (iii) the aggregate principal amount (calculated on the face
amount thereof) of all Term Loans exchanged under each applicable Class by the Borrower pursuant to any Permitted Debt Exchange
shall automatically be cancelled and retired by the Borrower on the date of the settlement thereof (and, if requested by the Administrative
Agent, any applicable exchanging Lender shall execute and deliver to the Administrative Agent an Assignment and Acceptance, or such other
form as may be reasonably requested by the Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its
interest in the Term Loans being exchanged pursuant to the Permitted Debt Exchange to the Borrower for immediate cancellation), (iv) if
the aggregate principal amount of all Term Loans of a given Class (calculated on the face amount thereof) tendered by Lenders in
respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which
exceeds the principal amount thereof of the applicable Class actually held by it) shall exceed the maximum aggregate principal amount
of Term Loans of such Class offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower
shall exchange Term Loans subject to such Permitted Debt Exchange Offer tendered by such Lenders ratably up to such maximum amount based
on the respective principal amounts so tendered, (v) all documentation in respect of such Permitted Debt Exchange shall be consistent
with the foregoing, and all written communications generally directed to the Lenders in connection therewith shall be in form and substance
consistent with the foregoing and made in consultation with the Borrower and the Auction Agent, and (vi) any applicable Minimum
Tender Condition shall be satisfied.
(b) With
respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this Section 2.15, (i) such Permitted Debt
Exchanges (and the cancellation of the exchanged Term Loans in connection therewith) shall not constitute voluntary or mandatory payments
or prepayments for purposes of Section 5.1 or 5.2, and (ii) such Permitted Debt Exchange Offer shall be made
for not less than $10,000,000 in aggregate principal amount of Term Loans; provided that subject to the foregoing clause (ii) the
Borrower may at its election specify as a condition (a “Minimum Tender Condition”) to consummating any such Permitted
Debt Exchange that a minimum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in the Borrower’s
discretion) of Term Loans of any or all applicable Classes be tendered.
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(c) In
connection with each Permitted Debt Exchange, the Borrower and the Auction Agent shall mutually agree to such procedures as may be necessary
or advisable to accomplish the purposes of this Section 2.15 and without conflict with Section 2.15(d); provided
that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant Lenders are required to indicate
their election to participate in such Permitted Debt Exchange shall be not less than a reasonable period (in the discretion of the Borrower
and the Auction Agent) of time following the date on which the Permitted Debt Exchange Offer is made.
(d) The
Borrower shall be responsible for compliance with, and hereby agrees to comply with, all applicable securities and other laws in connection
with each Permitted Debt Exchange, it being understood and agreed that (x) none of the Auction Agent, the Administrative Agent nor
any Lender assumes any responsibility in connection with the Borrower’s compliance with such laws in connection with any Permitted
Debt Exchange and (y) each Lender shall be solely responsible for its compliance with any applicable “insider trading”
laws and regulations to which such Lender may be subject under the Securities Exchange Act.
2.16 Defaulting
Lenders.
(a) Adjustments.
Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time
as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Requirements of Law:
(i) Waivers
and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect
to this Agreement shall be restricted as set forth in the definition of Required Lenders and Section 13.1.
(ii) Defaulting
Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account
of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise) or received
by the Administrative Agent from a Defaulting Lender pursuant to Section 13.8 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 such Defaulting Lender to
the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender
to the Letter of Credit Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Letter of Credit Issuer’s
Fronting Exposure with respect to such Defaulting Lender in accordance with Section 3.8; fourth, as the Borrower may
request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its
portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative
Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s
potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Letter of Credit
Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under
this Agreement, in accordance with Section 3.8; sixth, to the payment of any amounts owing to the Borrower, the Lenders,
the Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by the Borrower,
any Lender, the Letter of Credit Issuer or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s
breach of its obligations under this Agreement; and seventh, to such Defaulting Lender or as otherwise directed by a court of
competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings
in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related
Letters of Credit were issued at a time when the conditions set forth in Section 7 were satisfied or waived, such payment
shall be applied solely to pay the Loans of, and L/C Obligations 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 Obligations owed to, such Defaulting Lender until such time as all Loans and funded and
unfunded participations in L/C Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments hereunder
without giving effect to Section 2.16(a)(iv). 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 2.16(a)(ii) shall
be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
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(iii) Certain
Fees.
(A) No
Defaulting Lender shall be entitled to receive any fee payable under Section 4
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).
(B) Each
Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during
which that Lender is a Defaulting Lender only to the extent allocable to its Revolving Credit
Commitment Percentage of the stated amount of Letters of Credit for which it has provided
Cash Collateral pursuant to Section 3.8.
(C) With
respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant
to clause (A) or (B) above, the Borrower shall (x) pay to each
Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender
with respect to such Defaulting Lender’s participation in L/C Obligations that has
been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below,
(y) pay to the Letter of Credit Issuer the amount of any such fee otherwise payable
to such Defaulting Lender to the extent allocable to such Letter of Credit’s Fronting
Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount
of any such fee.
(iv) Reallocation
of Revolving Credit Commitment Percentage to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation
in L/C Obligations and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving
Credit Commitment Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such
reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s
Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting
Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such
Non-Defaulting Lender’s increased exposure following such reallocation.
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(v) Cash
Collateral, Repayment of Swingline Loans. If the reallocation described in clause (a)(iv) above cannot, or
can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to them hereunder or under applicable
law, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lenders’ Fronting Exposure and (y) second,
Cash Collateralize the Letter of Credit Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 3.8.
(b) Defaulting
Lender Cure. If the Borrower, the Administrative Agent, the Swingline Lender, and the Letter of Credit Issuer agree in writing
that a Lender is no longer 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 at par that portion of outstanding Loans of the other Lenders or take
such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Loans and funded and unfunded
participations in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Lenders in accordance with their Revolving
Credit Commitment Percentages (without giving effect to Section 2.16(a)(iv)), whereupon such Lender will cease to be a Defaulting
Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf
of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly
agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Section 3.
Letters of Credit
3.1 Letters
of Credit.
(a) Subject
to and upon the terms and conditions set forth herein, at any time and from time to time after the Closing Date and prior to the L/C
Facility Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth
in this Section 3, to issue from time to time from the Closing Date through the L/C Facility Maturity Date for the account of the
Borrower (or, so long as the Borrower is the primary obligor, for the account of Holdings or any Restricted Subsidiary (other than the
Borrower)) letters of credit (the “Letters of Credit” and each, a “Letter of Credit”), which Letters
of Credit shall not at any time exceed (i) without the consent of the applicable Letter of Credit Issuer, a Letter of Credit Issuer’s
Letter of Credit Commitment or (ii) the L/C Sublimit in such form as may be approved by the Letter of Credit Issuer in its reasonable
discretion.
(b) Notwithstanding
the foregoing, (i) without the consent of the applicable Letter of Credit Issuer, no Letter of Credit shall be issued the Stated
Amount of which, when added to the Letters of Credit Outstanding of such Letter of Credit Issuer at such time, would exceed the Letter
of Credit Commitment of such Letter of Credit Issuer then in effect; (ii) no Letter of Credit shall be issued the Stated Amount
of which, when added to the Letters of Credit Outstanding at such time, would exceed the L/C Sublimit then in effect; (iii) no Letter
of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures
at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iv) each Letter of Credit shall
have an expiration date occurring no later than one year after the date of issuance thereof (except as set forth in Section 3.2(d)),
provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise
agreed upon by the Administrative Agent, the Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized,
the Revolving Credit Lenders; (v) the Letter of Credit shall be denominated in Dollars; (vi) no Letter of Credit shall be issued
if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its
favor; and (vii) no Letter of Credit shall be issued by the Letter of Credit Issuer after it has received a written notice from
any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has
occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission
of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default
in accordance with the provisions of Section 13.1.
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(c) Upon
at least two Business Days’ prior written notice to the Administrative Agent and the Letter of Credit Issuer (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, on any day, permanently to terminate
or reduce the Letter of Credit Commitment in whole or in part; provided that, after giving effect to such termination or reduction,
the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) The
parties hereto agree that the Existing Letters of Credit shall be deemed to be Letters of Credit for all purposes under this Agreement,
without any further action by the Borrower, the Letter of Credit Issuer or any other Person.
(e) The
Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any
order, judgment or decree of any Governmental Authority or arbitrator shall by its terms enjoin or restrain the Letter of Credit Issuer
from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request
that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or
shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (in
each case, for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which
the Letter of Credit Issuer in good faith deems material to it;
(ii) the
issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except
as otherwise agreed by the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $50,000, in the case
of a commercial Letter of Credit, or $10,000, in the case of a standby Letter of Credit;
(iv) such
Letter of Credit is denominated in a currency other than Dollars;
(v) such
Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vi) a
default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender
is at such time a Defaulting Lender hereunder, unless, in each case, the Borrower have entered into arrangements reasonably satisfactory
to the Letter of Credit Issuer to eliminate such Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender or
such risk has been reallocated in accordance with Section 2.16.
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(f) The
Letter of Credit Issuer shall not increase the Stated Amount of any Letter of Credit if the Letter of Credit Issuer would not be permitted
at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The
Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have
no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of
such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The
Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the
Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit
as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with
respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
3.2 Letter
of Credit Requests.
(a) Whenever
the Borrower desires that a Letter of Credit be issued for its account or amended, the Borrower shall give the Administrative Agent and
the Letter of Credit Issuer a Letter of Credit Request by no later than 1:00 p.m. (New York City time) at least three Business Days
(or such other period as may be agreed upon by the Borrower, the Administrative Agent and the Letter of Credit Issuer) prior to the proposed
date of issuance or amendment. Each Letter of Credit Request shall be executed by the Borrower. Such Letter of Credit Request may be
sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the Letter of
Credit Issuer, by personal delivery or by any other means acceptable to the Letter of Credit Issuer.
(b) In
the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Request shall specify in form and detail reasonably
satisfactory to the Letter of Credit Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the Stated Amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary
thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the identity of the applicant; and (H) such
other matters as the Letter of Credit Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter
of Credit, such Letter of Credit Request shall specify in form and detail reasonably satisfactory to the Letter of Credit Issuer (I) the
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 Letter of Credit Issuer may reasonably require. Additionally, the
Borrower shall furnish to the Letter of Credit Issuer and the Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the Letter of Credit Issuer or the Administrative
Agent may reasonably require.
(c) Unless
the Letter of Credit Issuer has received written notice from any Revolving Credit Lender, the Administrative Agent or any Credit Party,
at least one Business Day prior to the requested date of issuance or amendment of the Letter of Credit, that one or more applicable conditions
contained in Sections 6 (solely with respect to any Letter of Credit issued on the Closing Date) and 7 shall not then be
satisfied to the extent required thereby, then, subject to the terms and conditions hereof, the Letter of Credit Issuer shall, on the
requested date, issue a Letter of Credit for the account of the Borrower (or, so long as the Borrower is the primary obligor, for the
account of Holdings or another Restricted Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance
with the applicable Letter of Credit Issuer’s usual and customary business practices.
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(d) If
the Borrower so requests in any Letter of Credit Request, the Letter of Credit Issuer shall agree to issue a Letter of Credit that has
automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension
Letter of Credit must permit the Letter of Credit Issuer to prevent any such extension at least once in each twelve-month period (commencing
with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof and the Borrower not later than
a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter
of Credit is issued. Unless otherwise directed by the Letter of Credit Issuer, the Borrower shall not be required to make a specific
request to the Letter of Credit Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall
be deemed to have authorized (but may not require) the Letter of Credit Issuer to permit the extension of such Letter of Credit at any
time to an expiry date not later than the L/C Facility Maturity Date, unless otherwise agreed upon by the Administrative Agent and the
Letter of Credit Issuer; provided, however, that the Letter of Credit Issuer shall not permit any such extension if (A) the
Letter of Credit Issuer has reasonably determined that it would not be permitted, or would have no obligation, at such time to issue
such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (b) of
Section 3.1 or otherwise), or (B) it has received written notice on or before the day that is seven Business Days before
the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions
specified in Sections 6 and 7 are not then satisfied, and in each such case directing the Letter of Credit Issuer not to
permit such extension.
(e) Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of Credit (including any Existing Letter of Credit) to an advising
bank with respect thereto or to the beneficiary thereof, the Letter of Credit Issuer will also deliver to the Borrower and the Administrative
Agent a true and complete copy of such Letter of Credit or amendment. On the first Business Day of each month, the Letter of Credit Issuer
shall provide the Administrative Agent a list of all Letters of Credit (including any Existing Letter of Credit) issued by it that are
outstanding at such time.
(f) The
making of each Letter of Credit Request shall be deemed to be a representation and warranty by the Borrower that the Letter of Credit
may be issued in accordance with, and will not violate the requirements of, Section 3.1(b).
3.3 Letter
of Credit Participations.
(a) Immediately
upon the issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold and
transferred to each Revolving Credit Lender (each such Revolving Credit Lender, in its capacity under this Section 3.3, an
“L/C Participant”), and each such L/C Participant shall be deemed irrevocably and unconditionally to have purchased
and received from the Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each an “L/C
Participation”), to the extent of such L/C Participant’s Revolving Credit Commitment Percentage in each Letter of Credit,
each substitute therefor, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto,
and any security therefor or guaranty pertaining thereto; provided that the Letter of Credit Fees will be paid directly to the
Administrative Agent for the ratable account of the L/C Participants as provided in Section 4.1(b) and the L/C Participants
shall have no right to receive any portion of any Fronting Fees.
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(b) In
determining whether to pay under any Letter of Credit, the relevant Letter of Credit Issuer shall have no obligation relative to the
L/C Participants other than to confirm that any documents required to be delivered under such Letter of Credit have been delivered and
that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by the
relevant Letter of Credit Issuer under or in connection with any Letter of Credit issued by it, if taken or omitted in the absence of
gross negligence or willful misconduct as determined in the final non-appealable judgment of a court of competent jurisdiction, shall
not create for the Letter of Credit Issuer any resulting liability.
(c) In
the event that the Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the applicable Borrower shall
not have repaid such amount in full to the respective Letter of Credit Issuer through the Administrative Agent pursuant to Section 3.4(a),
the Administrative Agent shall promptly notify each L/C Participant of such failure, and each L/C Participant shall promptly and unconditionally
pay to the Administrative Agent for the account of the Letter of Credit Issuer, the amount of such L/C Participant’s Revolving
Credit Commitment Percentage of such unreimbursed payment in Dollars and in immediately available funds. If and to the extent such L/C
Participant shall not have so made its Revolving Credit Commitment Percentage of the amount of such payment available to the Administrative
Agent for the account of the Letter of Credit Issuer, such L/C Participant agrees to pay to the Administrative Agent for the account
of the Letter of Credit Issuer, forthwith on demand, such amount, together with interest thereon for each day from such date until the
date such amount is paid to the Administrative Agent for the account of the Letter of Credit Issuer at a rate per annum equal to the
Overnight Bank Funding Rate from time to time then in effect, plus any administrative, processing or similar fees that are reasonably
and customarily charged by the Letter of Credit Issuer in connection with the foregoing. The failure of any L/C Participant to make available
to the Administrative Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment
under any Letter of Credit shall not relieve any other L/C Participant of its obligation hereunder to make available to the Administrative
Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under such Letter of Credit
on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to
make available to the Administrative Agent such other L/C Participant’s Revolving Credit Commitment Percentage of any such payment.
(d) Whenever
the Administrative Agent receives a payment in respect of an unpaid reimbursement obligation as to which the Administrative Agent has
received for the account of the Letter of Credit Issuer any payments from the L/C Participants pursuant to clause (c) above,
the Administrative Agent shall promptly pay to each L/C Participant that has paid its Revolving Credit Commitment Percentage of such
reimbursement obligation, in Dollars and in immediately available funds, an amount equal to such L/C Participant’s share (based
upon the proportionate aggregate amount originally funded by such L/C Participant to the aggregate amount funded by all L/C Participants)
of the amount so paid in respect of such reimbursement obligation and interest thereon accruing after the purchase of the respective
L/C Participations at the Overnight Bank Funding Rate.
(e) The
obligations of the L/C Participants to make payments to the Administrative Agent for the account of the Letter of Credit Issuer with
respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification
or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances.
(f) If
any payment received by the Administrative Agent for the account of the Letter of Credit Issuer pursuant to Section 3.3(c) is
required to be returned under any of the circumstances described in Section 13.20 (including pursuant to any settlement entered
into by the Letter of Credit Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the Letter
of Credit Issuer its Revolving Credit Commitment 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 applicable Overnight
Bank Funding Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of
the Obligations and the termination of this Agreement.
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3.4 Agreement
to Repay Letter of Credit Drawings.
(a) The
Borrower hereby agrees to reimburse the Letter of Credit Issuer, by making payment with respect to any drawing under any Letter of Credit
in the same currency in which such drawing was made unless the Letter of Credit Issuer (at its option) shall have specified in the notice
of drawing that it will require reimbursement in Dollars. Any such reimbursement shall be made by the Borrower to the Administrative
Agent in immediately available funds for any payment or disbursement made by the Letter of Credit Issuer under any Letter of Credit (each
such amount so paid until reimbursed, an “Unpaid Drawing”) no later than the date that is one Business Day after the
date on which the Borrower receives written notice of such payment or disbursement (the “Reimbursement Date”), with
interest on the amount so paid or disbursed by the Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New
York City time) on the Reimbursement Date, from the Reimbursement Date to the date the Letter of Credit Issuer is reimbursed therefor
at a rate per annum that shall at all times be the Applicable Margin for ABR Loans that are Revolving Credit Loans plus the ABR
as in effect from time to time, provided that, notwithstanding anything contained in this Agreement to the contrary, (i) unless
the Borrower shall have notified the Administrative Agent and the relevant Letter of Credit Issuer prior to 1:00 p.m. (New York
City time) on the Reimbursement Date that the Borrower intends to reimburse the relevant Letter of Credit Issuer for the amount of such
drawing with funds other than the proceeds of Loans, the Borrower shall be deemed to have given a Notice of Borrowing requesting that,
with respect to Letters of Credit, the Revolving Credit Lenders make Revolving Credit Loans (which shall be denominated in Dollars and
which shall be ABR Loans) on the Reimbursement Date in the amount of such drawing and (ii) the Administrative Agent shall promptly
notify each L/C Participant of such drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each L/C Participant
shall be irrevocably obligated to make a Revolving Credit Loan to the Borrower in Dollars in the manner deemed to have been requested
in the amount of its Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 2:00 p.m. (New York City time) on
such Reimbursement Date by making the amount of such Revolving Credit Loan available to the Administrative Agent. Such Revolving Credit
Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving
Credit Loans solely for purpose of reimbursing the Letter of Credit Issuer for the related Unpaid Drawing. In the event that the Borrower
fails to Cash Collateralize any Letter of Credit that is outstanding on the L/C Facility Maturity Date, the full amount of the Letters
of Credit Outstanding in respect of such Letter of Credit shall be deemed to be an Unpaid Drawing subject to the provisions of this Section 3.4
except that the Letter of Credit Issuer shall hold the proceeds received from the L/C Participants as contemplated above as cash collateral
for such Letter of Credit to reimburse any Unpaid Drawing under such Letter of Credit and shall use such proceeds first, to reimburse
itself for any Unpaid Drawings made in respect of such Letter of Credit following the L/C Facility Maturity Date, second, to the extent
such Letter of Credit expires or is returned undrawn while any such cash collateral remains, to the repayment of obligations in respect
of any Revolving Credit Loans that have not been paid at such time and third, to the Borrower or as otherwise directed by a court of
competent jurisdiction. Nothing in this Section 3.4(a) shall affect the Borrower’s obligation to repay all outstanding
Revolving Credit Loans when due in accordance with the terms of this Agreement.
(b) The
obligation of the Borrower to reimburse the Letter of Credit Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement
under all circumstances, including the following:
(i) any
lack of validity or enforceability of this Agreement or any of the other Credit Documents;
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(ii) the
existence of any claim, set-off, defense or other right that the Borrower may have at any time against a beneficiary named in a Letter
of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent,
the Letter of Credit Issuer, any Lender or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named
in any such Letter of Credit);
(iii) any
draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under such Letter of Credit;
(iv) waiver
by the Letter of Credit Issuer of any requirement that exists for the Letter of Credit Issuer’s protection and not the protection
of the Borrower (or Holdings or other Restricted Subsidiary) or any waiver by the Letter of Credit Issuer which does not in fact materially
prejudice the Borrower (or Holdings or other Restricted Subsidiary);
(v) any
payment made by the Letter of Credit Issuer in respect of an otherwise complying item presented after the date specified as the expiration
date of, or the date by which documents must be received under, such Letter of Credit if presentation after such date is authorized by
the Uniform Commercial Code, the ISP or the UCP or the Letter of Credit itself, as applicable;
(vi) any
payment by the Letter of Credit Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the Letter of Credit Issuer under such Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or
other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under the Bankruptcy Code;
(vii) honor
of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;
(viii) any
adverse change in any relevant exchange rates or in the relevant currency markets generally; or
(ix) 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, the Borrower (or Holdings or other Restricted Subsidiary) (other than
the defense of payment or performance).
(c) The
Borrower shall not be obligated to reimburse the Letter of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer
under the Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part
of the Letter of Credit Issuer as determined in the final non-appealable judgment of a court of competent jurisdiction.
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3.5 Increased
Costs. If, after the Closing Date, any Change in Law shall (x) impose, modify or make applicable any reserve, deposit, capital
adequacy, liquidity or similar requirement against letters of credit issued by the Letter of Credit Issuer, or any L/C Participant’s
L/C Participation therein, (y) impose on the Letter of Credit Issuer or any L/C Participant any other conditions or costs affecting
its obligations under this Agreement in respect of Letters of Credit or L/C Participations therein or any Letter of Credit or such L/C
Participant’s L/C Participation therein (other than with respect to Taxes) or (z) impose on the Letter of Credit Issuer or
any L/C Participant any other conditions or costs affecting its obligations under this Agreement in respect of Letters of Credit or L/C
Participations therein or any Letter of Credit or such L/C Participant’s L/C Participation therein (other than (1) Indemnified
Taxes, (2) Excluded Taxes or (3) Other Taxes) on its loans, loan principal, letters of credits, commitments or other obligations,
or its deposits, reserves, other liabilities or capital attributable thereto, and the result of any of the foregoing is to increase the
actual cost to the Letter of Credit Issuer or such L/C Participant of issuing, maintaining or participating in any Letter of Credit,
or to reduce the actual amount of any sum received or receivable by the Letter of Credit Issuer or such L/C Participant hereunder in
respect of Letters of Credit or L/C Participations therein, then, promptly after receipt of written demand to the Borrower by the Letter
of Credit Issuer or such L/C Participant, as the case may be (a copy of which notice shall be sent by the Letter of Credit Issuer or
such L/C Participant to the Administrative Agent (with respect to a Letter of Credit issued on account of the Borrower (or Holdings or
other Restricted Subsidiary))), the Borrower shall pay to the Letter of Credit Issuer or such L/C Participant such actual additional
amount or amounts as will compensate the Letter of Credit Issuer or such L/C Participant for such increased cost or reduction, it being
understood and agreed, however, that the Letter of Credit Issuer or an L/C Participant shall not be entitled to such compensation as
a result of such Person’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation
as in effect on the Closing Date. A certificate submitted to the Borrower by the relevant Letter of Credit Issuer or an L/C Participant,
as the case may be (a copy of which certificate shall be sent by the Letter of Credit Issuer or such L/C Participant to the Administrative
Agent), setting forth in reasonable detail the basis for the determination of such actual additional amount or amounts necessary to compensate
the Letter of Credit Issuer or such L/C Participant as aforesaid shall be conclusive and binding on the Borrower absent clearly demonstrable
error. The obligations of the Borrower under this Section 3.5 shall survive the payment in full of the Obligations and the
termination of this Agreement.
3.6 New
or Successor Letter of Credit Issuer.
(a) The
Letter of Credit Issuer may resign as the Letter of Credit Issuer upon 60 days’ prior written notice to the Administrative Agent,
the Lenders, Holdings, and the Borrower. The Borrower may replace any Letter of Credit Issuer for any reason upon written notice to the
Administrative Agent and such Letter of Credit Issuer. The Borrower may add Letter of Credit Issuers at any time upon notice to the Administrative
Agent. If the Letter of Credit Issuer shall resign or be replaced, or if the Borrower shall decide to add a new Letter of Credit Issuer
under this Agreement, then the Borrower may appoint from among the Revolving Credit Lenders a successor issuer of Letters of Credit or
a new Letter of Credit Issuer, as the case may be, or, with the consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed), another successor or new issuer of Letters of Credit, whereupon such successor issuer accepting such appointment
shall succeed to the rights, powers and duties of the replaced or resigning Letter of Credit Issuer under this Agreement and the other
Credit Documents, or such new issuer of Letters of Credit accepting such appointment shall be granted the rights, powers and duties of
the Letter of Credit Issuer hereunder, and the term Letter of Credit Issuer shall mean such successor or such new issuer of Letters of
Credit effective upon such appointment. At the time such resignation or replacement shall become effective, the Borrower shall pay to
the resigning or replaced Letter of Credit Issuer all accrued and unpaid fees applicable to the Letters of Credit pursuant to Sections
4.1(b) and 4.1(d). The acceptance of any appointment as the Letter of Credit Issuer hereunder whether as a successor
issuer or new issuer of Letters of Credit in accordance with this Agreement, shall be evidenced by an agreement entered into by such
new or successor issuer of Letters of Credit, in a form reasonably satisfactory to the Borrower and the Administrative Agent and, from
and after the effective date of such agreement, such new or successor issuer of Letters of Credit shall become the Letter of Credit Issuer
hereunder. After the resignation or replacement of the Letter of Credit Issuer hereunder, the resigning or replaced Letter of Credit
Issuer shall remain a party hereto and shall continue to have all the rights and obligations of the Letter of Credit Issuer under this
Agreement and the other Credit Documents with respect to Letters of Credit issued by it prior to such resignation or replacement, but
shall not be required to issue additional Letters of Credit. In connection with any resignation or replacement pursuant to this clause
(a) (but, in case of any such resignation, only to the extent that a successor issuer of Letters of Credit shall have been appointed),
either (i) the Borrower, the resigning or replaced Letter of Credit Issuer and the successor issuer of Letters of Credit shall arrange
to have any outstanding Letters of Credit issued by the resigning or replaced Letter of Credit Issuer replaced with Letters of Credit
issued by the successor issuer of Letters of Credit or (ii) the Borrower shall cause the successor issuer of Letters of Credit,
if such successor issuer is reasonably satisfactory to the replaced or resigning Letter of Credit Issuer, to issue “back-stop”
Letters of Credit naming the resigning or replaced Letter of Credit Issuer as beneficiary for each outstanding Letter of Credit issued
by the resigning or replaced Letter of Credit Issuer, which new Letters of Credit shall be denominated in the same currency as, and shall
have a face amount equal to, the Letters of Credit being back-stopped and the sole requirement for drawing on such new Letters of Credit
shall be a drawing on the corresponding back-stopped Letters of Credit. After any resigning or replaced Letter of Credit Issuer’s
resignation or replacement as Letter of Credit Issuer, the provisions of this Agreement relating to the Letter of Credit Issuer shall
inure to its benefit as to any actions taken or omitted to be taken by it (A) while it was the Letter of Credit Issuer under this
Agreement or (B) at any time with respect to Letters of Credit issued by such Letter of Credit Issuer.
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(b) To
the extent there are, at the time of any resignation or replacement as set forth in clause (a) above, any outstanding Letters
of Credit, nothing herein shall be deemed to impact or impair any rights and obligations of any of the parties hereto with respect to
such outstanding Letters of Credit (including, without limitation, any obligations related to the payment of Fees or the reimbursement
or funding of amounts drawn), except that the Borrower, the resigning or replaced Letter of Credit Issuer and the successor issuer of
Letters of Credit shall have the obligations regarding outstanding Letters of Credit described in clause (a) above.
3.7 Role
of Letter of Credit Issuer. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the Letter of
Credit Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the Letter of Credit Issuer, the Administrative Agent, any of their respective
Affiliates nor any correspondent, participant or assignee of the Letter of Credit Issuer shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the approval of the Required Revolving Credit Lenders; (ii) any
action taken or omitted in the absence of gross negligence or willful misconduct as determined in the final non-appealable judgment of
a court of competent jurisdiction; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument
related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary
or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not,
preclude the Borrower’s pursuit of such rights and remedies as they may have against the beneficiary or transferee at law or under
any other agreement. None of the Letter of Credit Issuer, the Administrative Agent, any of their respective Affiliates nor any correspondent,
participant or assignee of the Letter of Credit Issuer shall be liable or responsible for any of the matters described in Section 3.3(b);
provided that anything in such Section to the contrary notwithstanding, the Borrower may have a claim against a Letter of
Credit Issuer, and a Letter of Credit Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by such Letter of Credit
Issuer’s willful misconduct or gross negligence or the Letter of Credit Issuer’s willful failure to pay under any Letter
of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms
and conditions of a Letter of Credit in each case as determined in the final non-appealable judgment of a court of competent jurisdiction.
In furtherance and not in limitation of the foregoing, the Letter of Credit Issuer may accept documents that appear on their face to
be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the Letter
of Credit Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
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The Letter of Credit Issuer
may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial
Telecommunication message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
3.8 Cash
Collateral.
(a) Certain
Credit Support Events. Upon the written request of the Administrative Agent or the Letter of Credit Issuer, if (i) as
of the L/C Facility Maturity Date, any L/C Obligation for any reason remains outstanding, (ii) the Borrower shall be required to
provide Cash Collateral pursuant to Section 11.13, or (iii) the provisions of Section 2.16(a)(v) are
in effect, the Borrower shall immediately (in the case of clause (ii) above) or within one Business Day (in all other
cases) following any written request by the Administrative Agent or the Letter of Credit Issuer, provide Cash Collateral in an amount
not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iii) above,
after giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender).
(b) Grant
of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grant
to (and subject to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the Letter of Credit Issuer
and the Revolving Credit Lenders, and agree to maintain, a first priority security interest in all such cash, deposit accounts and all
balances therein as described in Section 3.8(a), and all other property so provided as collateral pursuant hereto, and in
all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 3.8(c).
If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the
Administrative Agent or the Letter of Credit Issuer as herein provided, other than Permitted Liens, or that the total amount of such
Cash Collateral is less than the Minimum Collateral Amount (including, without limitation, as a result of exchange rate fluctuations),
the Borrower will, promptly upon written demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash
Collateral in an amount sufficient to eliminate such deficiency. Cash Collateral shall be maintained in blocked, interest bearing deposit
accounts with the Administrative Agent. The Borrower shall pay on demand therefor from time to time all customary account opening, activity
and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.
(c) Application.
Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 3.8
or Sections 2.16, 5.2, or 11.13 in respect of Letters of Credit shall be held and applied to the satisfaction
of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting
Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other
application of such property as may otherwise be provided for herein.
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(d) Cash
Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released
promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by
the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 13.6(b)(ii))
or there is no longer existing an Event of Default) or (ii) the determination by the Administrative Agent and the Letter of Credit
Issuer that there exists excess Cash Collateral.
3.9 Applicability
of ISP and UCP. Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit is issued,
(i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs
and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance, shall
apply to each commercial Letter of Credit. Notwithstanding the foregoing, the Letter of Credit Issuer shall not be responsible to the
Borrower for, and the Letter of Credit Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or
inaction of the Letter of Credit Issuer required or permitted under any law, order, or practice that is required or permitted to be applied
to any Letter of Credit or this Agreement, including the applicable law or any order of a jurisdiction where the Letter of Credit Issuer
or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements,
or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services
Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses
such law or practice.
3.10 Conflict
with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control and any grant of security interest in any Issuer Documents shall be void.
3.11 Letters
of Credit Issued for Restricted Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support
of any obligations of, or is for the account of, Holdings or a Restricted Subsidiary, the Borrower shall be obligated to reimburse the
Letter of Credit Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance
of Letters of Credit for the account of Holdings or any other Restricted Subsidiaries inures to the benefit of the Borrower and that
the Borrower’s business derives substantial benefits from the businesses of Holdings and the other Restricted Subsidiaries.
3.12 Provisions
Related to Extended Revolving Credit Commitments. If the Letter of Credit Expiration Date in respect of any tranche of Revolving
Credit Commitments occurs prior to the expiry date of any Letter of Credit, then (i) if consented to by the Letter of Credit Issuer
which issued such Letter of Credit, if one or more other tranches of Revolving Credit Commitments in respect of which the Letter of Credit
Expiration Date shall not have so occurred are then in effect, such Letters of Credit for which consent has been obtained shall automatically
be deemed to have been issued (including for purposes of the obligations of the Revolving Credit Lenders to purchase participations therein
and to make Revolving Credit Loans and payments in respect thereof pursuant to Sections 3.3 and 3.4) under (and ratably
participated in by Lenders pursuant to) the Revolving Credit Commitments in respect of such non-terminating tranches up to an aggregate
amount not to exceed the aggregate amount of the unutilized Revolving Credit Commitments thereunder at such time (it being understood
that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to immediately
preceding clause (i), the Borrower shall Cash Collateralize any such Letter of Credit in accordance with Section 3.8.
Upon the maturity date of any tranche of Revolving Credit Commitments, the sublimit for Letters of Credit may be reduced as agreed between
the Letter of Credit Issuer and the Borrower, without the consent of any other Person.
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Section 4.
Fees
4.1 Fees.
(a) Without
duplication, the Borrower agrees to pay to the Administrative Agent in Dollars, for the account of each Revolving Credit Lender (in each
case pro rata according to the respective Revolving Credit Commitments of all such Lenders), a commitment fee (the “Commitment
Fee”) for each day from the Closing Date to the Revolving Credit Termination Date. Each Commitment Fee shall be payable (x) quarterly
in arrears on the last Business Day of each March, June, September, and December (for the three-month period (or portion thereof)
ended on such day for which no payment has been received) and (y) on the Revolving Credit Termination Date (for the period ended
on such date for which no payment has been received pursuant to clause (x) above), and shall be computed for each day during
such period at a rate per annum equal to the Commitment Fee Rate in effect on such day on the Available Commitment in effect on such
day.
(b) Without
duplication, the Borrower agrees to pay to the Administrative Agent in Dollars for the account of the Revolving Credit Lenders pro rata
on the basis of their respective Letter of Credit Exposure, a fee in respect of each Letter of Credit issued on the Borrower’s
or any of the other Restricted Subsidiaries’ behalf (the “Letter of Credit Fee”), for the period from the date
of issuance of such Letter of Credit to the termination date of such Letter of Credit computed at the per annum rate for each day equal
to the Applicable Margin for Term Benchmark Revolving Credit Loans less the Fronting Fee set forth in clause (d) below. Except
as provided below, such Letter of Credit Fees shall be due and payable (x) quarterly in arrears on the last Business Day of each
March, June, September, and December and (y) on the date upon which the Total Revolving Credit Commitment terminates and the
Letters of Credit Outstanding shall have been reduced to zero.
(c) Without
duplication, the Borrower agrees to pay to the Administrative Agent in Dollars, for its own account, administrative agent fees as have
been previously agreed in writing or as may be agreed in writing from time to time.
(d) Without
duplication, the Borrower agrees to pay to the Letter of Credit Issuer a fee in Dollars in respect of each Letter of Credit issued by
it to the Borrower (the “Fronting Fee”) (i) with respect to each commercial Letter of Credit, at the rate of
0.125%, computed on the amount of such Letter of Credit, and (ii) with respect to each standby Letter of Credit, for the period
from the date of issuance of such Letter of Credit to the termination date of such Letter of Credit, computed at the rate for each day
equal to 0.125% per annum on the average daily Stated Amount of such Letter of Credit (or at such other rate per annum as agreed in writing
between the Borrower and the Letter of Credit Issuer). Such Fronting Fees shall be due and payable (x) quarterly in arrears on the
first Business Day after the end of each of March, June, September and December and (y) on the date upon which the Total
Revolving Credit Commitment terminates and the Letters of Credit Outstanding shall have been reduced to zero.
(e) Without
duplication, the Borrower agrees to pay directly to the Letter of Credit Issuer in Dollars upon each issuance or renewal of, drawing
under, and/or amendment of, a Letter of Credit issued by it such amount as shall at the time of such issuance or renewal of, drawing
under, and/or amendment be the processing charge that the Letter of Credit Issuer is customarily charging for issuances or renewals of,
drawings under or amendments of, letters of credit issued by it.
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(f) Notwithstanding
the foregoing, the Borrower shall not be obligated to pay any amounts to any Defaulting Lender pursuant to this Section 4.1.
4.2 Voluntary
Reduction of Revolving Credit Commitments. Upon at least two Business Days’ prior written notice to the Administrative Agent
at the Administrative Agent’s Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the
Borrower shall have the right, without premium or penalty, on any day, permanently to terminate or reduce the Revolving Credit Commitments
in whole or in part; provided that (a) any such reduction shall apply proportionately and permanently to reduce the Revolving
Credit Commitment of each of the Lenders of any applicable Class, except that (i) notwithstanding the foregoing, in connection with
the establishment on any date of any Extended Revolving Credit Commitments pursuant to Section 2.14(g), the Revolving Credit
Commitments of any one or more Lenders providing any such Extended Revolving Credit Commitments on such date shall be reduced in an amount
equal to the amount of Revolving Credit Commitments so extended on such date (provided that (x) after giving effect to any
such reduction and to the repayment of any Revolving Credit Loans made on such date, the Revolving Credit Exposure of any such Lender
does not exceed the Revolving Credit Commitment thereof and (y) for the avoidance of doubt, any such repayment of Revolving Credit
Loans contemplated by the preceding clause shall be made in compliance with the requirements of Section 5.3(a) with
respect to the ratable allocation of payments hereunder, with such allocation being determined after giving effect to any conversion
pursuant to Section 2.14(g) of Revolving Credit Commitments and Revolving Credit Loans into Extended Revolving Credit
Commitments and Extended Revolving Credit Loans pursuant to Section 2.14(g) prior to any reduction being made to the
Revolving Credit Commitment of any other Lender) and (ii) the Borrower may at its election permanently reduce the Revolving Credit
Commitment of a Defaulting Lender to $0 without affecting the Revolving Credit Commitments of any other Lender, (b) any partial
reduction pursuant to this Section 4.2 shall be in the amount of at least $5,000,000, and (c) after giving effect to
such termination or reduction and to any prepayments of the Loans made on the date thereof in accordance with this Agreement, the aggregate
amount of the Lenders’ Revolving Credit Exposures shall not exceed the Total Revolving Credit Commitment and the aggregate amount
of the Lenders’ Revolving Credit Exposures in respect of any Class shall not exceed the aggregate Revolving Credit Commitment
of such Class.
4.3 Mandatory
Termination of Commitments.
(a) [Reserved].
(b) The
Revolving Credit Commitment shall terminate at 5:00 p.m. (New York City time) on the Revolving Credit Maturity Date.
(c) The
Swingline Commitment shall terminate at 5:00 p.m. (New York City time) on the Swingline Maturity Date.
(d) The
New Term Loan Commitment for any Series shall, unless otherwise provided in the applicable Joinder Agreement, terminate at 5:00
p.m. (New York City time) on the Increased Amount Date for such Series.
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Section 5. Payments
5.1 Voluntary
Prepayments. (a) The Borrower shall have the right to prepay Loans, including Term Loans, Revolving Credit Loans, and Swingline
Loans, as applicable, in each case, other than as set forth in Section 5.1(b), without premium or penalty, in whole or in
part from time to time on the following terms and conditions: (1) the Borrower shall give the Administrative Agent at the Administrative
Agent’s Office written notice of its intent to make such prepayment, the amount of such prepayment and (in the case of Term Benchmark
Loans) the specific Borrowing(s) pursuant to which made, which notice shall be given by the Borrower no later than 12:00 Noon (New
York City time) (i) in the case of Term Benchmark Loans, three Business Days prior to, (ii) in the case of ABR Loans (other
than Swingline Loans), one Business Day prior to or (iii) in the case of Swingline Loans, on, the date of such prepayment and shall
promptly be transmitted by the Administrative Agent to each of the Lenders or the Swingline Lender, as the case may be; (2) each
partial prepayment of (i) any Borrowing of Term Benchmark Loans shall be in a minimum amount of $5,000,000 and in multiples of $1,000,000
in excess thereof, (ii) any ABR Loans (other than Swingline Loans) shall be in a minimum amount of $1,000,000 and in multiples of
$100,000 in excess thereof, and (iii) Swingline Loans shall be in a minimum amount of $500,000 and in multiples of $100,000 in excess
thereof, provided that no partial prepayment of Term Benchmark Loans made pursuant to a single Borrowing shall reduce the outstanding
Term Benchmark Loans made pursuant to such Borrowing to an amount less than the applicable Minimum Borrowing Amount for such Term Benchmark
Loans, and (3) in the case of any prepayment of Term Benchmark Loans pursuant to this Section 5.1 on any day other than
the last day of an Interest Period applicable thereto, the Borrower shall, promptly after receipt of a written request by any applicable
Lender (which request shall set forth in reasonable detail the basis for requesting such amount), pay to the Administrative Agent for
the account of such Lender any amounts required pursuant to Section 2.11. Each prepayment in respect of any Term Loans pursuant
to this Section 5.1 shall be (a) applied to the Class or Classes of Term Loans as the Borrower may specify and
(b) applied to reduce Initial Term Loan Repayment Amounts, any New Term Loan Repayment Amounts and, subject to Section 2.14(g),
Extended Term Loan Repayment Amounts, as the case may be, in each case, in such order as the Borrower may specify. At the Borrower’s
election in connection with any prepayment pursuant to this Section 5.1, such prepayment shall not be applied to any Term
Loan or Revolving Credit Loan of a Defaulting Lender.
(b) In
the event that, on or prior to the six-month anniversary of the Eleventh Amendment Effective Date, the Borrower (i) makes any prepayment
of Initial Term Loans in connection with any Repricing Transaction the primary purpose of which is to decrease the Effective Yield on
such Initial Term Loans or (ii) effects any amendment of this Agreement resulting in a Repricing Transaction the primary purpose
of which is to decrease the Effective Yield on the Initial Term Loans, the Borrower shall pay to the Administrative Agent, for the ratable
account of each of the applicable Lenders, (x) in the case of clause (i), a prepayment premium of 1.00% of the principal amount
of the Initial Term Loans being prepaid in connection with such Repricing Transaction and (y) in the case of clause (ii), an amount
equal to 1.00% of the aggregate amount of the applicable Initial Term Loans outstanding immediately prior to such amendment that are
subject to an effective pricing reduction pursuant to such Repricing Transaction.
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5.2 Mandatory
Prepayments.
(a) Term
Loan Prepayments.
(i) On
each occasion that a Prepayment Event occurs, the Borrower shall, within three Business Days after receipt of the Net Cash Proceeds of
a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten Business Days after the
occurrence of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred
Net Cash Proceeds Payment Date), prepay, in accordance with clause (c) below, Term Loans with an equivalent principal amount
equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that, the percentage in this Section 5.2(a)(i) shall
be reduced to (A) 50% if the Consolidated Total Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect
thereto but, at the election of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below
and as certified by an Authorized Officer of the Borrower) is less than or equal to 3.25 to 1.00 but greater than 3.00 to 1.00 and (B) 0%
if the Consolidated Total Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but, at the election
of the Borrower, giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized
Officer of the Borrower) is less than or equal to 3.00 to 1.00; provided, further, that with respect to the Net Cash Proceeds of an Asset
Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, in each case solely to the extent with respect to any Collateral,
the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Permitted Other Indebtedness (and with such prepaid
or repurchased Permitted Other Indebtedness permanently extinguished) with a Lien on the Collateral ranking pari passu with the
Liens securing the Obligations to the extent any applicable Permitted Other Indebtedness Document requires the issuer of such Permitted
Other Indebtedness to prepay or make an offer to purchase such Permitted Other Indebtedness with the proceeds of such Prepayment Event,
in each case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds multiplied by (y) a
fraction, the numerator of which is the outstanding principal amount of the Permitted Other Indebtedness with a Lien on the Collateral
ranking pari passu with the Liens securing the Obligations and with respect to which such a requirement to prepay or make an offer
to purchase exists and the denominator of which is the sum of the outstanding principal amount of such Permitted Other Indebtedness and
the outstanding principal amount of Term Loans.
(ii) Not
later than ten Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for
any fiscal year (commencing with and including the fiscal year ending December 31, 2014), if, and solely to the extent, Excess Cash
Flow for such fiscal year exceeds $15,000,000, the Borrower shall prepay (or cause to be prepaid), in accordance with clause (c) below,
Term Loans with a principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the
percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the Consolidated Total Debt to Consolidated EBITDA
Ratio on the date of prepayment (prior to giving effect thereto but giving effect to any prepayment described in clause (y) below
and as certified by an Authorized Officer of Holdings) for the most recent Test Period ended prior to such prepayment date is less than
or equal to 3.25 to 1.00 but greater than 3.00 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if
the Consolidated Total Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but giving effect
to any prepayment described in clause (y) below and as certified by an Authorized Officer of Holdings) for the most recent
Test Period ended prior to such prepayment date is less than or equal to 3.00 to 1.00, minus (y) (i) the principal amount of
Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.6 (in each case, including purchases
of the Loans by Holdings and its Subsidiaries at or below par offered to all Lenders and Dutch auctions, in which case the amount of
voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans at or below par) during such fiscal
year or after such fiscal year and prior to the date of the required Excess Cash Flow payment, and (ii) to the extent accompanied
by permanent reduction of commitments, optional reductions of Revolving Credit Commitments, Extended Revolving Credit Commitments or
Incremental Revolving Credit Commitment, as applicable, Revolving Credit Loans, Swingline Loans, Extended Revolving Credit Loans, Incremental
Revolving Credit Loans, in each case, other than to the extent any such prepayment is funded with the proceeds of Funded Debt.
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(iii) On
each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), the Borrower shall within
three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay, in accordance with clause (c) below,
Term Loans with a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness.
(iv) Notwithstanding
any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment
Event by a Subsidiary that is not a Credit Party giving rise to a prepayment pursuant to clause (i) above (a “Non-Credit
Party Prepayment Event”) or Excess Cash Flow are prohibited or delayed by any Requirements of Law from being repatriated to
the Credit Parties, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to
be applied to repay Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only
so long, as the applicable Requirements of Law will not permit repatriation to the Credit Parties (the Credit Parties hereby agreeing
to cause the applicable Subsidiary to promptly take all actions reasonably required by the applicable Requirements of Law to permit repatriation),
and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirements
of Law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten Business
Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually
repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clauses (i) and (ii) above,
as applicable, and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash
Proceeds of any Non-Credit Party Prepayment Event or Excess Cash Flow would have a material adverse tax consequence with respect to such
Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the
applicable Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds
from any Non-Credit Party Prepayment Event so retained would otherwise have been required to be applied to reinvestments or prepayments
pursuant to clause (i) above or, in the case of Excess Cash Flow, a date on or before the date that is eighteen months
after the date an amount equal to such Excess Cash Flow would have so required to be applied to prepayments pursuant to clause (ii) above
unless previously actually repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the repayment
of the Term Loans pursuant to clause (ii) above, (x) the Borrower shall apply an amount equal to such Net Cash
Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received
by the Credit Parties rather than such Subsidiary, less the amount of any taxes that would have been payable or reserved against if such
Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated
if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness
of a Subsidiary that is not a Credit Party. For the avoidance of doubt, nothing in this Agreement, including Section 5 shall
be construed to require any Subsidiary to repatriate cash.
(b) Repayment
of Revolving Credit Loans. If on any date the aggregate amount of the Lenders’ Revolving Credit Exposures in respect of any
Class of Revolving Loans for any reason exceeds 100% of the Revolving Credit Commitment of such Class then in effect, the Borrower
shall forthwith repay on such date Revolving Loans of such Class in an amount equal to such excess. If after giving effect to the
prepayment of all outstanding Revolving Loans of such Class, the Revolving Credit Exposures of such Class exceed the Revolving Credit
Commitment of such Class then in effect, the Borrower shall Cash Collateralize the Letters of Credit Outstanding in relation to
such Class to the extent of such excess.
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(c) Application
to Repayment Amounts. Subject to Section 5.2(f), each prepayment of Term Loans required by Section 5.2(a)(i) or
(ii) shall be allocated pro rata among the Initial Term Loans, the New Term Loans and the Extended Term Loans based on the
applicable remaining Repayment Amounts due thereunder and shall be applied within each Class of Term Loans in respect of such Term
Loans in direct order of maturity thereof or as otherwise directed by the Borrower; provided that if any Class of Extended
Term Loans have been established hereunder, the Borrower may allocate such prepayment in its sole discretion to the Term Loans of the
Existing Term Loan Class, if any, from which such Extended Term Loans were converted (except, as to Term Loans made pursuant to a Joinder
Agreement, as otherwise set forth in such Joinder Agreement, or as to a Replacement Term Loan). Subject to Section 5.2(f),
with respect to each such prepayment, the Borrower will, not later than the date specified in Section 5.2(a) for making
such prepayment, give the Administrative Agent written notice which shall include a calculation of the amount of such prepayment to be
applied to each Class of Term Loans requesting that the Administrative Agent provide notice of such prepayment to each Initial Term
Loan Lender, New Term Loan Lender, or Extended Term Loan Lender, as applicable.
(d) Application
to Term Loans. With respect to each prepayment of Term Loans required by Section 5.2(a), the Borrower may, if applicable,
designate the Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant to which made; provided, that
if any Lender has provided a Rejection Notice in compliance with Section 5.2(f), such prepayment shall be applied with respect
to the Term Loans to be prepaid on a pro rata basis across all outstanding Types of such Term Loans in proportion to the percentage of
such outstanding Term Loans to be prepaid represented by each such Class. In the absence of a Rejection Notice or a designation by the
Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable
discretion with a view, but no obligation, to minimize breakage costs owing under Section 2.11.
(e) Application
to Revolving Credit Loans. With respect to each prepayment of Revolving Credit Loans, the Borrower may designate (i) the Types
of Loans that are to be prepaid and the specific Borrowing(s) pursuant to which made and (ii) the Revolving Loans to be prepaid,
provided that (y) each prepayment of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans; and (z) notwithstanding
the provisions of the preceding clause (y), no prepayment of Revolving Loans shall be applied to the Revolving Credit Loans of
any Defaulting Lender unless otherwise agreed in writing by the Borrower. In the absence of a designation by the Borrower as described
in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion with
a view, but no obligation, to minimize breakage costs owing under Section 2.11.
(f) Rejection
Right. Holdings or the Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required
to be made pursuant to Section 5.2(a) at least three Business Days prior to the date of such prepayment. Each such notice
shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative
Agent will promptly notify each Lender holding Term Loans of the contents of such prepayment notice and of such Lender’s pro rata
share of the prepayment. Each Term Loan Lender may reject all (but not less than all) of its pro rata share of any mandatory prepayment
other than any such mandatory prepayment with respect to a Debt Incurrence Prepayment Event under Section 5.2(a)(i) or
Permitted Other Indebtedness under Section 5.2(a)(iii) (such declined amounts, the “Declined Proceeds”)
of Term Loans required to be made pursuant to Section 5.2(a) by providing written notice (each, a “Rejection
Notice”) to the Administrative Agent no later than 5:00 p.m. (New York City time) one Business Day after the date of such
Lender’s receipt of notice from the Administrative Agent regarding such prepayment. If a Lender fails to deliver a Rejection Notice
to the Administrative Agent within the time frame specified above, 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 (“Retained Declined Proceeds”).
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5.3 Method
and Place of Payment.
(a) Except
as otherwise specifically provided in Section 5.4 with respect to taxes, all payments under this Agreement shall be made
by the Borrower, without set-off, counterclaim or deduction of any kind, to the Administrative Agent for the ratable account of the Lenders
entitled thereto (or, in the case of the Swingline Loans to the Swingline Lender) or the Letter of Credit Issuer entitled thereto, as
the case may be, not later than 2:00 p.m. (New York City time), in each case, on the date when due and shall be made in immediately
available funds at the Administrative Agent’s Office or at such other office as the Administrative Agent shall specify for such
purpose by notice to the Borrower (or, in the case of the Swingline Loans, at such office as the Swingline Lender shall specify for such
purpose by notice to the Borrower), it being understood that written or facsimile notice by the Borrower to the Administrative Agent
to make a payment from the funds in the Borrower’s account at the Administrative Agent’s Office shall constitute the making
of such payment to the extent of such funds held in such account. All repayments or prepayments of any Loans (whether of principal, interest
or otherwise) hereunder shall be made in the currency in which such Loans are denominated and all other payments under each Credit Document
shall, unless otherwise specified in such Credit Document, be made in Dollars. The Administrative Agent will thereafter cause to be distributed
on the same day (if payment was actually received by the Administrative Agent prior to 2:00 p.m. (New York City time) or, otherwise,
on the next Business Day in the Administrative Agent’s sole discretion) like funds relating to the payment of principal or interest
or Fees ratably to the Lenders entitled thereto.
(b) Any
payments under this Agreement that are made later than 2:00 p.m. (New York City time) may be deemed to have been made on the next
succeeding Business Day in the Administrative Agent’s sole discretion for purposes of calculating interest thereon (or, in the
case of the Swingline Loans, at the Swingline Lender’s sole discretion). Except as otherwise provided herein, whenever any payment
to be made hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest shall be payable during such extension at the applicable
rate in effect immediately prior to such extension.
5.4 Net
Payments.
(a) Payments
Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any
and all payments by or on account of any obligation of any Credit Party hereunder or under any other Credit Document shall to the extent
permitted by applicable laws be made free and clear of and without reduction or withholding for any Taxes.
(ii) If
any Withholding Agent shall be required by applicable law to withhold or deduct any Taxes from any payment, then (A) such Withholding
Agent shall withhold or make such deductions as are reasonably determined by such Withholding Agent to be required by applicable law,
(B) such Withholding Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority, and (C) to
the extent that the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by the applicable
Credit Party shall be increased as necessary so that after any required withholding or deductions have been made (including withholding
or deductions applicable to additional sums payable under this Section 5.4) each Lender (or, in the case of a payment to
the Administrative Agent for its own account, the Administrative Agent) receives an amount equal to the sum it would have received had
no such withholding or deductions been made.
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(b) Payment
of Other Taxes by the Borrower. Without limiting the provisions of subsection (a) above, the Borrower shall timely pay
any Other Taxes to the relevant Governmental Authority in accordance with applicable law or timely reimburse the Administrative Agent
or any Lender for the payment of any Other Taxes.
(c) Tax
Indemnifications. Without limiting the provisions of subsection (a) or (b) above, the Borrower shall indemnify
the Administrative Agent and each Lender, and shall make payment in respect thereof within 15 days after receipt of written demand therefor,
for the full amount of Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section 5.4) payable or paid by the Administrative Agent or such Lender, as the case may be,
and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly
or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of any such payment or liability
(along with a written statement setting forth in reasonable detail the basis and calculation of such amounts) delivered to the Borrower
by a Lender, or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. If
the Borrower reasonably believes that any such Indemnified Taxes or Other Taxes were not correctly or legally asserted, the Administrative
Agent and/or each affected Lender will use reasonable efforts to cooperate with the Borrower in pursuing a refund of such Indemnified
Taxes or Other Taxes so long as such efforts would not, in the sole determination of the Administrative Agent or affected Lender, result
in any additional costs, expenses or risks or be otherwise disadvantageous to it.
(d) Evidence
of Payments. After any payment of Taxes by any Credit Party or the Administrative Agent to a Governmental Authority as provided in
this Section 5.4, such Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy of any return required by laws to report such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Status
of Lenders and Tax Documentation.
(i) Each
Lender shall deliver to the Borrower and to the Administrative Agent, at such time or times reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation prescribed by applicable laws or by the taxing authorities of
any jurisdiction and such other reasonably requested information as will permit the Borrower or the Administrative Agent, as the case
may be, to determine (A) whether or not any payments made hereunder or under any other Credit Document are subject to Taxes, (B) if
applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available exemption from,
or reduction of, applicable Taxes in respect of any payments to be made to such Lender by any Credit Party pursuant to any Credit Document
or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction. Any documentation and
information required to be delivered by a Lender pursuant to this Section 5.4(e) (including any specific documentation
set forth in subsection (ii) below) shall be delivered by such Lender (i) on or prior to the Closing Date (or on or
prior to the date it becomes a party to this Agreement), (ii) on or before any date on which such documentation expires or becomes
obsolete or invalid, (iii) promptly after the occurrence of any change in the Lender’s circumstances requiring a change in
the most recent documentation previously delivered by it to the Borrower and the Administrative Agent, and (iv) from time to time
thereafter if reasonably requested by the Borrower or the Administrative Agent, and each such Lender shall promptly notify in writing
the Borrower and the Administrative Agent if such Lender is no longer legally eligible to provide any documentation previously provided.
Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation
(other than such documentation set forth in Section 5.4(e)(ii)(A), (B)(1), (B)(2), (B)(3), (B)(4),
(C) and (D) below) shall not be required if in such Lender’s or the Administrative Agent’s reasonable
judgment such completion, execution, or submission would subject such Lender or the Administrative Agent to any material unreimbursed
cost or expense or would materially prejudice the legal or commercial position of such Lender or the Administrative Agent.
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(ii) Without
limiting the generality of the foregoing:
(A) any
Lender that is a “United States person” within the meaning of Section 7701(a)(30)
of the Code (a “U.S. Lender”) shall deliver to the Borrower and the Administrative
Agent executed originals or copies of Internal Revenue Service Form W-9 or such other
documentation or information prescribed by applicable laws or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent,
as the case may be, to determine whether or not such Lender is subject to backup withholding
or information reporting requirements;
(B) each
Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower
and the Administrative Agent (in such number of copies as shall be requested by the Recipient)
whichever of the following is applicable:
(1) executed
originals or copies of Internal Revenue Service Form W-8BEN or Form W-8BEN-E (or any applicable successor form) claiming eligibility
for benefits of an income tax treaty to which the United States is a party;
(2) executed
originals or copies of Internal Revenue Service Form W-8ECI (or any successor form thereto);
(3) in
the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code,
(x) a certificate, substantially in the form of Exhibit J-1, J-2, J-3 or J-4, as applicable, (a
“Non-Bank Tax Certificate”), to the effect that such Non-U.S. Lender is not (A) a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, (B) a “10-percent shareholder” of the Borrower within the meaning
of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code and that no payments under any Credit Document are effectively connected with such Non-U.S. Lender’s conduct of a United
States trade or business and (y) executed originals or copies of Internal Revenue Service Form W-8BEN or Form W-8BEN-E
(or any applicable successor form);
(4) where
such Non-U.S. Lender is a partnership (for U.S. federal income tax purposes) or otherwise not a beneficial owner (e.g., where such Non-U.S.
Lender has sold a participation), Internal Revenue Service Form W 8IMY (or any successor thereto) and all required supporting
documentation (including, where one or more of the underlying beneficial owner(s) is claiming the benefits of the portfolio interest
exemption, a Non Bank Tax Certificate (substantially in the form of Exhibit J-2 or Exhibit J-3, as applicable) of such beneficial
owner(s)) (provided that, if the Non U.S. Lender is a partnership and not a participating Lender, the Non Bank Tax Certificate(s) (substantially
in the form of Exhibit J-4) may be provided by the Non U.S. Lender on behalf of the direct or indirect partner(s)); or
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(5) executed
originals of any other form prescribed by applicable laws as a basis for claiming exemption from or a reduction in U.S. federal withholding
tax together with such supplementary documentation as may be prescribed by applicable laws to permit the Borrower or the Administrative
Agent to determine the withholding or deduction required to be made;
(C) each
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 clause (C), “FATCA” shall include any amendments
made to FATCA after the date of this Agreement; and
(D) if
the Administrative Agent is a “United States person” (as defined in Section 7701(a)(30)
of the Code), it shall provide the Borrower with two duly completed copies of Internal Revenue
Service Form W-9. If the Administrative Agent is not a “United States person”
(as defined in Section 7701(a)(30) of the Code), it shall provide an original Internal
Revenue Service Form W-8IMY certifying on Part I and Part VI of such Form W-8IMY
that it is a U.S. branch that has agreed to be treated as a United States person for U.S.
federal withholding tax purposes with respect to payments received by it from the Borrower.
The Administrative Agent shall promptly notify the Borrower at any time it determines that
it is no longer in a position to provide the certification described in the prior sentence.
(iii) Notwithstanding
anything to the contrary in this Section 5.4, no Lender or the Administrative Agent shall be required to deliver any documentation
that it is not legally eligible to deliver.
(f) Treatment
of Certain Refunds. If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it
has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by any Credit Party or with respect
to which any Credit Party has paid additional amounts pursuant to this Section 5.4, the Administrative Agent or such Lender
(as applicable) shall promptly pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Credit Parties under this Section 5.4 with respect to the Indemnified Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses (including any Taxes) incurred by the Administrative Agent or such Lender,
as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund);
provided that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over
to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative
Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority.
In such event, the Administrative Agent or such Lender, as the case may be, shall, at the Borrower’s request, provide the Borrower
with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant taxing authority
(provided that the Administrative Agent or such Lender may delete any information therein that it deems confidential). Notwithstanding
anything to the contrary in this paragraph (f), in no event will the Administrative Agent or any Lender be required to pay any amount
to an indemnifying party pursuant to this paragraph (f) the payment of which would place the Administrative Agent or any Lender
in a less favorable net after-Tax position than the Administrative Agent or any Lender 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 subsection shall not be construed to require the Administrative Agent or any Lender
to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Credit Party or
any other Person.
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(g) For
the avoidance of doubt, for purposes of this Section 5.4, the term “Lender” includes any Letter of Credit Issuer
and the Swingline Lender and the term “applicable law” includes FATCA.
(h) Each
party’s obligations under this Section 5.4 shall survive the resignation or replacement of the Administrative Agent
or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all obligations under the Credit Documents.
5.5 Computations
of Interest and Fees.
(a) Interest
computed by reference to the Term SOFR Rate hereunder shall be computed on the basis of a year of 360 days. Interest computed by reference
to the ABR at times when the ABR is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year). In each case interest shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
All interest hereunder on any Loan shall be computed on a daily basis based upon the outstanding principal amount of such Loan as of
the applicable date of determination. The applicable ABR or Term SOFR Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
(b) Fees
and the average daily Stated Amount of Letters of Credit shall be calculated on the basis of a 360-day year for the actual days elapsed.
5.6 Limit
on Rate of Interest.
(a) No
Payment Shall Exceed Lawful Rate. Notwithstanding any other term of this Agreement, the Borrower shall not be obliged to pay any
interest or other amounts under or in connection with this Agreement or otherwise in respect of the Obligations in excess of the amount
or rate permitted under or consistent with any applicable law, rule or regulation.
(b) Payment
at Highest Lawful Rate. If the Borrower is not obliged to make a payment that it would otherwise be required to make, as a result
of Section 5.6(a), the Borrower shall make such payment to the maximum extent permitted by or consistent with applicable
laws, rules, and regulations.
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(c) Adjustment
if Any Payment Exceeds Lawful Rate. If any provision of this Agreement or any of the other Credit Documents would obligate the Borrower
to make any payment of interest or other amount payable to any Lender in an amount or calculated at a rate that would be prohibited by
any applicable law, rule or regulation, then notwithstanding such provision, such amount or rate shall be deemed to have been adjusted
with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law, such adjustment
to be effected, to the extent necessary, by reducing the amount or rate of interest required to be paid by the Borrower to the affected
Lender under Section 2.8; provided that to the extent lawful, the interest or other amounts that would have been payable
but were not payable as a result of the operation of this Section shall be cumulated and the interest payable to such Lender in
respect of other Loans or periods shall be increased (but not above such maximum rate or rate of interest therefor) until such cumulated
amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such
Lender.
Notwithstanding the foregoing,
and after giving effect to all adjustments contemplated thereby, if any Lender shall have received from the Borrower an amount in excess
of the maximum permitted by any applicable law, rule or regulation, then the Borrower shall be entitled, by notice in writing to
the Administrative Agent to obtain reimbursement from that Lender in an amount equal to such excess, and pending such reimbursement,
such amount shall be deemed to be an amount payable by that Lender to the Borrower.
Section 6.
Conditions Precedent to Initial Borrowing
The initial Borrowing under
this Agreement was subject to the satisfaction of conditions precedent that were satisfied as of December 18, 2013. The amendment
of this Agreement under the Tenth Amendment was subject to the satisfaction of conditions precedent that were satisfied as of May 4,
2026. The amendment of this Agreement under the Eleventh Amendment is subject to the satisfaction of the following conditions precedent,
except as otherwise agreed between Holdings and the Administrative Agent.
6.1 Credit
Documents.
The Administrative Agent
(or its counsel) shall have received the Eleventh Amendment, executed and delivered by a duly Authorized Officer of Holdings, a duly
Authorized Officer of the Borrower and each Lender party to the Eleventh Amendment;
6.2 [Reserved].
6.3 Legal
Opinions. The Administrative Agent (or its counsel) shall have received the executed legal opinion, in customary form, of K&L
Gates LLP, counsel to the Credit Parties, with respect to the Eleventh Amendment and the transactions contemplated thereby. Holdings
and the Borrower hereby instruct and agree to instruct the other Credit Parties to have such counsel deliver such legal opinion.
6.4 Closing
Certificates. The Administrative Agent (or its counsel) shall have received a certificate of each of Holdings and the Borrower, dated
the Eleventh Amendment Effective Date, substantially in the form of Exhibit E, with appropriate insertions, executed by the
President or any Vice President (or in the case of Holdings any Director or authorized agent of Holdings) and the Secretary or any Assistant
Secretary of Holdings or the Borrower (or in the case of Holdings any Director or authorized agent of Holdings), as applicable, and attaching
the documents referred to in Section 6.5.
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6.5 Authorization
of Proceedings of Holdings and the Borrower; Corporate Documents. The Administrative Agent shall have received (i) a copy of
the resolutions of the board of directors or other managers of Holdings and the Borrower (or a duly authorized committee thereof) authorizing
(a) the execution, delivery, and performance of the Eleventh Amendment (and any agreements relating thereto) to which it is a party
and (b) in the case of the Borrower, the extensions of credit contemplated hereunder, (ii) the Certificate of Incorporation
and By-Laws, Certificate of Formation and Operating Agreement or other comparable organizational documents, as applicable, of Holdings
and the Borrower, and (iii) signature and incumbency certificates (or other comparable documents evidencing the same) of the Authorized
Officers of Holdings and the Borrower executing the Eleventh Amendment.
6.6 Fees.
The Agents and Lenders shall have received, substantially simultaneously with the Eleventh Amendment, fees and, to the extent invoiced
at least three business days prior to the Eleventh Amendment Effective Date (except as otherwise reasonably agreed by the Borrower) expenses
in the amounts previously agreed in writing to be received on the Eleventh Amendment Effective Date.
6.7 Representations
and Warranties. On the Eleventh Amendment Effective Date, the representations in Section 8 shall be true and correct
in all material respects.
6.8 Solvency
Certificate. On the Eleventh Amendment Effective Date, the Administrative Agent shall have received a certificate from the Chief
Executive Officer, President, the Chief Financial Officer, the Treasurer, the Vice President-Finance, a Director, a Manager, or any other
senior financial officer of Holdings or the Borrower to the effect that after giving effect to the consummation of the Transactions,
Holdings on a consolidated basis with the Restricted Subsidiaries is Solvent.
6.9 Patriot
Act. (i) The Joint Lead Arrangers and Bookrunners shall have received at least two days prior to the Eleventh Amendment Effective
Date, such documentation and information as is reasonably requested in writing at least seven Business Days prior to the Eleventh Amendment
Effective Date by the Administrative Agent about the Credit Parties to the extent the Administrative Agent and Holdings in good faith
mutually agree is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and
regulations, including, without limitation, the Patriot Act and (ii) to the extent the Borrower qualifies as a “legal entity
customer” under the Beneficial Ownership Regulation, at least five days prior to the Eleventh Amendment Effective Date, any Joint
Lead Arrangers and Bookrunner that has requested, in a written notice to the Borrower at least 10 days prior to the Eleventh Amendment
Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification.
6.10 Financial
Statements. The Joint Lead Arrangers and Bookrunners shall have received the Historical Financial Statements.
6.11 No
Material Adverse Effect. Since September 30, 2025, there shall not have occurred any change, event, circumstance or development
that shall have had or would reasonably be likely to have a Material Adverse Effect.
For purposes of determining compliance with the
conditions specified in Section 6 on the Closing Date, 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. For purposes of determining compliance with the conditions specified in Section 6
on the Eleventh Amendment Effective Date, each Lender that has signed the Eleventh Amendment 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 Eleventh
Amendment Effective Date specifying its objection thereto.
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Section 7. Conditions
Precedent to All Credit Events
Subject to Section 1.12,
the agreement of each Lender to make any Loan requested to be made by it on any date, including any New Term Loans and/or any Replacement
Term Loans (excluding Mandatory Borrowings and Revolving Credit Loans required to be made by the Revolving Credit Lenders in respect
of Unpaid Drawings pursuant to Sections 3.3 and 3.4) and the obligation of the Letter of Credit Issuer to issue Letters
of Credit on any date, is subject to the satisfaction (or waiver) of the following conditions precedent:
7.1 No
Default; Representations and Warranties. At the time of each Credit Event and also after giving effect thereto (other than any Credit
Event on the Closing Date or pursuant to any Loan made pursuant to Section 2.14 or 2.15 (which shall be subject to
the applicable terms of Section 2.14 or 2.15, as applicable)) (a) no Default or Event of Default shall have occurred
and be continuing and (b) all representations and warranties made by any Credit Party contained herein or in the other Credit Documents
shall be true and correct in all material respects (provided that any such representations and warranties which are qualified
by materiality, material adverse effect or similar language shall be true and correct in all respects) with the same effect as though
such representations and warranties had been made on and as of the date of such Credit Event (except where such representations and warranties
expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material
respects (provided that any such representations and warranties which are qualified by materiality, material adverse effect or
similar language shall be true and correct in all respects) as of such earlier date).
7.2 Notice
of Borrowing; Letter of Credit Request.
(a) Prior
to the making of each Term Loan after the Closing Date, the Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 2.3.
(b) Prior
to the making of each Revolving Credit Loan (other than any Revolving Credit Loan made pursuant to Section 3.4(a)) and each
Swingline Loan, the Administrative Agent shall have received a Notice of Borrowing meeting the requirements of Section 2.3.
(c) Prior
to the issuance of each Letter of Credit, the Administrative Agent and the Letter of Credit Issuer shall have received a Letter of Credit
Request meeting the requirements of Section 3.2(a).
The acceptance of the benefits of each Credit
Event shall constitute a representation and warranty by each Credit Party to each of the Lenders that all the applicable conditions specified
in Section 7 above have been satisfied as of that time.
Section 8. Representations
and Warranties
In order to induce the Lenders
to enter into this Agreement, to make the Loans and Swingline Loans and issue or participate in Letters of Credit as provided for herein,
Holdings and the Borrower make the following representations and warranties to the Lenders, all of which shall survive the execution
and delivery of this Agreement and the making of the Loans and Swingline Loans and the issuance of the Letters of Credit (it being understood
that the following representations and warranties shall be deemed made with respect to any Foreign Subsidiary only to the extent relevant
under applicable law):
8.1 Corporate
Status. Each Credit Party (a) is a duly organized and/or incorporated validly existing corporation, limited liability company
or other entity in good standing (if applicable) under the laws of the jurisdiction of its organization and/or incorporation and has
the corporate, limited liability company or other organizational power and authority to own its property and assets and to transact the
business in which it is engaged and (b) has duly qualified and is authorized to do business and is in good standing (if applicable)
in all jurisdictions where it is required, to be so qualified, except where the failure to be so qualified would not reasonably be expected
to result in a Material Adverse Effect.
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8.2 Corporate
Power and Authority. Each Credit Party has the corporate or other organizational power and authority to execute, deliver and carry
out the terms and provisions of the Credit Documents to which it is a party and has taken all necessary corporate or other organizational
action to authorize the execution, delivery and performance of the Credit Documents to which it is a party. Each Credit Party has duly
executed and delivered each Credit Document to which it is a party and each such Credit Document constitutes the legal, valid, and binding
obligation of such Credit Party enforceable in accordance with its terms (provided that, with respect to the creation and perfection
of security interests with respect to Indebtedness, Capital Stock and Stock Equivalents of Foreign Subsidiaries, only to the extent enforceability
of such obligation with respect to which Capital Stock and Stock Equivalents of Foreign Subsidiaries is governed by the Uniform Commercial
Code), except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights
generally and subject to general principles of equity.
8.3 No
Violation. Neither the execution, delivery or performance by any Credit Party of the Credit Documents to which it is a party nor
compliance with the terms and provisions thereof nor the consummation of the Transactions and the other transactions contemplated hereby
or thereby will (a) contravene any applicable provision of any material law, statute, rule, regulation, order, writ, injunction
or decree of any court or governmental instrumentality, (b) result in any breach of any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any
of the property or assets of such Credit Party or any of the Restricted Subsidiaries (other than Liens created under the Credit Documents
or Permitted Liens) pursuant to, the terms of any material indenture, loan agreement, lease agreement, mortgage, deed of trust, agreement
or other material instrument to which such Credit Party or any of the Restricted Subsidiaries is a party or by which it or any of its
property or assets is bound (any such term, covenant, condition or provision, a “Contractual Requirement”) other than
any such breach, default or Lien that would not reasonably be expected to result in a Material Adverse Effect or (c) violate any
provision of the certificate of incorporation, by-laws, articles or other organizational documents of such Credit Party or any of the
Restricted Subsidiaries.
8.4 Litigation.
There are no actions, suits or proceedings pending or, to the knowledge of Holdings or the Borrower, threatened in writing against Holdings,
the Borrower or any of the Restricted Subsidiaries that would reasonably be expected to result in a Material Adverse Effect.
8.5 Margin
Regulations. Neither the making of any Loan hereunder nor the use of the proceeds thereof will violate the provisions of Regulation
T, U or X of the Federal Reserve Board.
8.6 Governmental
Approvals. The execution, delivery and performance of each Credit Document does not require any consent or approval of, registration
or filing with, or other action by, any Governmental Authority, except for (i) such as have been obtained or made and are in full
force and effect, (ii) filings, consents, approvals, registrations and recordings in respect of the Liens created pursuant to the
Security Documents (and to release existing Liens), and (iii) such licenses, approvals, authorizations, registrations, filings or
consents the failure of which to obtain or make would not reasonably be expected to result in a Material Adverse Effect.
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8.7 Investment
Company Act. None of Holdings, the Borrower, or any other Restricted Subsidiary is an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
8.8 True
and Complete Disclosure.
(a) None
of the written factual information and written data (taken as a whole) heretofore or contemporaneously furnished by or on behalf of Holdings,
the Borrower, any of the other Restricted Subsidiaries or any of their respective authorized representatives to the Administrative Agent,
any Joint Lead Arranger and Bookrunner, and/or any Lender on or before the Eleventh Amendment Effective Date with respect to the Eleventh
Amendment (including all such written information and data contained in (i) the Lender Presentation (as updated prior to the Eleventh
Amendment Effective Date and including all information incorporated by reference therein) and (ii) the Credit Documents) for purposes
of or in connection with this Agreement or any transaction contemplated herein was, when furnished, incorrect in any material respect
or contained any untrue statement of any material fact or omitted to state any material fact necessary to make such information and data
(taken as a whole) not materially misleading at such time in light of the circumstances under which such information or data was furnished
(after giving effect to all supplements and updates), it being understood and agreed that for purposes of this Section 8.8(a),
such factual information and data shall not include pro forma financial information, projections, estimates (including financial
estimates, forecasts, and other forward-looking information) or other forward looking information and information of a general economic
or general industry nature.
(b) The
projections (including financial estimates, forecasts, and other forward-looking information) contained in the information and data referred
to in paragraph (a) above were based on good faith estimates and assumptions believed by such Persons to be reasonable at
the time made, it being recognized by the Lenders that such projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ from the projected results and such differences may be
material.
8.9 Financial
Condition; Financial Statements.
(a) The
Historical Financial Statements, in each case present fairly in all material respects the combined financial position of Holdings at
the respective dates of said information, statements and results of operations for the respective periods covered thereby. The financial
statements referred to in this Section 8.9(a) have been prepared in accordance with GAAP consistently applied except
to the extent provided in the notes to said financial statements.
(b) There
has been no Material Adverse Effect since the September 30, 2025.
Each Lender and the Administrative Agent hereby
acknowledges and agrees that Holdings and its Subsidiaries may be required to restate historical financial statements as the result of
the implementation of changes in GAAP or IFRS, or the respective interpretation thereof, and that such restatements will not result in
a Default or an Event of Default under the Credit Documents.
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8.10 Compliance
with Laws; No Default. Each Credit Party and, with respect to clauses (a)(i), (a)(ii) and (b) of this
Section 8.10, to the knowledge of such Credit Parties, each of their respective directors, officers, employees or agents,
(a) is in compliance with all Requirements of Law applicable to it or its property, except, in each case, where the failure to be
in compliance would not reasonably be expected to result in a Material Adverse Effect including without limitation, the Patriot Act and
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), including (i) regulations administered by the United States Treasury Department’s
Office of Foreign Assets Control (“OFAC”) and any other enabling legislation or executive order relating thereto and
(ii) the United States Foreign Corrupt Practices Act of 1977 as amended, and the rules and regulations promulgated thereunder
(collectively, the “FCPA”), (b) is not (i) currently the subject or target of any Sanctions, (ii) included
on OFAC’s List of Specially Designated nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment
Ban List, or any similar list enforced by any other relevant sanctions authority or (iii) located, organized or resident in a Designated
Jurisdiction, (c) is in compliance with the FCPA and, to the extent applicable, other similar anti-corruption and anti-bribery legislation
in other applicable jurisdictions (collectively, the “Anti-Corruption Laws”) and have instituted and maintained policies
and procedures designed to promote and achieve compliance with the Anti-Corruption Laws, except, in each case, where the failure to be
in compliance with the Anti-Corruption Laws would not reasonably be expected to result in a Material Adverse Effect, and (d) except
where the failure to be in compliance would not reasonably be expected to result in a Material Adverse Effect, is in compliance with
the Anti-Money Laundering Laws. No Default has occurred and is continuing.
8.11 Tax
Matters. Except as would not reasonably be expected to have a Material Adverse Effect, (a) each of Holdings, the Borrower and
each of the other Restricted Subsidiaries has filed all Tax returns required to be filed by it and has timely paid all Taxes payable
by it (whether or not shown on a Tax return and including in its capacity as Withholding Agent) that have become due, other than those
being contested in good faith and by proper proceedings if it has maintained adequate reserves (in the good faith judgment of management
of Holdings, the Borrower or such Restricted Subsidiary, as applicable) with respect thereto in accordance with GAAP and it can lawfully
withhold such payment and (b) each of Holdings, the Borrower and each of the Restricted Subsidiaries has paid, or has provided adequate
reserves (in the good faith judgment of management of Holdings, the Borrower or such Restricted Subsidiary, as applicable) in accordance
with GAAP for the payment of all Taxes not yet due and payable. There is no current or proposed Tax assessment, deficiency or other claim
against Holdings, the Borrower or any Restricted Subsidiary that would reasonably be expected to result in a Material Adverse Effect.
8.12 Compliance
with ERISA.
(a) Except
as would not reasonably be expected to have a Material Adverse Effect, no ERISA Event has occurred or is reasonably expected to occur.
(b) Except
as would not reasonably be expected to have a Material Adverse Effect, no Foreign Plan Event has occurred or is reasonably expected to
occur.
8.13 Subsidiaries.
Schedule 8.13 lists each Subsidiary of Holdings and the Borrower (and the direct and indirect ownership interest of Holdings and
the Borrower therein), in each case existing on the Closing Date.
8.14 Intellectual
Property. Each of Holdings, the Borrower and the other Restricted Subsidiaries owns or has the right to use all Intellectual Property
that is used in or otherwise necessary for the operation of their respective businesses as currently conducted, except where the failure
of the foregoing would not reasonably be expected to have a Material Adverse Effect. To the knowledge of Holdings and the Borrower, the
operation of their respective businesses by each of Holdings, the Borrower, and the other Restricted Subsidiaries does not infringe upon,
misappropriate, violate or otherwise conflict with the Intellectual Property of any third party, except as would not reasonably be expected
to have a Material Adverse Effect.
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8.15 Environmental
Laws.
(a) Except
as set forth on Schedule 8.15, or as would not reasonably be expected to have a Material Adverse Effect: (i) each of Holdings,
the Borrower, and the other Restricted Subsidiaries and their respective operations and properties are in compliance with all applicable
Environmental Laws; (ii) none of Holdings, the Borrower, or any other Restricted Subsidiary has received written notice of any Environmental
Claim; and (iii) none of Holdings, the Borrower, or any Restricted Subsidiary is conducting any investigation, removal, remedial
or other corrective action pursuant to any Environmental Law at any location.
(b) Except
as set forth on Schedule 8.15, none of Holdings, the Borrower or any of the Restricted Subsidiaries has treated, stored, transported,
released or arranged for disposal or transport for disposal or treatment of Hazardous Materials at, on, under or from any currently or,
formerly owned or operated property nor, to the knowledge of the Borrower, has there been any other Release of Hazardous Materials at,
on, under or from any such properties, in each case, in a manner that would reasonably be expected to have a Material Adverse Effect.
8.16 Properties.
(a) (i) Each
of Holdings, the Borrower, and the other Restricted Subsidiaries has good and valid record title to, valid leasehold interests in, or
rights to use, all properties that are necessary for the operation of their respective businesses as currently conducted and as proposed
to be conducted, free and clear of all Liens (other than any Liens permitted by this Agreement) and except where the failure to have
such good title or interest would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and
(ii) no Mortgage encumbers improved Real Estate that is located in an area that has been identified by the Secretary of Housing
and Urban Development as an area having special flood hazards within the meaning of the Flood Insurance Laws unless flood insurance available
under such Flood Insurance Laws has been obtained in accordance with Section 9.3(b).
(b) Set
forth on Schedule 1.1(a) is a list of each real property owned by any Credit Party as of the Closing Date having a Fair Market
Value in excess of the greater of (x) $30,000,000 and (y) 10% of Consolidated EBITDA for the most recently ended Test Period.
8.17 Solvency.
On the Eleventh Amendment Effective Date (after giving effect to the Transactions) immediately following the making of the Loans and
after giving effect to the application of the proceeds of such Loans, Holdings on a consolidated basis with the Restricted Subsidiaries
will be Solvent.
8.18 Patriot
Act. The use of proceeds of the Loans, Letters of Credit and/or Swingline Loans will not result in a violation of the Patriot Act
or any Anti-Money Laundering Laws, Sanctions or Anti-Corruption Laws in any material respect.
8.19 Anti-Corruption
Laws and Sanctions and Anti-Money Laundering Laws. Holdings has implemented and maintains in effect (or is subject to) policies and
procedures reasonably designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees
and agents with Anti-Corruption Laws and applicable Sanctions and Anti-Money Laundering Laws, and the Borrower, its Subsidiaries and
their respective directors and officers, and to the knowledge of the Borrower its employees and agents, are in compliance with Anti-Corruption
Laws and applicable Sanctions and Anti-Money Laundering Laws in all material respects and are not knowingly engaged in any activity that
would reasonably be expected to result in the Borrower being designated as a Sanctioned Person or to be in violation of Anti-Money Laundering
Laws. None of (a) the Borrower, any Subsidiary or to the knowledge of the Borrower or such Subsidiary any of their respective directors,
officers or employees, or (b) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any
capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person or in violation of Anti-Money
Laundering Laws. No Loan, use of proceeds or other transaction contemplated by this Agreement will violate any Anti-Corruption Law or
applicable Sanctions or Anti-Money Laundering Laws.
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Section 9. Affirmative
Covenants.
Each of Holdings and the
Borrower hereby covenants and agrees that on the Closing Date and thereafter, until the Termination Date:
9.1 Information
Covenants. The Borrower will furnish to the Administrative Agent (which shall promptly make such information available to the Lenders
in accordance with its customary practice):
(a) Annual
Financial Statements. As soon as available and in any event within five days after the date on which such financial statements are
required to be filed with the SEC (after giving effect to any permitted extensions) (or, if such financial statements are not required
to be filed with the SEC, on or before the date that is 105 days after the end of each such fiscal year), the consolidated balance sheets
of Holdings and the Restricted Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations
and cash flows for such fiscal year, setting forth comparative consolidated and/or combined figures for the preceding fiscal years, all
in reasonable detail and prepared in accordance with GAAP, and, in each case, certified by independent certified public accountants of
recognized national standing whose opinion shall not be qualified as to the scope of audit or as to the status of Holdings or any of
the Material Subsidiaries (or group of Subsidiaries that together would constitute a Material Subsidiary) as a going concern (other than
any exception, explanatory paragraph or qualification, that is expressly solely with respect to, or expressly resulting solely from,
(i) an upcoming maturity date under any Indebtedness, (ii) any actual or potential inability to satisfy a financial maintenance
covenant at such time or on a future date or in a future period or (iii) the activities, operations, financial results, assets or
liabilities of any Unrestricted Subsidiary).
(b) Quarterly
Financial Statements. As soon as available and in any event within five days after the date on which such financial statements are
required to be filed with the SEC (after giving effect to any permitted extensions) with respect to each of the first three quarterly
accounting periods in each fiscal year of Holdings (or, if such financial statements are not required to be filed with the SEC, on or
before the date that is 60 days after the end of each such quarterly accounting period), the consolidated balance sheets of Holdings
and the Restricted Subsidiaries as at the end of such quarterly period and the related consolidated statements of operations for such
quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and the
related consolidated statement of cash flows for such quarterly accounting period, and setting forth comparative consolidated and/or
combined figures for the related periods in the prior fiscal year or, in the case of such consolidated balance sheet, for the last day
of the related period in the prior fiscal year, all of which shall be certified by an Authorized Officer of Holdings as fairly presenting
in all material respects the financial condition, results of operations and cash flows of Holdings and its Restricted Subsidiaries in
accordance with GAAP (except as noted therein), subject to changes resulting from normal year-end adjustments and the absence of footnotes.
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(c) [Reserved].
(d) Officer’s
Certificates. Not later than five days after the delivery of the financial statements provided for in Sections 9.1(a) and
(b), a certificate of an Authorized Officer of Holdings or the Borrower to the effect that no Default or Event of Default exists
or, if any Default or Event of Default does exist, specifying the nature and extent thereof, as the case may be, which certificate shall
set forth (i) a specification of any change in the identity of the Restricted Subsidiaries and Unrestricted Subsidiaries as at the
end of such fiscal year or period, as the case may be, from the Restricted Subsidiaries and Unrestricted Subsidiaries, respectively,
provided to the Lenders on the Closing Date or the most recent fiscal year or period, as the case may be and (ii) the then applicable
Status and underlying calculations in connection therewith. At the time of the delivery of the financial statements provided for in Section 9.1(a),
a certificate of an Authorized Officer of Holdings or the Borrower setting forth changes to the legal name, jurisdiction of formation,
type of entity and organizational number (or equivalent) to the Person organized in a jurisdiction where an organizational identification
number is required to be included in a Uniform Commercial Code financing statement, in each case for each Credit Party or confirming
that there has been no change in such information since the Closing Date or the date of the most recent certificate delivered pursuant
to this clause (d), as the case may be.
(e) Notice
of Default or Litigation. Promptly after an Authorized Officer of Holdings or any of the Restricted Subsidiaries obtains knowledge
thereof, notice of (i) the occurrence of any event that constitutes a Default or Event of Default, which notice shall specify the
nature thereof, the period of existence thereof and what action Holdings proposes to take with respect thereto and (ii) any litigation
or governmental proceeding pending against Holdings or any of the Restricted Subsidiaries that would reasonably be expected to be determined
adversely and, if so determined, to result in a Material Adverse Effect.
(f) Environmental
Matters. Promptly after an Authorized Officer of Holdings or any of the Restricted Subsidiaries obtains knowledge of any one or more
of the following environmental matters, unless such environmental matters would not reasonably be expected to result in a Material Adverse
Effect, notice of:
(i) any
pending or threatened Environmental Claim against any Credit Party or any Real Estate; and
(ii) the
conduct of any investigation, or any removal, remedial or other corrective action in response to the actual or alleged presence, Release
or threatened Release of any Hazardous Material on, at, under or from any Real Estate.
All such notices shall describe in
reasonable detail the nature of the claim, investigation or removal, remedial or other corrective action in response thereto. The term
“Real Estate” shall mean land, buildings, facilities and improvements owned or leased by any Credit Party.
(g) Other
Information. Promptly upon filing thereof, copies of any filings (including on Form 10-K, 10-Q or 8-K) or registration statements
(other than drafts of pre effective versions of registration statements)with, and reports to, the SEC or any analogous Governmental Authority
with respect to the publicly issued debt of Holdings in any relevant jurisdiction by Holdings or any of the Restricted Subsidiaries (other
than amendments to any registration statement (to the extent such registration statement, in the form it becomes effective, is delivered
to the Administrative Agent), exhibits to any registration statement and, if applicable, any registration statements on Form S-8)
and copies of all financial statements, proxy statements, notices, and reports that Holdings or any of the Restricted Subsidiaries shall
send to the holders of any publicly issued debt of Holdings and/or any of the Restricted Subsidiaries, in their capacity as such holders,
lenders or agents (in each case to the extent not theretofore delivered to the Administrative Agent pursuant to this Agreement) and,
with reasonable promptness, such other information (financial or otherwise) as the Administrative Agent on its own behalf or on behalf
of any Lender (acting through the Administrative Agent) may reasonably request in writing from time to time; provided, that none
of Holdings, the Borrower nor any other Restricted Subsidiary will be required to disclose or permit the inspection or discussion of,
any document, information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information,
(ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective contractors) is prohibited by
law, or any binding agreement, (iii) that is subject to attorney client or similar privilege or constitutes attorney work product
or (iv) that is otherwise subject to Section 13.16 or the limitations set forth in Section 9.2.
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Notwithstanding the foregoing,
the obligations in clauses (a) and (b) of this Section 9.1 may be satisfied with respect to financial
information of Holdings and the Restricted Subsidiaries by furnishing (A) the applicable financial statements of the Borrower or
any direct or indirect parent of Holdings or (B) Holdings’ (or any direct or indirect parent thereof), as applicable, Form 10-K
or 10-Q, as applicable, filed with the SEC; provided that, with respect to each of subclauses (A) and (B) of
this paragraph, to the extent such information relates to a parent of Holdings, such information is accompanied by consolidating or other
information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and
the information relating to Holdings and the Restricted Subsidiaries on a standalone basis, on the other hand.
Documents required to be
delivered pursuant to clauses (a), (b), and (g) of this Section 9.1 (to the extent any such documents
are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have
been delivered on the earliest date on which (i) Holdings posts such documents, or provides a link thereto on Holdings’ website
on the Internet; (ii) such documents are posted on Holdings’ behalf on IntraLinks/IntraAgency or another 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), or (iii) such financial statements and/or other documents are posted on the SEC’s website on the internet
at www.sec.gov; provided, that, (A) the Borrower shall, at the request of the Administrative Agent, continue to deliver copies
(which delivery may be by electronic transmission ) of such documents to the Administrative Agent and (B) the Borrower shall notify
(which notification may be by facsimile or electronic transmission) the Administrative Agent of the posting of any such documents on
any website described in this paragraph. 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.
Each Credit Party hereby
acknowledges and agrees that, unless the Borrower notifies the Administrative Agent in advance, all financial statements and certificates
furnished pursuant to Sections 9.1(a), (b) and (d) above are hereby deemed to be suitable for distribution,
and to be made available, to all Lenders and may be treated by the Administrative Agent and the Lenders as not containing any material
nonpublic information.
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The Borrower will furnish
to the Administrative Agent and each applicable Lender, reasonably promptly following any request therefor, information and documentation,
if any, requested by the Administrative Agent or any Lender (through the Administrative Agent) required by such Person in order to comply
with the Beneficial Ownership Regulation.
9.2 Books,
Records, and Inspections. Holdings will, and will cause each Restricted Subsidiary to, permit officers and designated representatives
of the Administrative Agent or the Required Lenders to visit and inspect any of the properties or assets of Holdings and any such Subsidiary
in whomsoever’s possession to the extent that it is within such party’s control to permit such inspection (and shall use
commercially reasonable efforts to cause such inspection to be permitted to the extent that it is not within such party’s control
to permit such inspection), and to examine the books and records of Holdings and any such Subsidiary and discuss the affairs, finances
and accounts of Holdings and of any such Subsidiary with, and be advised as to the same by, its and their officers and independent accountants,
all at such reasonable times and intervals and to such reasonable extent as the Administrative Agent or the Required Lenders may desire
(and subject, in the case of any such meetings or advice from such independent accountants, to such accountants’ customary policies
and procedures); provided that, excluding any such visits and inspections during the continuation of an Event of Default, (a) only
the Administrative Agent on behalf of the Required Lenders may exercise rights of the Administrative Agent and the Lenders under this
Section 9.2, (b) the Administrative Agent shall not exercise such rights more than one time in any calendar year, which
such visit will be at Holdings’ expense, and (c) notwithstanding anything to the contrary in this Section 9.2,
none of Holdings or any of the Restricted Subsidiaries will be required to disclose, permit the inspection, examination or making copies
or abstracts of, or discussion of, any document, information or other matter that (i) constitutes non-financial trade secrets or
non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective
representatives or contractors) is prohibited by law or any binding agreement or (iii) is subject to attorney-client or similar
privilege or constitutes attorney work product; provided, further, that when an Event of Default exists, the Administrative
Agent (or any of its respective representatives or independent contractors) or any representative of the Required Lenders may do any
of the foregoing at the expense of Holdings at any time during normal business hours and upon reasonable advance notice. The Administrative
Agent and the Required Lenders shall give Holdings the opportunity to participate in any discussions with Holdings’ independent
public accountants.
9.3 Maintenance
of Insurance. (a) Holdings will, and will cause each Material Subsidiary to, at all times maintain in full force and effect,
pursuant to self-insurance arrangements or with insurance companies that Holdings believes (in the good faith judgment of the management
of Holdings) are financially sound and responsible at the time the relevant coverage is placed or renewed, insurance in at least such
amounts (after giving effect to any self-insurance which Holdings believes (in the good faith judgment of management of Holdings) is
reasonable and prudent in light of the size and nature of its business and the availability of insurance on a cost-effective basis) and
against at least such risks (and with such risk retentions) as Holdings believes (in the good faith judgment of management of Holdings)
is reasonable and prudent in light of the size and nature of its business and the availability of insurance on a cost-effective basis;
and will furnish to the Administrative Agent, promptly following written request from the Administrative Agent, information presented
in reasonable detail as to the insurance so carried and (b) with respect to each improved Mortgaged Property located in a special
flood hazard area, Holdings will obtain flood insurance in such total amount as required by the Flood Insurance Laws and shall otherwise
comply with the Flood Insurance Laws. Each such policy of insurance shall (i) name the Collateral Agent, on behalf of the Secured
Parties as an additional insured and loss payee thereunder as its interests may appear and (ii) in the case of each casualty insurance
policy, contain a lender’s loss payable clause or endorsement that names the Collateral Agent, on behalf of the Secured Parties
as the lender’s loss payee thereunder.
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9.4 Payment
of Taxes. Each of Holdings and the Borrower will pay and discharge or cause to be paid and discharged, and will cause each of the
Restricted Subsidiaries to pay and discharge, all material Taxes imposed upon it (including in its capacity as a withholding agent) or
upon its income or profits, or upon any properties belonging to it, prior to the date on which material penalties attach thereto, and
all lawful material claims in respect of any Taxes imposed, assessed or levied that, if unpaid, would reasonably be expected to become
a material Lien upon any properties of Holdings, the Borrower or any of the Restricted Subsidiaries; provided that none of Holdings,
the Borrower or any of the Restricted Subsidiaries shall be required to pay any such Tax that is being contested in good faith and by
proper proceedings if it has maintained adequate reserves (in the good faith judgment of management of Holdings, the Borrower or the
applicable Restricted Subsidiary) with respect thereto in accordance with GAAP, it can lawfully withhold such payment and the failure
to pay would not reasonably be expected to result in a Material Adverse Effect.
9.5 Preservation
of Existence; Consolidated Corporate Franchises. Holdings and the Borrower will, and will cause each Material Subsidiary to, take
all actions necessary (a) to preserve and keep in full force and effect its existence, organizational rights and authority and (b) to
maintain its rights, privileges (including its good standing (if applicable)), permits, licenses and franchises necessary in the normal
conduct of its business, in each case, except to the extent that the failure to do so would not reasonably be expected to have a Material
Adverse Effect; provided, however, that Holdings and its Subsidiaries may consummate any transaction permitted under Permitted
Investments and Sections 10.2, 10.3, 10.4, or 10.5.
9.6 Compliance
with Statutes, Regulations, Etc. Holdings will, and will cause each Restricted Subsidiary to, (a) comply with all applicable
laws, rules, regulations, and orders applicable to it or its property, including, without limitation, all Sanctions, Anti-Corruption
Laws and Anti-Money Laundering Laws, and all governmental approvals or authorizations required to conduct its business, and to maintain
all such governmental approvals or authorizations in full force and effect, (b) maintain in effect and enforce (or subject to) policies
and procedures reasonably designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers,
employees and agents with Anti-Corruption Laws and applicable Sanctions and Anti-Money Laundering Laws, (c) comply with, and use
commercially reasonable efforts to ensure compliance by all tenants and subtenants, if any, with, all Environmental Laws, and obtain
and comply with and maintain, and use commercially reasonable efforts to ensure that all tenants and subtenants obtain and comply with
and maintain, any and all licenses, approvals, notifications, registrations or permits required by Environmental Laws, and (d) conduct
and complete all investigations, studies, sampling and testing, and all remedial, removal, and other actions required under Environmental
Laws and promptly comply with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws, other than
such orders and directives which are being timely contested in good faith by proper proceedings, except in each case of (a), (c),
and (d) of this Section 9.6, where the failure to do so would not reasonably be expected to result in a Material
Adverse Effect.
9.7 ERISA.
Where applicable, (a) Holdings will furnish to the Administrative Agent promptly following receipt thereof, copies of any documents
described in Sections 101(k) or 101(l) of ERISA that any Credit Party or any of its Subsidiaries may request with respect to
any Multiemployer Plan to which a Credit Party or any of its Subsidiaries is obligated to contribute; provided that if the Credit
Parties or any of their Subsidiaries have not requested such documents or notices from the administrator or sponsor of the applicable
Multiemployer Plan, then, upon reasonable request of the Administrative Agent, the applicable Credit Party or Subsidiary shall promptly
make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents
and notices to the Administrative Agent promptly after receipt thereof; and further provided, that the rights granted to the Administrative
Agent in this Section shall be exercised not more than once during a 12-month period, and (b) Holdings will notify the Administrative
Agent promptly following the occurrence of any ERISA Event or Foreign Plan Event that, alone or together with any other ERISA Events
or Foreign Plan Events that have occurred, would reasonably be expected to result in liability of any Credit Party that would reasonably
be expected to have a Material Adverse Effect.
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9.8 Maintenance
of Properties. Holdings will, and will cause each of the Restricted Subsidiaries to, keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and tear, casualty, and condemnation excepted, except to the
extent that the failure to do so would not reasonably be expected to have a Material Adverse Effect.
9.9 Transactions
with Affiliates. Holdings will conduct, and cause each of the Restricted Subsidiaries to conduct, all transactions with any of its
Affiliates (other than Holdings and the Restricted Subsidiaries) involving aggregate payments or consideration in excess of the greater
of (x) $25,000,000 and (y) 8.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis)
at the time of such Affiliate transaction for any individual transaction or series of related transactions on terms that are at least
substantially as favorable to Holdings or such Restricted Subsidiary as it would obtain in a comparable arm’s-length transaction
with a Person that is not an Affiliate, as determined by the board of directors of Holdings or such Restricted Subsidiary in good faith;
provided that the foregoing restrictions shall not apply to (a) the payment of fees to the Sponsor for management, consulting,
and financial services rendered to Holdings and the Restricted Subsidiaries pursuant to the Sponsor Management Agreement and customary
investment banking fees paid to the Sponsor for services rendered to Holdings and the Subsidiaries in connection with divestitures, acquisitions,
financings and other transactions which payments are approved by a majority of the board of directors of Holdings in good faith, (b) transactions
permitted by Section 10.3 and Section 10.5, (c) consummation of the Transactions and the payment of the
Transaction Expenses, (d) the issuance of Capital Stock or Stock Equivalents of Holdings (or any direct or indirect parent thereof)
or any of its Subsidiaries not otherwise prohibited by the Credit Documents, (e) loans, advances and other transactions between
or among Holdings, any Restricted Subsidiary or any joint venture (regardless of the form of legal entity) in which Holdings or any Subsidiary
has invested (and which Subsidiary or joint venture would not be an Affiliate of Holdings but for Holdings’ or a Subsidiary’s
ownership of Capital Stock or Stock Equivalents in such joint venture or Subsidiary) to the extent permitted under Section 10,
(f) employment and severance arrangements between Holdings and the Restricted Subsidiaries and their respective officers, employees
or consultants (including management and employee benefit plans or agreements, stock option plans and other compensatory arrangements)
in the ordinary course of business (including loans and advances in connection therewith), (g) payments by Holdings (and any direct
or indirect parent thereof) and the Subsidiaries pursuant to the tax sharing agreements among Holdings (and any such parent) and the
Subsidiaries that are permitted under Section 10.5(b)(15); provided that in each case the amount of such payments
in any fiscal year does not exceed the amount that Holdings, the Restricted Subsidiaries and the Unrestricted Subsidiaries (to the extent
of the amount received from Unrestricted Subsidiaries) would have been required to pay in respect of such foreign, federal, state and/or
local taxes for such fiscal year had Holdings, the Restricted Subsidiaries and the Unrestricted Subsidiaries (to the extent described
above) paid such taxes separately from any such direct or indirect parent company of Holdings, (h) the payment of customary fees
and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers, consultants, officers, employees of
Holdings (or any direct or indirect parent thereof) and the Subsidiaries in the ordinary course of business to the extent attributable
to the ownership or operation of Holdings and the Subsidiaries, (i) transactions undertaken pursuant to membership in a purchasing
consortium, (j) transactions pursuant to any agreement or arrangement as in effect as of the Closing Date or the Ninth Amendment
Effective Date, or any amendment, modification, supplement or replacement thereto (so long as any such amendment, modification, supplement
or replacement is not disadvantageous in any material respect to the Lenders when taken as a whole as compared to the applicable agreement
as in effect on the Closing Date or the Eleventh Amendment Effective Date as determined by the Borrower in good faith), (k) customary
payments by Holdings (or any direct or indirect parent) and any Restricted Subsidiaries to the Sponsor 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), (l) the existence and performance of agreements and transactions with any Unrestricted Subsidiary
that were entered into prior to the designation of a Restricted Subsidiary as such Unrestricted Subsidiary to the extent that the transaction
was permitted at the time that it was entered into with such Restricted Subsidiary and transactions entered into by an Unrestricted Subsidiary
with an Affiliate prior to the redesignation of any such Unrestricted Subsidiary as a Restricted Subsidiary; provided that such transaction
was not entered into in contemplation of such designation or redesignation, as applicable, (m) Affiliate repurchases of the Loans
or Commitments to the extent permitted hereunder and the holding of such Loans or Commitments and the payments and other transactions
contemplated herein in respect thereof, and (n) any customary transactions with a Receivables Subsidiary effected as part of a Receivables
Facility.
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9.10 End
of Fiscal Years. Holdings will, for financial reporting purposes, cause each of its, and each of the Restricted Subsidiaries’,
fiscal years to end on dates consistent with past practice; provided, however, that Holdings may, upon written notice to
the Administrative Agent change the financial reporting convention specified above to (x) align the dates of such fiscal year and
for any Restricted Subsidiary whose fiscal years end on dates different from those of Holdings or (y) any other financial reporting
convention reasonably acceptable to the Administrative Agent, in which case Holdings and the Administrative Agent will, and are hereby
authorized by the Lenders to, make any adjustments to this Agreement that are necessary in order to reflect such change in financial
reporting.
9.11 Additional
Guarantors and Grantors. Subject to any applicable limitations set forth in the Security Documents, Holdings will cause each direct
or indirect Subsidiary (other than any Excluded Subsidiary) formed or otherwise purchased or acquired after the Closing Date (including
pursuant to a Permitted Acquisition), and each other Subsidiary that ceases to constitute an Excluded Subsidiary, within 60 days from
the date of such formation, acquisition or cessation, as applicable (or such longer period as the Administrative Agent may agree in its
reasonable discretion), and Holdings may at its option cause any Subsidiary, to execute a supplement to each of the Guarantee, the Pledge
Agreement and the Security Agreement in order to become a Guarantor under the Guarantee and a grantor under such Security Documents or,
to the extent reasonably requested by the Collateral Agent, enter into a new Security Document substantially consistent with the analogous
existing Security Documents and otherwise in form and substance reasonably satisfactory to the Collateral Agent and take all other action
reasonably requested by the Collateral Agent to grant a perfected security interest in its assets to substantially the same extent as
created by the Credit Parties on the Closing Date. For the avoidance of doubt, no Credit Party (other than Holdings) or any Domestic
Restricted Subsidiary shall be required to take any action outside the United States to perfect any security interest in the Collateral
(including the execution of any agreement, document or other instrument governed by the law of any jurisdiction other than the United
States, any State thereof or the District of Columbia).
9.12 Pledge
of Additional Stock and Evidence of Indebtedness. Subject to any applicable limitations set forth in the Security Documents and other
than (x) when in the reasonable determination of the Administrative Agent and the Borrower (as agreed to in writing), the cost or
other consequences of doing so would be excessive in view of the benefits to be obtained by the Secured Parties therefrom or (y) to
the extent doing so would result in material adverse tax consequences as reasonably determined by the Borrower in consultation with the
Administrative Agent, Holdings will cause (i) all certificates representing Capital Stock and Stock Equivalents of any Restricted
Subsidiary (other than any Excluded Stock and Stock Equivalents) held directly by Holdings or any other Credit Party, (ii) all evidences
of Indebtedness in excess of the greater of (a) $30,000,000 and (b) 10% of Consolidated EBITDA for the most recently ended
Test Period (calculated on a Pro Forma Basis) at the time of any disposition of assets pursuant to Section 10.4(b) received
by Holdings, the Borrower or any of the Guarantors in connection with any disposition of assets pursuant to Section 10.4(b),
and (iii) any promissory notes executed after the Closing Date evidencing Indebtedness in excess of the greater of (a) $20
million and (b) 10% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time
such promissory note is executed of Holdings or any Subsidiary that is owing to Holdings or any other Credit Party, in each case, to
be delivered to the Collateral Agent as security for the Obligations accompanied by undated instruments of transfer executed in blank
pursuant to the terms of the Security Documents. Notwithstanding the foregoing any promissory note among Holdings and/or its Subsidiaries
need not be delivered to the Collateral Agent so long as (i) a global intercompany note superseding such promissory note has been
delivered to the Collateral Agent, (ii) such promissory note is not delivered to any other party other than Holdings or any other
Credit Party, in each case, owed money thereunder, and (iii) such promissory note indicates on its face that it is subject to the
security interest of the Collateral Agent.
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9.13 Use
of Proceeds.
(a) The
Borrower will use the proceeds of the Initial Term Loans and cash on hand to effect the Transactions.
(b) The
Borrower will use Letters of Credit, Revolving Loans and Swingline Loans for working capital and general corporate purposes (including
any transaction not prohibited by the Credit Documents).
9.14 Further
Assurances.
(a) Subject
to the terms of Sections 9.11 and 9.12, this Section 9.14 and the Security Documents, Holdings will, and will
cause each other Credit Party to, execute any and all further documents, financing statements, agreements, and instruments, and take
all such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust, and
other documents) that may be required under any applicable law, or that the Collateral Agent or the Required Lenders may reasonably request,
in order to grant, preserve, protect, and perfect the validity and priority of the security interests created or intended to be created
by the applicable Security Documents, all at the expense of Holdings and the Restricted Subsidiaries.
(b) Subject
to any applicable limitations set forth in the Security Documents and other than (x) when in the reasonable determination of the
Administrative Agent and Holdings (as agreed to in writing), the cost or other consequences of doing so would be excessive in view of
the benefits to be obtained by the Secured Parties therefrom (including, without limitation, the cost of title insurance, surveys or
flood insurance) or (y) to the extent doing so would result in material adverse tax consequences as reasonably determined by the
Borrower in consultation with the Administrative Agent, if any assets (other than Excluded Property) (including any real estate or improvements
thereto or any interest therein but excluding Capital Stock and Stock Equivalents of any Subsidiary and excluding any real estate which
the Borrower or applicable Credit Party intends to dispose of pursuant to a Permitted Sale Leaseback so long as actually disposed of
within 270 days of acquisition (or such longer period as the Administrative Agent may reasonably agree)) with a Fair Market Value in
excess of the greater of (x) $40,000,000 and (y) 10% of Consolidated EBITDA for the most recently ended Test Period (calculated
on a Pro Forma Basis) (at the time of acquisition) are acquired by Holdings or any other Credit Party after the Closing Date (other than
assets constituting Collateral under a Security Document that become subject to the Lien of the applicable Security Document upon acquisition
thereof) that are of a nature secured by a Security Document or that constitute a fee interest in real property in the United States,
Holdings will notify the Collateral Agent, and, if requested by the Collateral Agent, Holdings will cause such assets to be subjected
to a Lien securing the Obligations (provided, however, that in the event any Mortgage delivered pursuant to this clause (b) shall
incur any mortgage recording tax or similar charges in connection with the recording thereof, such Mortgage shall not secure an amount
in excess of the Fair Market Value of the applicable Mortgaged Property) and will take, and cause the other applicable Credit Parties
to take, such actions as shall be necessary or reasonably requested by the Collateral Agent, as soon as commercially reasonable but in
no event later than 90 days, unless waived or extended by the Administrative Agent in its reasonable discretion, to grant and perfect
such Liens consistent with the applicable requirements of the Security Documents, including actions described in clause (a) of
this Section 9.14.
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(c) Any
Mortgage delivered to the Administrative Agent in accordance with the preceding clause (b) shall, if requested by the Collateral
Agent, be received as soon as commercially reasonable but in no event later than 90 days (except as set forth in the preceding clause
(b)), unless waived or extended by the Administrative Agent acting reasonably and accompanied by (x) a policy or policies (or
an unconditional binding commitment therefor to be replaced by a final title policy) of title insurance issued by a nationally recognized
title insurance company (each such policy, a “Title Policy”), in such amounts as reasonably acceptable to the Administrative
Agent not to exceed the Fair Market Value of the applicable Mortgaged Property, insuring the Lien of each Mortgage as a valid first Lien
on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 10.2 or as
otherwise permitted by the Administrative Agent and otherwise in form and substance reasonably acceptable to the Administrative Agent
and the Borrower, together with such endorsements, co-insurance and reinsurance as the Administrative Agent may reasonably request but
only to the extent such endorsements are (i) available in the relevant jurisdiction (provided in no event shall the Administrative
Agent request a creditors’ rights endorsement) and (ii) available at commercially reasonable rates, (y) an opinion of
local counsel to the applicable Credit Party in form and substance reasonably acceptable to the Administrative Agent as to the enforceability
of such Mortgages, (z) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination,
and if any improvements on such Mortgaged Property are located in a special flood hazard area, (i) a notice about special flood
hazard area status and flood disaster assistance duly executed by the applicable Credit Parties and (ii) certificates of insurance,
together with the declaration pages, evidencing the insurance required by Section 9.3 in form and substance reasonably satisfactory
to the Administrative Agent, and (aa) an ALTA/NSPS survey in a form and substance reasonably acceptable to the Collateral Agent or such
existing survey together with a no-change affidavit sufficient for the title company to remove all standard survey exceptions from the
Title Policy related to such Mortgaged Property and issue the endorsements required in (x) above.
(d) Post-Closing
Covenant. Holdings agrees that it will, or will cause its relevant Subsidiaries to, complete each of the actions described on Schedule
9.14 (if any) as soon as commercially reasonable and by no later than the date set forth in Schedule 9.14 with respect to
such action or such later date as the Administrative Agent may reasonably agree.
9.15 Maintenance
of Ratings. Holdings will use commercially reasonable efforts to obtain and maintain (but not maintain any specific rating) a corporate
family and/or corporate credit rating, as applicable, and ratings in respect of the credit facilities provided pursuant to this Agreement,
in each case, from each of S&P and Moody’s.
9.16 Lines
of Business. Holdings and the Restricted Subsidiaries, taken as a whole, will not fundamentally and substantively alter the character
of their business, taken as a whole, from the business conducted by Holdings and the Subsidiaries, taken as a whole, on the Eleventh
Amendment Effective Date and other business activities which are extensions thereof or otherwise incidental, synergistic, reasonably
related, or ancillary to any of the foregoing (and non-core incidental businesses acquired in connection with any Permitted Acquisition
or permitted Investment).
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Section 10. Negative
Covenants
Each of Holdings and the
Borrower hereby covenants and agrees that on the Closing Date and thereafter, until the Termination Date:
10.1 Limitation
on Indebtedness. Holdings will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise
become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”)
with respect to any Indebtedness (including Acquired Indebtedness) and Holdings will not issue any shares of Disqualified Stock and will
not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not
Guarantors, preferred stock; provided that Holdings may incur Indebtedness (including Acquired Indebtedness) or issue shares of
Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), issue shares of Disqualified
Stock and issue shares of preferred stock, if, after giving effect thereto, the Fixed Charge Coverage Ratio of Holdings and the Restricted
Subsidiaries would be at least 1.75 to 1.00; provided further that the amount of Indebtedness (other than Acquired Indebtedness),
Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing together with any amounts incurred under Section 10.1(n)(x) by
Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $45,000,000 and (y) 30% of Consolidated
EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at any one time outstanding.
The foregoing limitations
will not apply to:
(a) Indebtedness
arising under the Credit Documents;
(b) (x) Indebtedness
that may be incurred pursuant to Sections 2.14 (together with any Refinancing Indebtedness in respect thereof and all accrued
interest, fees and expenses);
(c) (i) Indebtedness
(including any unused commitment) outstanding on the Closing Date listed on Schedule 10.1 and (ii) intercompany Indebtedness
(including any unused commitment) outstanding on the Closing Date listed on Schedule 10.1 (other than intercompany Indebtedness
owed by a Credit Party to another Credit Party);
(d) Indebtedness
(including Capitalized Lease Obligations), Disqualified Stock and preferred stock incurred by Holdings or any Restricted Subsidiary,
to finance the purchase, lease, construction, installation, maintenance, replacement or improvement of property (real or personal) or
equipment that is used or useful in a Similar Business, whether through the direct purchase of assets or the Capital Stock of any Person
owning such assets and Indebtedness arising from the conversion of the obligations of Holdings or any Restricted Subsidiary under or
pursuant to any “synthetic lease” transactions to on-balance sheet Indebtedness of Holdings or such Restricted Subsidiary,
in an aggregate principal amount which, when aggregated with the principal amount of all other Indebtedness, Disqualified Stock and preferred
stock then outstanding and incurred pursuant to this clause (d) and all Refinancing Indebtedness incurred to refinance any
other Indebtedness, Disqualified Stock and preferred stock incurred pursuant to this clause (d), does not exceed the greater of
(x) $105,000,000 and (y) 35% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis)
at the time of incurrence; provided that Capitalized Lease Obligations incurred by Holdings or any Restricted Subsidiary pursuant
to this clause (d) in connection with a Permitted Sale Leaseback shall not be subject to the foregoing limitation so long
as the proceeds of such Permitted Sale Leaseback are used by Holdings or such Restricted Subsidiary in accordance with Section 5.2(a);
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(e) Indebtedness
incurred by Holdings or any Restricted Subsidiary (including letter of credit obligations consistent with past practice constituting
Reimbursement Obligations with respect to letters of credit issued in the ordinary course of business), in respect of workers’
compensation claims, deferred compensation, performance or surety bonds, health, disability or other employee benefits or property, casualty
or liability insurance or self-insurance or other Indebtedness with respect to reimbursement or indemnification type obligations regarding
workers’ compensation claims, deferred compensation, performance or surety bonds, health, disability or other employee benefits
or property, casualty or liability insurance or self-insurance;
(f) Indebtedness
arising from agreements of Holdings or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, earnout or
similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a
Subsidiary or other Person, 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;
(g) Indebtedness
of Holdings to a Restricted Subsidiary; provided that any such Indebtedness owing to a Restricted Subsidiary that is not the Borrower
or a Guarantor is subordinated in right of payment to Holdings’ Guarantee; 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 other subsequent transfer of any such Indebtedness (except to another Borrower or another Restricted Subsidiary) shall
be deemed, in each case to be an incurrence of such Indebtedness not permitted by this clause;
(h) Indebtedness
of a Restricted Subsidiary owing to Holdings or another Restricted Subsidiary; provided that if the Borrower or a Guarantor incurs
such Indebtedness owing to a Restricted Subsidiary that is not the Borrower or a Guarantor, such Indebtedness is subordinated in right
of payment to the Guarantee of such Guarantor as the case may be; provided, further, that any subsequent transfer of any
such Indebtedness (except to Holdings or another Restricted Subsidiary) shall be deemed, in each case to be an incurrence of such Indebtedness
not permitted by this clause;
(i) shares
of preferred stock of a Restricted Subsidiary issued to Holdings or another Restricted Subsidiary; provided that any subsequent
issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such shares of preferred stock (except to Holdings or another Restricted Subsidiary)
shall be deemed in each case to be an issuance of such shares of preferred stock not permitted by this clause;
(j) Hedging
Obligations (excluding Hedging Obligations entered into for speculative purposes);
(k) obligations
in respect of self-insurance, performance, bid, appeal, and surety bonds and completion guarantees and similar obligations provided by
Holdings 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 past practice;
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(l) (i) Indebtedness,
Disqualified Stock and preferred stock of Holdings or any Restricted Subsidiary in an aggregate principal amount or liquidation preference
(together with any Refinancing Indebtedness in respect thereof) up to 100% of the net cash proceeds received by Holdings since immediately
after the Closing Date from the issue or sale of Equity Interests of Holdings or cash contributed to the capital of Holdings (in each
case, other than Excluded Contributions, any Cure Amount or proceeds of Disqualified Stock or sales of Equity Interests to Holdings or
any of its Subsidiaries) as determined in accordance with Sections 10.5(a)(iii)(B) and 10.5(a)(iii)(C) to the
extent such net cash proceeds or cash have not been applied pursuant to such clauses to make Restricted Payments or to make other Investments,
payments or exchanges pursuant to Section 10.5(b) or to make Permitted Investments (other than Permitted Investments
specified in clauses (i) and (iii) of the definition thereof) and (ii) Indebtedness, Disqualified Stock
or preferred stock of Holdings or any Restricted Subsidiary not otherwise permitted hereunder in an aggregate principal amount or liquidation
preference, which when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock
and preferred stock then outstanding and incurred pursuant to this clause (l)(ii), does not at any one time outstanding exceed
the greater of (x) $150,000,000 and (y) 50% of Consolidated EBITDA for the most recently ended Test Period (calculated on a
Pro Forma Basis) at the time of incurrence (it being understood that any Indebtedness, Disqualified Stock or preferred stock incurred
pursuant to this clause (l)(ii) shall cease to be deemed incurred or outstanding for purposes of this clause (l)(ii) but
shall be deemed incurred for the purposes of the first paragraph of this Section 10.1 from and after the first date on which
Holdings or such Restricted Subsidiary could have incurred such Indebtedness, Disqualified Stock or preferred stock under the first paragraph
of this Section 10.1 without reliance on this clause (l)(ii)); provided that the amount of Indebtedness (other than
Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing, together with any amounts
incurred under the first paragraph of this Section 10.1 and Section 10.1(n)(x) by Restricted Subsidiaries
that are not Guarantors shall not exceed the greater of (x) $120 million and (y) 40% of Consolidated EBITDA for the most recently
ended Test Period (calculated on a Pro Forma Basis) at any one time outstanding;
(m) the
incurrence or issuance by Holdings or any Restricted Subsidiary of Indebtedness, Disqualified Stock or preferred stock which serves to
refinance any Indebtedness, Disqualified Stock or preferred stock incurred as permitted under the first paragraph of this Section 10.1
and clauses (b) and (c) above, clause (l)(i) and this clause (m) or clause (n) below
or any Indebtedness, Disqualified Stock or preferred stock issued to so refinance, replace, refund, extend, renew, defease, restructure,
amend, restate or otherwise modify (collectively, “refinance”) such Indebtedness, Disqualified Stock or preferred
stock (the “Refinancing Indebtedness”) prior to its respective maturity; provided, that such Refinancing Indebtedness
(1) has a weighted average life to maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining
weighted average life to maturity of the Indebtedness, Disqualified Stock or preferred stock being refinanced, (2) to the extent
such Refinancing Indebtedness refinances (i) Indebtedness that is unsecured or secured by a Lien ranking junior to the Liens securing
the Obligations, such Refinancing Indebtedness is unsecured or secured by a Lien ranking junior to the Liens securing the Obligations,
(ii) Disqualified Stock or preferred stock, such Refinancing Indebtedness must be Disqualified Stock or preferred stock, respectively,
and (iii) Indebtedness subordinated in right of payment to the Obligations, such Refinancing Indebtedness is subordinated in right
of payment to the Obligations at least to the same extent as the Indebtedness being refinanced and (3) shall not include Indebtedness,
Disqualified Stock or preferred stock of a Subsidiary of Holdings that is not the Borrower or a Guarantor that refinances Indebtedness,
Disqualified Stock or preferred stock of the Borrower or a Guarantor;
(n) Indebtedness,
Disqualified Stock or preferred stock of (x) Holdings or a Restricted Subsidiary incurred or issued to finance an acquisition, merger,
or consolidation; provided that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred
stock that may be incurred pursuant to the foregoing, together with any amounts incurred under the first paragraph of this Section 10.1
and Section 10.1(l)(ii) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (i) $120,000,000
and (ii) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at any one time outstanding,
or (y) Persons that are acquired by Holdings or any Restricted Subsidiary or merged into or consolidated with Holdings or a Restricted
Subsidiary in accordance with the terms hereof (including designating an Unrestricted Subsidiary a Restricted Subsidiary); provided
that after giving effect to any such acquisition, merger, consolidation or designation described in this clause (n), either: (1) Holdings
would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the
first paragraph of this Section 10.1 or (2) the Fixed Charge Coverage Ratio of Holdings and the Restricted Subsidiaries
is equal to or greater than immediately prior to such acquisition, merger, consolidation or designation;
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(o) 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;
(p) (i) Indebtedness
of Holdings or any Restricted Subsidiary supported by a letter of credit, in a principal amount not in excess of the stated amount of
such letter of credit so long as such letter of credit is otherwise permitted to be incurred pursuant to this Section 10.1
or (ii) obligations in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit
of any Subsidiary of Holdings to the extent required by law or in connection with any statutory filing or the delivery of audit opinions
performed in jurisdictions other than within the United States;
(q) (1) any
guarantee by Holdings or a Restricted Subsidiary of Indebtedness or other obligations of any Restricted Subsidiary so long as in the
case of a guarantee of Indebtedness by a Restricted Subsidiary that is not a Guarantor, such Indebtedness could have been incurred directly
by the Restricted Subsidiary providing such guarantee or (2) any guarantee by a Restricted Subsidiary of Indebtedness of Holdings;
(r) Indebtedness
of Restricted Subsidiaries that are not Guarantors in an amount not to exceed, in the aggregate at any one time outstanding, the greater
of (x) $60,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis)
(it being understood that any Indebtedness incurred pursuant to this clause (r) shall cease to be deemed incurred or outstanding
for purposes of this clause (r) but shall be deemed incurred for the purposes of the first paragraph of this covenant from
and after the first date on which such Restricted Subsidiary could have incurred such Indebtedness under the first paragraph of this
covenant without reliance on this clause (r));
(s) Indebtedness
of Holdings or any of the Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take or pay
obligations contained in supply arrangements in each case, incurred in the ordinary course of business or consistent with past practice;
(t) (i) Indebtedness
of Holdings or any of the Restricted Subsidiaries undertaken in connection with cash management and related activities with respect to
any Subsidiary or joint venture in the ordinary course of business, including with respect to financial accommodations of the type described
in the definition of Cash Management Services and (ii) Indebtedness owed on a short-term basis of no longer than 30 days to banks
and other financial institutions incurred in the ordinary course of business of the Borrower and its Restricted Subsidiaries with such
banks or financial institutions that arises in connection with ordinary banking arrangements to manage cash balances of the Borrower
and its Restricted Subsidiaries;
(u) Indebtedness
consisting of Indebtedness issued by Holdings or any of the Restricted Subsidiaries to future, current or former officers, directors,
managers and employees thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption
of Equity Interests of Holdings or any direct or indirect parent company of Holdings to the extent described in clause (4) of
Section 10.5(b);
(v) Indebtedness
in respect of a Receivables Facility;
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(w) Indebtedness
in respect of (i) Permitted Other Indebtedness to the extent that the Net Cash Proceeds therefrom are applied to the prepayment
of Term Loans in the manner set forth in Section 5.2(a)(i); and (ii) any refinancing, refunding, renewal or extension
of any Indebtedness specified in subclause (i) above; provided that (x) the principal amount of any such Indebtedness
is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension
(except for any original issue discount thereon and the amount of fees, expenses, and premium and accrued and unpaid interest in connection
with such refinancing) and (y) such Indebtedness otherwise complies with the definition of Permitted Other Indebtedness;
(x) Indebtedness
in respect of (i) Permitted Other Indebtedness; provided that either (a) the aggregate principal amount of all such
Permitted Other Indebtedness issued or incurred pursuant to this clause (i)(a) shall not exceed the Maximum Incremental Facilities
Amount or (b) the Net Cash Proceeds thereof shall be applied no later than ten Business Days after the receipt thereof to repurchase,
repay, redeem or otherwise defease Permitted Other Indebtedness (provided, in the case of this clause (i)(b), such Permitted
Other Indebtedness is unsecured or secured by a Lien ranking junior to the Lien securing the Obligations) and (ii) any refinancing,
refunding, renewal or extension of any Indebtedness specified in subclause (i) above; provided that (x) the principal
amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing,
refunding, renewal or extension (except for any original issue discount thereon and the amount of fees, expenses and premium and accrued
and unpaid interest in connection with such refinancing) and (y) such Indebtedness otherwise complies with the definition of Permitted
Other Indebtedness; and
(y) (i) Indebtedness
in respect of Permitted Debt Exchange Notes incurred pursuant to a Permitted Debt Exchange in accordance with Section 2.15
(and which does not generate any additional proceeds) and (ii) any refinancing, refunding, renewal or extension of any Indebtedness
specified in subclause (i) above; provided that (x) the principal amount of any such Indebtedness is not increased
above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension (except for any
original issue discount thereon and the amount of fees, expenses, and premium and accrued and unpaid interest in connection with such
refinancing) and (y) such Indebtedness otherwise complies with the definition of Permitted Other Indebtedness.
For purposes of determining compliance with this
Section 10.1: (i) in the event that an item of Indebtedness, Disqualified Stock or preferred stock (or any portion thereof)
meets the criteria of more than one of the categories of permitted Indebtedness, Disqualified Stock or preferred stock described in clauses
(a) through (y) above or is entitled to be incurred pursuant to the first paragraph of this Section 10.1,
Holdings, in its sole discretion, will classify and may reclassify (including within the definition of Maximum Incremental Facilities
Amount) such item of Indebtedness, Disqualified Stock or preferred stock (or any portion thereof) and will only be required to include
the amount and type of such Indebtedness, Disqualified Stock or preferred stock in one of the above clauses or paragraphs; and (ii) at
the time of incurrence, Holdings will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness
described in this Section 10.1.
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 will not be deemed to be an incurrence of Indebtedness, Disqualified Stock or preferred
stock for purposes of this covenant. Any Refinancing Indebtedness and any Indebtedness incurred to refinance Indebtedness incurred pursuant
to clauses (a) and (l)(i) above shall be deemed to include additional Indebtedness, Disqualified Stock or preferred
stock incurred to pay premiums (including reasonable tender premiums), defeasance costs, fees, and expenses in connection with such refinancing.
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For purposes of determining compliance with any
Dollar-denominated restriction on the incurrence of Indebtedness, the principal amount of Indebtedness denominated in another currency
shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of
term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to refinance
other Indebtedness denominated in another 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
shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed (i) the
principal amount of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums,
and other costs and expenses and accrued and unpaid interest incurred in connection with such refinancing.
The principal amount of any Indebtedness incurred
to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based
on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on
the date of such refinancing.
This Agreement will not treat (1) unsecured
Indebtedness as subordinated or junior to secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated
or junior to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral.
10.2 Limitation
on Liens.
(a) Holdings
will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any property
or assets of any kind (real or personal, tangible or intangible) of Holdings or any Restricted Subsidiary, whether now owned or hereafter
acquired (each, a “Subject Lien”) that secures obligations under any Indebtedness on any asset or property of Holdings
or any Restricted Subsidiary, except:
(i) if
such Subject Lien is a Permitted Lien;
(ii) any
other Subject Lien if the obligations secured by such Subject Lien are junior to the Obligations; provided that at the Borrower’s
election, in the case of Liens securing Permitted Other Indebtedness Obligations, the applicable Permitted Other Indebtedness Secured
Parties (or a representative thereof on behalf of such holders) shall enter into security documents with terms and conditions not materially
more restrictive to the Credit Parties, taken as a whole, than the terms and conditions of the Security Documents and shall (x) in
the case of the first such issuance of Permitted Other Indebtedness, the Collateral Agent, the Administrative Agent and the representative
of the holders of such Permitted Other Indebtedness Obligations shall have entered into the Second Lien Intercreditor Agreement and (y) in
the case of subsequent issuances of Permitted Other Indebtedness, the representative for the holders of such Permitted Other Indebtedness
shall have become a party to the Second Lien Intercreditor Agreement in accordance with the terms thereof; and without any further consent
of the Lenders, the Administrative Agent and the Collateral Agent shall be authorized to execute and deliver on behalf of the Secured
Parties the First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement contemplated by this clause (ii); and
(iii) in
the case of any other Subject Lien on assets or property not constituting Collateral, any Subject Lien if (i) the Obligations are
equally and ratably secured with (or on a senior basis to, in the case such Subject Lien secures any Junior Debt) the obligations secured
by such Subject Lien or (ii) such Subject Lien is a Permitted Lien.
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(b) Any
Lien created for the benefit of the Secured Parties pursuant to the Section 10.2(a)(iii) shall provide by its terms
that such Lien shall automatically and unconditionally be released and discharged upon the release and discharge of the Subject Lien
that gave rise to the obligation to so secure the Obligations.
10.3 Limitation
on Fundamental Changes. Holdings will not, and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all its business units, assets or other properties, except that:
(a) so
long as no Event of Default has occurred and is continuing or would result therefrom, any Subsidiary of Holdings or any other Person
may be merged, amalgamated or consolidated with or into Holdings or the Borrower; provided that (A) Holdings or the Borrower
shall be the continuing or surviving corporation or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation
is not Holdings or the Borrower (such other Person, the “Successor Borrower”), (1) the Successor Borrower shall
be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory
thereof, (2) the Successor Borrower shall expressly assume all the obligations of Holdings or the Borrower under this Agreement
and the other Credit Documents pursuant to a supplement hereto or thereto or in a form otherwise reasonably satisfactory to the Administrative
Agent, (3) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement
to the Guarantee confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement,
(4) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation,
shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its Guarantee
as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger,
amalgamation or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its Guarantee as
reaffirmed pursuant to clause (3), (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an
officer’s certificate stating that such merger, amalgamation, or consolidation and such supplements preserve the enforceability
of the Guarantee and the perfection and priority of the Liens under the applicable Security Documents and (y) if requested by the
Administrative Agent, an opinion of counsel to the effect that such merger, amalgamation, or consolidation does not violate this Agreement
or any other Credit Document and that the provisions set forth in the preceding clauses (3) through (5) preserve
the enforceability of the Guarantee and the perfection of the Liens created under the applicable Security Documents (it being understood
that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement),
and (7) the Successor Borrower shall have delivered to the Administrative Agent such documentation and information as is reasonably
requested in writing by the Administrative Agent about the Credit Parties to the extent the Administrative Agent and Holdings in good
faith mutually agree is required by regulatory authorities under applicable “know your customer” and anti-money laundering
rules and regulations, including, without limitation, the Patriot Act;
(b) so
long as no Event of Default has occurred and is continuing or would result therefrom, any Subsidiary of Holdings or any other Person
(in each case, other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of Holdings;
provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries,
(A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) Holdings shall cause the Person formed by or
surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in
the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving
Person or the Person formed by or surviving any such merger, amalgamation or consolidation and if the surviving Person is not already
a Guarantor, such Person shall execute a supplement to the Guarantee and the relevant Security Documents in form and substance reasonably
satisfactory to the Administrative Agent in order to become a Guarantor and pledgor, mortgagor and grantor, as applicable, thereunder
for the benefit of the Secured Parties, and (iii) Holdings shall have delivered to the Administrative Agent an officer’s certificate
stating that such merger, amalgamation or consolidation and any such supplements to any Security Document preserve the enforceability
of the Guarantees and the perfection and priority of the Liens under the applicable Security Documents;
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(c) [Reserved];
(d) (i) any
Restricted Subsidiary that is not a Credit Party may convey, sell, lease, assign, transfer or otherwise dispose of any or all of its
assets (upon voluntary liquidation or dissolution or otherwise) to Holdings or any other Restricted Subsidiary or (ii) any Credit
Party (other than the Borrower) may convey, sell, lease, assign, transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or dissolution or otherwise) to any other Credit Party;
(e) any
Subsidiary may convey, sell, lease, assign, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or
dissolution or otherwise) to a Credit Party; provided that the consideration for any such disposition by any Person other than
a Guarantor shall not exceed the fair value of such assets;
(f) any
Restricted Subsidiary (other than the Borrower) may liquidate or dissolve if Holdings determines in good faith that such liquidation
or dissolution is in the best interests of Holdings and is not materially disadvantageous to the Lenders;
(g) Holdings
and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation, investment or conveyance, sale, lease,
assignment or disposition, the purpose of which is to effect an Asset Sale (which for purposes of this Section 10.3(g), will
include any disposition below the dollar threshold set forth in clause (d) of the definition of “Asset Sale”) permitted
by Section 10.4 or an investment permitted pursuant to Section 10.5 or an investment that constitutes a Permitted
Investment; and
(h) so
long as no Event of Default has occurred and is continuing or would result therefrom, Holdings or any Restricted Subsidiary may change
its legal form.
10.4 Limitation
on Sale of Assets. Holdings will not, and will not permit any Restricted Subsidiary to, consummate an Asset Sale, unless:
(a) Holdings
or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market
Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
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(b) except
in the case of a Permitted Asset Swap, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of
the greater of (x) $45,000,000 and (y) 1.5% of Consolidated Total Assets (calculated on a Pro Forma Basis) at the time of such
disposition, either (A) at least 75% of the consideration therefor received by Holdings or such Restricted Subsidiary, as the case
may be, is in the form of cash or Cash Equivalents or (B) at least 50% of the consideration therefor received by the Borrower or
such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents (provided that the Net Cash Proceeds received
pursuant to this clause (B) must be used to repay the Loans in accordance with Section 5.2(a) (and without regard to any
de minimis thresholds or reinvestment rights) within three (3) Business Days of receipt thereof); provided that the amount of:
(i) any
liabilities (as reflected on Holdings’ most recent consolidated 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 Holdings’ consolidated 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 Holdings) of Holdings, other than liabilities that are by their terms subordinated to the Loans, that are assumed by
the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Asset Sale) and
for which Holdings and all such Restricted Subsidiaries have been validly released by all applicable creditors in writing;
(ii) any
securities, notes or other obligations or assets received by Holdings or such Restricted Subsidiary from such transferee that are converted
by Holdings or such 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), in each case, within 180 days following the closing of such Asset
Sale;
(iii) Indebtedness,
other than liabilities that are by their terms subordinated to the Loans, that are of any Restricted Subsidiary that is no longer a Restricted
Subsidiary as a result of such Asset Sale, to the extent that Holdings and all Restricted Subsidiaries have been validly released from
any Guarantee of payment of such Indebtedness in connection with such Asset Sale; and
(iv) any
Designated Non-Cash Consideration received by Holdings or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market
Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iv) that is at that time
outstanding, not to exceed the greater of (x) $175,000,000 and (y) 6.00% of Consolidated Total Assets (calculated on a Pro
Forma Basis) at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated
Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value,
shall be deemed to be cash for purposes of this
clause (b) of this provision and for no other purpose.
Notwithstanding the foregoing,
in no event shall any of Holdings, the Borrower or any Restricted Subsidiary permit any Asset Sale which results in any intellectual
property or rights thereto that are material to the business or operations of Holdings, the Borrower and the Restricted Subsidiaries,
taken as a whole, being transferred to any Unrestricted Subsidiary.
(c) Within
the Reinvestment Period after Holdings’ or any Restricted Subsidiary’s receipt of the Net Cash Proceeds of any Asset Sale,
Holdings or such Restricted Subsidiary shall apply the Net Cash Proceeds from such Asset Sale:
(i) (x) to
prepay Loans or Permitted Other Indebtedness in accordance with Section 5.2(a)(i) or (y) to the extent not required
to prepay Loans pursuant to Section 5.2(a)(i) or Section 10.4(b), be retained by the Borrower and/or Restricted
Subsidiaries (any such amounts, “Retained Asset Sale Proceeds”); and/or
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(ii) to
make investments in the Borrower and its Subsidiaries; provided that Holdings and the Restricted Subsidiaries will be deemed to
have complied with this clause (ii) if and to the extent that, within the Reinvestment Period after the Asset Sale that generated
the Net Cash Proceeds, Holdings or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement to consummate
any such investment described in this clause (ii) with the good faith expectation that such Net Cash Proceeds will be applied
to satisfy such commitment within 180 days of such commitment and, in the event any such commitment is later cancelled or terminated
for any reason before the Net Cash Proceeds are applied in connection therewith, Holdings or such Restricted Subsidiary prepays the Loans
in accordance with Section 5.2(a)(i).
(d) Pending
the final application of any Net Cash Proceeds pursuant to this covenant, Holdings or the applicable Restricted Subsidiary may apply
such Net Cash Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Credit Facility or any other revolving credit
facility or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Agreement.
10.5 Limitation
on Restricted Payments.
(a) Holdings
will not, and will not permit any Restricted Subsidiary to, directly or indirectly:
(1) declare
or pay any dividend or make any payment or distribution on account of Holdings’ or any Restricted Subsidiary’s Equity Interests,
including any dividend or distribution payable in connection with any merger or consolidation, other than:
(A) dividends
or distributions by Holdings payable in Equity Interests (other than Disqualified Stock) of Holdings or in options, warrants or other
rights to purchase such Equity Interests, or
(B) dividends
or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class
or series of securities issued by a Subsidiary other than a Wholly-Owned Subsidiary, Holdings or a Restricted Subsidiary receives at
least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities;
(2) purchase,
redeem, defease or otherwise acquire or retire for value any Equity Interests of Holdings or any direct or indirect parent company of
Holdings, including in connection with any merger or consolidation;
(3) make
any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value in each case, prior to any scheduled
repayment, sinking fund payment or maturity, any Junior Debt of Holdings or any Restricted Subsidiary, other than (A) Indebtedness
permitted under clauses (g) and (h) of Section 10.1 or (B) the purchase, repurchase or other
acquisition of Junior Debt purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity,
in each case due within one year of the date of purchase, repurchase or acquisition; or
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(4) make
any Restricted Investment;
(all such payments and other actions set forth
in clauses (1) through (4) above (other than any exception thereto) being collectively referred to as “Restricted
Payments”), unless, at the time of such Restricted Payment:
(i) other
than with respect to Restricted Payments made in reliance on clauses (B), (C) and (G) of the definition
of Available Amount, no Event of Default shall have occurred and be continuing or would occur as a consequence thereof (or in the case
of a Restricted Investment, no Event of Default under Section 11.1 or 11.5 shall have occurred and be continuing or
would occur as a consequence thereof);
(ii) [reserved];
and
(iii) such
Restricted Payment, together with the aggregate amount of all other Restricted Payments made by Holdings and the Restricted Subsidiaries
after the Eleventh Amendment Effective Date (including Restricted Payments permitted by clauses (1), (2) (with respect
to the payment of dividends on Refunding Capital Stock pursuant to clause (b) thereof only) and (6)(C) of Section 10.5(b) below,
but excluding all other Restricted Payments permitted by Section 10.5(b)), is less than the sum of (without duplication)
(the sum of the amounts attributable to clauses (A) through (G) below is referred to herein as the “Available Amount”):
(A) (i) 100%
of Consolidated EBITDA during the most recent Test Period less (ii) the Fixed Charges during such period multiplied by 1.50, plus
(B) 100%
of the aggregate net cash proceeds and the Fair Market Value of marketable securities or other property received by Holdings since immediately
after the Closing Date (other than (i) net cash proceeds to the extent such net cash proceeds have been used to incur Indebtedness,
Disqualified Stock or preferred stock pursuant to clause (l)(i) of Section 10.1 and (ii) proceeds from Cure
Amounts and amounts received from a Restricted Subsidiary) from the issue or sale of (x) Equity Interests of Holdings, including
Retired Capital Stock, but excluding cash proceeds and the Fair Market Value of marketable securities or other property received from
the sale of (A) Equity Interests to any employee, director, manager or consultant of Holdings, any direct or indirect parent company
of Holdings and Holdings’ Subsidiaries after the Closing Date to the extent such amounts have been applied to Restricted Payments
made in accordance with clause (4) of Section 10.5(b) below, and (B) Designated Preferred Stock, and,
to the extent such net cash proceeds are actually contributed to Holdings, Equity Interests of any direct or indirect parent company
of Holdings (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 clause (4) of Section 10.5(b) below)
or (y) Indebtedness of Holdings or a Restricted Subsidiary that has been converted into or exchanged for such Equity Interests of
Holdings or any direct or indirect parent company of Holdings; provided that this clause (B) shall not include the
proceeds from (a) Refunding Capital Stock, (b) Equity Interests or Indebtedness that has been converted or exchanged for Equity
Interests of Holdings sold to a Restricted Subsidiary or Holdings, as the case may be, (c) Disqualified Stock or Indebtedness that
has been converted or exchanged into Disqualified Stock or (d) Excluded Contributions, plus
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(C) 100%
of the aggregate amount of cash and the Fair Market Value of marketable securities or other property contributed to the capital of Holdings
following the Closing Date (other than net cash proceeds from Cure Amounts or to the extent such net cash proceeds (i) have been
used to incur Indebtedness, Disqualified Stock or preferred stock pursuant to clause (l)(i) of Section 10.1,
(ii) are contributed by a Restricted Subsidiary or (iii) constitute Excluded Contributions), plus
(D) 100%
of the aggregate amount received in cash and the Fair Market Value of marketable securities or other property received by means of (A) the
sale or other disposition (other than to Holdings or a Restricted Subsidiary) of Restricted Investments made by Holdings and the Restricted
Subsidiaries and repurchases and redemptions of such Restricted Investments from Holdings and the Restricted Subsidiaries and repayments
of loans or advances, and releases of guarantees, which constitute Restricted Investments made by Holdings or the Restricted Subsidiaries,
in each case, after the Closing Date; or (B) the sale (other than to Holdings or a Restricted Subsidiary) of the stock 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 was made by Holdings or a Restricted Subsidiary pursuant to clause (7) of Section 10.5(b) below
at the time made or to the extent such Investment constituted a Permitted Investment) or a dividend or distribution from an Unrestricted
Subsidiary after the Closing Date; provided that such amount shall not be in excess of the amount of the original Investment,
plus
(E) in
the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary after the Closing Date, the Fair Market Value
of the Investment in such Unrestricted Subsidiary at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary,
other than to the extent the Investment in such Unrestricted Subsidiary was made by Holdings or a Restricted Subsidiary pursuant to clause
(7) of Section 10.5(b) below at the time made or to the extent such Investment constituted a Permitted Investment;
provided that such amount shall not be in excess of the amount of the original Investment, plus
(F) the
aggregate amount of any Retained Declined Proceeds and Retained Asset Sale Proceeds since the Closing Date, plus
(G) an
aggregate amount not to exceed the greater of $120 million and 40% of Consolidated EBITDA for the most recently ended Test Period (calculated
on a Pro Forma Basis).
(b) The
foregoing provisions of Section 10.5(a) will not prohibit:
(1) the
payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration
thereof or the giving of such irrevocable notice, as applicable, if at the date of declaration or the giving of such notice such payment
would have complied with the provisions of this Agreement;
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(2) (a) the
redemption, repurchase, retirement or other acquisition of any Equity Interests (“Retired Capital Stock”) or Junior
Debt of Holdings or any Restricted Subsidiary, or any Equity Interests of any direct or indirect parent company of Holdings, in exchange
for, or out of the proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary) of, Equity Interests
of Holdings or any direct or indirect Parent Entity or management investment vehicle to the extent contributed to Holdings (in each case,
other than any Disqualified Stock) (“Refunding Capital Stock”) and (b) if immediately prior to the retirement
of Retired Capital Stock, the declaration and payment of dividends thereon was permitted under clause (6) of this Section 10.5(b),
the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were
used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any direct or indirect Parent Entity or management investment
vehicle) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that was declarable and payable
on such Retired Capital Stock immediately prior to such retirement;
(3) the
prepayment, redemption, defeasance, repurchase or other acquisition or retirement for value of Junior Debt of Holdings or a Restricted
Subsidiary made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of Holdings, or a Restricted
Subsidiary, as the case may be, which is incurred in compliance with Section 10.1 so long as: (A) the principal amount
(or accreted value, if applicable) of such new Indebtedness does not exceed the principal amount of (or accreted value, if applicable),
plus any accrued and unpaid interest on the Junior Debt being so redeemed, defeased, repurchased, exchanged, acquired or retired for
value, plus the amount of any premium (including reasonable tender premiums), defeasance costs and any reasonable fees and expenses incurred
in connection with the issuance of such new Indebtedness, (B) if such Junior Debt is subordinated to the Obligations, such new Indebtedness
is subordinated to the Obligations or the applicable Guarantee at least to the same extent as such Junior Debt so purchased, exchanged,
redeemed, defeased, repurchased, acquired or retired for value, (C) such new Indebtedness has a final scheduled maturity date equal
to or later than the final scheduled maturity date of the Junior Debt being so redeemed, defeased, repurchased, exchanged, acquired or
retired, (D) if such Junior Debt so purchased, exchanged, redeemed, repurchased, acquired or retired for value is (i) unsecured
then such new Indebtedness shall be unsecured or (ii) Permitted Other Indebtedness incurred pursuant to Section 10.1(x)(i)(b) and
is secured by a Lien ranking junior to the Liens securing the Obligations then such new Indebtedness shall be unsecured or secured by
a Lien ranking junior to the Liens securing the Obligations, and (E) such new Indebtedness has a weighted average life to maturity
equal to or greater than the remaining weighted average life to maturity of the Junior Debt being so redeemed, defeased, repurchased,
exchanged, acquired or retired;
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(4) a
Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than
Disqualified Stock) of Holdings or any direct or indirect Parent Entity or management investment vehicle held by any future, present
or former employee, director, manager or consultant of Holdings, any of its Subsidiaries or any direct or indirect Parent Entity, or
their estates, descendants, family, spouse or former spouse pursuant to any management equity plan or stock option or phantom equity
plan or any other management or employee benefit plan or agreement, or any stock subscription or shareholder agreement (including, for
the avoidance of doubt, any principal and interest payable on any notes issued by Holdings or any direct or indirect Parent Entity or
management investment vehicle in connection with such repurchase, retirement or other acquisition), including any Equity Interests rolled
over by management of Holdings or any direct or indirect Parent Entity or management investment vehicle in connection with the Transactions;
provided that, except with respect to non-discretionary purchases, the aggregate Restricted Payments made under this clause
(4) subsequent to the Eleventh Amendment Effective Date do not exceed in any calendar year the greater of (x) $50,000,000
and (y) 17% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) (with unused amounts
in any calendar year being carried over to succeeding calendar years); provided, further, that such amount in any calendar
year may be increased by an amount not to exceed: (A) the cash proceeds from the sale of Equity Interests (other than Disqualified
Stock) of Holdings and, to the extent contributed to Holdings, the cash proceeds from the sale of Equity Interests of any direct or indirect
Parent Entity or management investment vehicle, in each case to any future, present or former employees, directors, managers or consultants
of Holdings, any of its Subsidiaries or any direct or indirect Parent Entity or management investment vehicle 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 Section 10.5(a)(iii), plus (B) the cash proceeds of key man life insurance policies received by
Holdings and the Restricted Subsidiaries after the Closing Date, less (C) the amount of any Restricted Payments previously made
pursuant to clauses (A) and (B) of this clause (4); and provided, further, that cancellation
of Indebtedness owing to Holdings or any Restricted Subsidiary from any future, present or former employees, directors, managers or consultants
of Holdings, any direct or indirect Parent Entity or management investment vehicle or any Restricted Subsidiary, or their estates, descendants,
family, spouse or former spouse in connection with a repurchase of Equity Interests of Holdings or any direct or indirect Parent Entity
or management investment vehicle will not be deemed to constitute a Restricted Payment for purposes of this Section 10.5
or any other provision of this Agreement;
(5) the
declaration and payment of dividends to holders of any class or series of Disqualified Stock of Holdings or any Restricted Subsidiary
or any class or series of preferred stock of any Restricted Subsidiary, in each case, issued in accordance with Section 10.1
to the extent such dividends are included in the definition of Fixed Charges;
(6) (A) the
declaration and payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock)
issued by Holdings after the Closing Date; (B) the declaration and payment of dividends to any direct or indirect parent company
of Holdings, the proceeds of which will be used to fund the payment of dividends to holders of any class or series of Designated Preferred
Stock (other than Disqualified Stock) of such parent company issued after the Closing Date; provided that the amount of dividends
paid pursuant to this clause (B) shall not exceed the aggregate amount of cash actually contributed to Holdings from the
sale of such Designated Preferred Stock; or (C) the declaration and payment of dividends on Refunding Capital Stock in excess of
the dividends declarable and payable thereon pursuant to clause (2) of this Section 10.5(b); provided
that, in the case of each of (A), (B), and (C) of this clause (6), for the most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock or
the declaration of such dividends on Refunding Capital Stock, after giving effect to such issuance or declaration on a pro forma basis,
Holdings and the Restricted Subsidiaries on a consolidated basis would have had a Fixed Charge Coverage Ratio of at least 2.00 to 1.00;
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(7) Investments
in Unrestricted Subsidiaries having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause
(7) that are at the time outstanding, without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds
of such sale do not consist of cash, Cash Equivalents or marketable securities, not to exceed the greater of (x) $75,000,000 and
(y) 25% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment
(with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value);
(8) (i) payments
made or expected to be made by Holdings or any Restricted Subsidiary in respect of withholding or similar taxes payable upon exercise
of Equity Interests by any future, present or former employee, director, manager, or consultant and repurchases of Equity Interests deemed
to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options
or warrants and (ii) payments or other adjustments to outstanding Equity Interests in accordance with any management equity plan,
stock option plan or any other similar employee benefit plan, agreement or arrangement in connection with any Restricted Payment;
(9) the
declaration and payment of dividends on Holdings’ common stock (or the payment of dividends to any direct or indirect parent company
of Holdings to fund a payment of dividends on such company’s common stock), in an amount on an aggregate basis not to exceed the
sum of (a) 6.00% per annum of the net cash proceeds received by or contributed to Holdings in or from its initial public offering,
other than public offerings with respect to Holdings’ common stock registered on Form S-8 and other than any public sale constituting
an Excluded Contribution and (b) an aggregate amount not to exceed 7.00% of the market capitalization of Holdings;
(10) Restricted
Payments in an amount that does not exceed the amount of Excluded Contributions made since the Closing Date;
(11) other
Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause not to exceed
the greater of (x) $90,000,000 and (y) 30% of Consolidated EBITDA for the most recently ended Test Period (calculated on a
Pro Forma Basis) at the time made;
(12) distributions
or payments of Receivables Fees;
(13) any
Restricted Payment made in connection with the Transactions and the fees and expenses related thereto or used to fund amounts owed to
Affiliates (including dividends to any direct or indirect parent company of Holdings to permit payment by such parent of such amount),
to the extent permitted by Section 9.9 (other than clause (b) thereof), and Restricted Payments in respect of
working capital adjustments or purchase price adjustments pursuant to any Permitted Acquisition or other Permitted Investment and to
satisfy indemnity and other similar obligations under any Permitted Acquisitions or other Permitted Investments;
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(14) other
Restricted Payments; provided that after giving Pro Forma Effect to such Restricted Payments the Consolidated Total Debt to Consolidated
EBITDA Ratio is equal to or less than 4.00:1.00, provided that, with respect to Investments and the prepayment, redemption, defeasance,
repurchase or other acquisition or retirement or value of Junior Debt, the Consolidated Total Debt to Consolidated EBITDA Ratio is equal
to or less than 4.25:1.00;
(15) the
declaration and payment of dividends or distributions by Holdings to, or the making of loans to, any direct or indirect parent company
of Holdings in amounts required for any direct or indirect parent company to pay: (A) franchise and excise taxes, and other fees
and expenses, required to maintain its organizational existence or qualification to do business, (B) consolidated, combined or similar
foreign, federal, state and local income and similar taxes, to the extent that such income taxes are attributable to the income of Holdings
and the Restricted Subsidiaries and, to the extent of the amount actually received from its Unrestricted Subsidiaries, in amounts required
to pay such taxes to the extent attributable to the income of such Unrestricted Subsidiaries, provided that in each case the amount
of such payments with respect to any fiscal year does not exceed the amount that Holdings, the Restricted Subsidiaries and the Unrestricted
Subsidiaries (to the extent described above) would have been required to pay in respect of such foreign, federal, state and local income
taxes for such fiscal year had Holdings, the Restricted Subsidiaries and the Unrestricted Subsidiaries (to the extent described above)
been a stand-alone taxpayer or stand-alone group (separate from any such direct or indirect parent company of Holdings) for all fiscal
years ending after the Closing Date, (C) customary salary, bonus, and other benefits payable to officers, employees, directors,
and managers of any direct or indirect parent company of Holdings to the extent such salaries, bonuses, and other benefits are attributable
to the ownership or operation of Holdings and the Restricted Subsidiaries, including Holdings’ proportionate share of such amount
relating to such parent company being a public company, (D) general corporate or other operating (including, without limitation,
expenses related to auditing or other accounting matters) and overhead costs and expenses of any direct or indirect parent company of
Holdings to the extent such costs and expenses are attributable to the ownership or operation of Holdings and the Restricted Subsidiaries,
including Holdings’ proportionate share of such amount relating to such parent company being a public company, (E) amounts
required for any direct or indirect parent company of Holdings to pay fees and expenses incurred by any direct or indirect parent company
of Holdings related to (i) the maintenance by such parent entity of its corporate or other entity existence and (ii) transactions
of such parent company of Holdings of the type described in clause (xi) of the definition of Consolidated Net Income, (F) cash
payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into
or exchangeable for Equity Interests of Holdings or any such direct or indirect parent company of Holdings, and (G) repurchases
deemed to occur upon the cashless exercise of stock options;
(16) the
repurchase, redemption or other acquisition for value of Equity Interests of Holdings deemed to occur in connection with paying cash
in lieu of fractional shares of such Equity Interests in connection with a share dividend, distribution, share split, reverse share split,
merger, consolidation, amalgamation or other business combination of Holdings, in each case, permitted under this Agreement;
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(17) the
distribution, by dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to Holdings or a Restricted Subsidiary by,
Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents);
(18) the
prepayment, redemption, defeasance, repurchase or other acquisition or retirement for value of Permitted Other Indebtedness secured by
a Lien ranking junior to the Lien securing the Obligations in an aggregate amount pursuant to this clause (18) not to exceed the
greater of (x) $75,000,000 and (y) 25% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro
Forma Basis); and
(19) payments
or distributions to satisfy dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger or transfer
of assets that complies with Section 10.3 (other than Section 10.3(g));
provided that at the time of, and after
giving effect to, any Restricted Payment permitted under clauses (10) (but only if the Excluded Contribution was made
more than six months prior to such time), (11), (14) (except for an Investment where the standard shall be no Event of
Default pursuant to Section 11.1 or 11.5), and (18), no Event of Default shall have occurred and be continuing
or would occur as a consequence thereof (or in the case of a Restricted Investment, no Event of Default under Section 11.1
or 11.5 shall have occurred and be continuing or would occur as a consequence thereof).
Notwithstanding the foregoing,
in no event shall any of Holdings, the Borrower or any Restricted Subsidiary permit any Investment which results in any intellectual
property or rights thereto that are material to the business or operations of Holdings, the Borrower and the Restricted Subsidiaries,
taken as a whole, being contributed or otherwise transferred to any Unrestricted Subsidiary.
Holdings will not permit
any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to the penultimate paragraph of the definition of Unrestricted
Subsidiary. For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by Holdings
and the Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated will be deemed to be Restricted Payments
in an amount determined as set forth in the last sentence of the definition of Investment. Such designation will be permitted only if
a Restricted Payment in such amount would be permitted at such time, whether pursuant to Section 10.5(a) or under clauses
(7), (10), or (11) of Section 10.5(b), or pursuant to the definition of Permitted Investments, and if such
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Unrestricted Subsidiaries will not be subject to any of the
restrictive covenants set forth in this Agreement.
For purposes of determining
compliance with this covenant, in the event that a proposed Restricted Payment or Investment (or a portion thereof) meets the criteria
of clauses (1) through (18) above or is entitled to be made pursuant to Section 10.5(a) and/or one
or more of the exceptions contained in the definition of Permitted Investments, Holdings will be entitled to classify or later reclassify
(based on circumstances existing on the date of such reclassification) such Restricted Payment (or portion thereof) among such clauses
(1) through (18), Section 10.5(a) and/or one or more of the exceptions contained in the definition of
“Permitted Investments”, in a manner that otherwise complies with this covenant.
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(c) Prior
to the Initial Term Loan Maturity Date, to the extent any Permitted Debt Exchange Notes are issued pursuant to Section 10.1(y) for
the purpose of consummating a Permitted Debt Exchange, (i) Holdings will not, and will not permit any Restricted Subsidiary to,
prepay, repurchase, redeem or otherwise defease or acquire any Permitted Debt Exchange Notes unless Holdings or a Restricted Subsidiary
shall concurrently voluntarily prepay Term Loans pursuant to Section 5.1(a) on a pro rata basis among the Term Loans,
in an amount not less than the product of (a) a fraction, the numerator of which is the aggregate principal amount (calculated on
the face amount thereof) of such Permitted Debt Exchange Notes that are proposed to be prepaid, repurchased, redeemed, defeased or acquired
and the denominator of which is the aggregate principal amount (calculated on the face amount thereof) of all Permitted Debt Exchange
Notes in respect of the relevant Permitted Debt Exchange then outstanding (prior to giving effect to such proposed prepayment, repurchase,
redemption, defeasance or acquisition) and (b) the aggregate principal amount (calculated on the face amount thereof) of Term Loans
then outstanding and (ii) Holdings will not waive, amend or modify the terms of any Permitted Debt Exchange Notes or any indenture
pursuant to which such Permitted Debt Exchange Notes have been issued in any manner inconsistent with the terms of Section 2.15(a),
Section 10.1(y), or the definition of Permitted Other Indebtedness or that would result in an Event of Default hereunder
if such Permitted Debt Exchange Notes (as so amended or modified) were then being issued or incurred.
10.6 Limitation
on Subsidiary Distributions. Holdings will not permit any of the Restricted Subsidiaries that are not Guarantors to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on
the ability of any such Restricted Subsidiary to:
(a) (i) pay
dividends or make any other distributions to Holdings or any Restricted Subsidiary 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 Holdings or any Restricted Subsidiary;
(b) make
loans or advances to Holdings or any Restricted Subsidiary; or
(c) sell,
lease or transfer any of its properties or assets to Holdings or any Restricted Subsidiary;
except (in each case) for
such encumbrances or restrictions (x) which the Borrower has reasonably determined in good faith will not materially impair the
Borrower’s ability to make payments under this Agreement when due or (y) existing under or by reason of:
(i) contractual
encumbrances or restrictions in effect on the Closing Date, including pursuant to this Agreement and the related documentation and related
Hedging Obligations;
(ii) [reserved];
(iii) purchase
money obligations for property acquired in the ordinary course of business or consistent with past practice and Capitalized Lease Obligations
that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(iv) Requirement
of Law or any applicable rule, regulation or order, or any request of any Governmental Authority having regulatory authority over the
Borrower or any of its Subsidiaries;
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(v) any
agreement or other instrument of a Person acquired by or merged or consolidated with or into Holdings or any Restricted Subsidiary, or
of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets
from such Person, in each case that is in existence at the time of such transaction (but 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 and its
Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired or designated;
(vi) contracts
for the sale of assets, including customary restrictions with respect to a Subsidiary of Holdings pursuant to an agreement that has been
entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary and restrictions
on transfer of assets subject to Permitted Liens;
(vii) (x) secured
Indebtedness otherwise permitted to be incurred pursuant to Sections 10.1 and 10.2 that limit the right of the debtor to
dispose of the assets securing such Indebtedness and (y) restrictions on transfers of assets subject to Permitted Liens (but, with
respect to any such Permitted Lien, only to the extent that such transfer restrictions apply solely to the assets that are the subject
of such Permitted Lien);
(viii) restrictions
on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(ix) other
Indebtedness, Disqualified Stock or preferred stock of Restricted Subsidiaries permitted to be incurred subsequent to the Closing Date
pursuant to the provisions of Section 10.1;
(x) customary
provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture
and the Equity Interests issued thereby;
(xi) customary
provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements, in each case, entered into in the ordinary
course of business;
(xii) restrictions
created in connection with any Receivables Facility that, in the good faith determination of the board of directors of Holdings, are
necessary or advisable to effect such Receivables Facility; and
(xiii) any
encumbrances or restrictions of the type referred to in clauses (a), (b), and (c) above imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments
or obligations referred to in clauses (i) through (xii) above; provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements, or refinancings (x) are, in the good faith judgment of
Holdings’ board of directors, 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 or (y) do not materially impair the Borrower’s ability to pay their respective obligations under the Credit
Documents as and when due (as determined in good faith by the Borrower).
10.7 Consolidated
First Lien Secured Debt to Consolidated EBITDA Ratio. Solely with respect to the Revolving Credit Facility, Holdings will not permit
the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio as of the last day of any Test Period ending during any Compliance
Period to be greater than 6.50 to 1.00.
10.8 Use
of Proceeds. The Borrower will not request any Loan, and the Borrower will not use, and shall procure that its Subsidiaries and its
or their respective directors, officers, employees and agents shall not use, the proceeds of any Loan (a) in furtherance of an offer,
payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of
any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or
with any Sanctioned Person, or in any Designated Country, to the extent such activities, business or transaction would be prohibited
by Sanctions if conducted by a corporation incorporated in the United States, the United Kingdom or in a European Union member state
or (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
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Section 11. Events
of Default.
Upon the occurrence of any
of the following specified events (each an “Event of Default”):
11.1 Payments.
The Borrower shall (a) default in the payment when due of any principal of the Loans or (b) default, and such default shall
continue for five or more Business Days, in the payment when due of any interest on the Loans or any Fees or any Unpaid Drawings or of
any other amounts owing hereunder or under any other Credit Document; or
11.2 Representations,
Etc. Any representation, warranty or statement made or deemed made by any Credit Party herein or in any other Credit Document or
any certificate delivered or required to be delivered pursuant hereto or thereto shall prove to be untrue in any material respect on
the date as of which made or deemed made, and, to the extent capable of being cured, such incorrect representation or warranty shall
remain incorrect for a period of 30 days after written notice thereof from the Administrative Agent to the Borrower; or
11.3 Covenants.
Any Credit Party shall:
(a) default
in the due performance or observance by it of any term, covenant or agreement contained in Section 9.1(e)(i), Section 9.5
(solely with respect to Holdings or the Borrower), Section 9.14(d) or Section 10; provided that any
default under Section 10.7 shall not constitute an Event of Default with respect to the Term Loans and the Term Loans may
not be accelerated as a result thereof until the date on which the Revolving Credit Loans (if any) have been accelerated or the Revolving
Credit Commitments have been terminated, in each case, by the Required Revolving Credit Lenders; provided that, if the Lenders
under any Incremental Revolving Credit Commitment have agreed not to have the benefit of the covenant set forth in Section 10.7,
such Incremental Revolving Credit Commitments shall be disregarded for purposes of determining the Required Revolving Credit Lenders
and such Incremental Revolving Credit Commitments shall be treated in the same way as the Term Loans are treated pursuant to this proviso
(such period commencing with a default under Section 10.7 and ending on the date on which the Required Revolving Credit Lenders
with respect to the Revolving Credit Facility terminate and accelerate the Revolving Loans, the “Term Loan Standstill Period”);
provided, further, that any Event of Default under Section 10.7 is subject to cure as provided in Section 11.14
and an Event of Default with respect to such Section shall not occur until the expiration of the 10th Business Day subsequent
to the date the relevant financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 9.1(a) or
(b); or
(b) default
in the due performance or observance by it of any term, covenant or agreement (other than those referred to in Section 11.1
or 11.2 or clause (a) of this Section 11.3) contained in this Agreement or any Security Document and such
default shall continue unremedied for a period of at least 30 days after receipt of written notice by Holdings from the Administrative
Agent or the Required Lenders; or
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11.4 Default
Under Other Agreements. (a) Holdings or any of the Restricted Subsidiaries shall (i) default in any payment with respect
to any Indebtedness (other than the Obligations) in excess of the greater of (x) $45,000,000 and (y) 15% of Consolidated EBITDA
for the most recently ended Test Period (calculated on a Pro Forma Basis) in the aggregate, for Holdings and such Restricted Subsidiaries,
beyond the period of grace and following all required notices, if any, provided in the instrument or agreement under which such Indebtedness
was created or (ii) default in the observance or performance of any agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist
(after giving effect to all applicable grace period and delivery of all required notices) (other than, with respect to Indebtedness consisting
of any Hedge Agreements, termination events or equivalent events pursuant to the terms of such Hedge Agreements (it being understood
that clause (i) shall apply to any failure to make any payment in excess of the greater of (x) $45,000,000 and (y) 15%
of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) in the aggregate that is required as
a result of any such termination or similar event and that is not otherwise being contested in good faith)), the effect of which default
or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of
such holder or holders) to cause, any such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically
or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity; provided
that this clause (a) shall not apply to secured Indebtedness that becomes due as a result of the sale, transfer or other
disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness (to the
extent such sale, transfer or other disposition is not prohibited under this Agreement), or (b) without limiting the provisions
of clause (a) above, any such Indebtedness shall be declared to be due and payable, or required to be prepaid other than
by a regularly scheduled required prepayment or as a mandatory prepayment (and, with respect to Indebtedness consisting of any Hedge
Agreements, other than due to a termination event or equivalent event pursuant to the terms of such Hedge Agreements (it being understood
that clause (a)(i) above shall apply to any failure to make any payment in excess of the greater of (x) $45,000,000
and (y) 15% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) in the aggregate that
is required as a result of any such termination or equivalent event and that is not otherwise being contested in good faith)), prior
to the stated maturity thereof; provided that this clause (b) shall not apply to (x) secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer
is permitted hereunder and under the documents providing for such Indebtedness, (y) Indebtedness which is convertible into Qualified
Stock and converts to Qualified Stock in accordance with its terms and such conversion is not prohibited hereunder, or (z) any breach
or default that is (I) remedied by Holdings, the Borrower or the applicable Restricted Subsidiary or (II) waived (including
in the form of amendment) by the required holders of the applicable item of Indebtedness, in either case, prior to the acceleration of
Loans pursuant to this Section 11; or
11.5 Bankruptcy,
Etc. Except as otherwise permitted by Section 10.3, Holdings, the Borrower or any Significant Subsidiary shall commence
a voluntary case, proceeding or action concerning itself under Title 11 of the United States Code entitled “Bankruptcy” as
now or hereafter in effect, or any successor thereto (collectively, the “Bankruptcy Code”); or an involuntary case,
proceeding or action is commenced against Holdings, the Borrower or any Significant Subsidiary and the petition is not controverted within
30 days after commencement of the case, proceeding or action; or an involuntary case, proceeding or action is commenced against Holdings,
the Borrower or any Significant Subsidiary and the petition is not dismissed within 60 days after commencement of the case, proceeding
or action; or a custodian (as defined in the Bankruptcy Code), judicial manager, compulsory manager, receiver, receiver manager, trustee,
liquidator, administrator, administrative receiver or similar Person is appointed for, or takes charge of, all or substantially all of
the property of Holdings, the Borrower or any Significant Subsidiary; or Holdings, the Borrower or any Significant Subsidiary commences
any other voluntary proceeding or action under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency,
winding-up, administration or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to Holdings,
the Borrower or any Significant Subsidiary; or there is commenced against Holdings, the Borrower or any Significant Subsidiary any such
proceeding or action that remains undismissed for a period of 60 days; or Holdings, the Borrower or any Significant Subsidiary is adjudicated
bankrupt; or any order of relief or other order approving any such case or proceeding or action is entered; or Holdings, the Borrower
or any Significant Subsidiary suffers any appointment of any custodian receiver, receiver manager, trustee, administrator or similar
Person for it or any substantial part of its property to continue undischarged or unstayed for a period of 60 days; or Holdings, the
Borrower or any Significant Subsidiary makes a general assignment for the benefit of creditors; or
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11.6 ERISA.
(a) An ERISA Event or a Foreign Plan Event shall have occurred, (b) a trustee shall be appointed by a United States district
court to administer any Pension Plan(s), (c) the PBGC shall institute proceedings to terminate any Pension Plan(s), or (d) any
Credit Party or any of their respective ERISA Affiliates shall have been notified by the sponsor of a Multiemployer Plan that it has
incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such entity does not have reasonable grounds for contesting
such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner, and in each case in clauses
(a) through (d) above, such event or condition, together with all other such events or conditions, if any, would
reasonably be expected to result in a Material Adverse Effect; or
11.7 Guarantee.
Other than as expressly permitted hereunder, any Guarantee provided by any Credit Party or any material provision thereof shall cease
to be in full force or effect (other than pursuant to the terms hereof and thereof) or any such Guarantor thereunder or any other Credit
Party shall deny or disaffirm in writing any such Guarantor’s obligations under the Guarantee; or
11.8 Pledge
Agreement. Other than as expressly permitted hereunder, the Pledge Agreement or any other Security Document pursuant to which the
Capital Stock or Stock Equivalents of the Borrower or any Subsidiary is pledged or any material provision thereof shall cease to be in
full force or effect (other than pursuant to the terms hereof or thereof, solely as a result of acts or omissions of the Collateral Agent
or any Lender or solely as a result of the Collateral Agent’s no longer having possession of any Capital Stock or Stock Equivalents
that have been previously delivered to it) or any pledgor thereunder or any Credit Party shall deny or disaffirm in writing any pledgor’s
obligations under any Security Document; or
11.9 Security
Agreement. Other than as expressly permitted hereunder, the Security Agreement or any other Security Document pursuant to which the
assets of Holdings, the Borrower or any Material Subsidiary are pledged as Collateral or any material provision thereof shall cease to
be in full force or effect (other than pursuant to the terms hereof or thereof, solely as a result of acts or omissions of the Collateral
Agent in respect of certificates, promissory notes or instruments actually delivered to it or as a result of a Uniform Commercial Code
filing having lapsed because a Uniform Commercial Code continuation statement was not filed in a timely manner) or any grantor thereunder
or any Credit Party shall deny or disaffirm in writing any grantor’s obligations under or any Security Document; or
11.10 Judgments.
One or more judgments or decrees shall be entered against Holdings or any of the Restricted Subsidiaries involving a liability of in
excess of the greater of (x) $45,000,000 and (y) 15% of Consolidated EBITDA for the most recently ended Test Period (calculated
on a Pro Forma Basis) in the aggregate for all such judgments and decrees for Holdings and the Restricted Subsidiaries (to the extent
not covered by insurance or indemnities as to which the applicable insurance company or third party has not denied coverage) and any
such judgments or decrees shall not have been satisfied, vacated, discharged or stayed or bonded pending appeal within 60 days after
the entry thereof; or
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11.11 Change
of Control. A Change of Control shall occur.
11.12 Remedies
Upon Event of Default. If an Event of Default occurs and is continuing (other than in the case of an Event of Default under Section 11.3(a) with
respect to any default of performance or compliance with the covenant under Section 10.7), the Administrative Agent shall,
upon the written request of the Required Lenders, by written notice to Holdings, take any or all of the following actions, without prejudice
to the rights of the Administrative Agent or any Lender to enforce its claims against Holdings and the Borrower, except as otherwise
specifically provided for in this Agreement (provided that, if an Event of Default specified in Section 11.5 shall
occur with respect to the Borrower or Holdings, the result that would occur upon the giving of written notice by the Administrative Agent
as specified in clauses (i), (ii), (iii), and (iv) below shall occur automatically without the giving
of any such notice): (i) declare the Total Revolving Credit Commitment and Swingline Commitment terminated, whereupon the Revolving
Credit Commitment and Swingline Commitment, if any, of each Lender or the Swingline Lender, as the case may be, shall forthwith terminate
immediately and any Fees theretofore accrued shall forthwith become due and payable without any other notice of any kind; (ii) declare
the principal of and any accrued interest and fees in respect of all Loans and all Obligations to be, whereupon the same shall become,
forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower
to the extent permitted by applicable law; (iii) terminate any Letter of Credit that may be terminated in accordance with its terms;
and/or (iv) direct the Borrower to pay (and the Borrower agrees that upon receipt of such notice, or upon the occurrence of an Event
of Default specified in Section 11.5 with respect to the Borrower, it will pay) to the Administrative Agent at the Administrative
Agent’s Office such additional amounts of cash, to be held as security for the Borrower’s respective Reimbursement Obligations
for Unpaid Drawings that may subsequently occur thereunder, equal to the aggregate Stated Amount of all Letters of Credit issued and
then outstanding. In the case of an Event of Default under Section 11.3(a) in respect of a failure to observe or perform
the covenant under Section 10.7, provided that the actions hereinafter described will be permitted to occur only following
the expiration of the ability to effectuate the Cure Right if such Cure Right has not been so exercised, and at any time thereafter during
the continuance of such event, the Administrative Agent shall, upon the written request of the Required Revolving Credit Lenders, by
written notice to Holdings, take either or both of the following actions, at the same or different times (except the following actions
may not be taken until the ability to exercise the Cure Right under Section 11.14 has expired (but may be taken as soon as
the ability to exercise the Cure Right has expired and it has not been so exercised)): (i) declare the Total Revolving Credit Commitment
and Swingline Commitment terminated, whereupon the Revolving Credit Commitment and Swingline Commitment, if any, of each Lender or the
Swingline Lender, as the case may be, shall forthwith terminate immediately and any Fees theretofore accrued shall forthwith become due
and payable without any other notice of any kind; and (ii) declare the Revolving Loans then outstanding to be due and payable in
whole (or in part, in which case any principal not so declared to be due and payable may thereafter, during the continuance of such event,
be declared to be due and payable), and thereupon the principal of the Revolving Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately,
without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower (to the extent permitted
by applicable law). On or after the expiration of the Term Loan Standstill Period, the Required Term Loan Lenders may, upon the written
request of the Required Term Loan Lenders to the Administrative Agent, elect to declare the Term Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter, during the continuance
of such event, be declared to be due and payable), and thereupon the principal of the Term Loans so declared to be due and payable, together
with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately,
without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower (to the extent permitted
by applicable law).
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11.13 Application
of Proceeds. Subject to the terms of the First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, in each
case, if executed, any amount received by the Administrative Agent or the Collateral Agent from any Credit Party (or from proceeds of
any Collateral) following any acceleration of the Obligations under this Agreement, any exercise of remedies under the Credit Documents
or any Event of Default with respect to the Borrower under Section 11.5 shall be applied:
(i) first,
to the payment of all reasonable and documented costs and expenses incurred by the Administrative Agent or the Collateral Agent in connection
with any collection or sale of the Collateral or otherwise in connection with any Credit Document, including all court costs and the
reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent or the Collateral
Agent hereunder or under any other Credit Document on behalf of any Credit Party and any other reasonable and documented costs or expenses
incurred in connection with the exercise of any right or remedy hereunder or under any other Credit Document to the extent reimbursable
hereunder or thereunder;
(ii) second,
to the Secured Parties, an amount (x) equal to all Obligations owing to them on the date of any distribution and (y) sufficient
to Cash Collateralize all Letters of Credit Outstanding on the date of any distribution, and, if such moneys shall be insufficient to
pay such amounts in full and Cash Collateralize all Letters of Credit Outstanding, then ratably (without priority of any one over any
other) to such Secured Parties in proportion to the unpaid amounts thereof and to Cash Collateralize the Letters of Credit Outstanding;
and
(iii) third,
any surplus then remaining shall be paid to the applicable Credit Parties or their successors or assigns or to whomsoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may direct;
provided that any amount applied to Cash
Collateralize any Letters of Credit Outstanding that has not been applied to reimburse the Borrower for Unpaid Drawings under the applicable
Letters of Credit at the time of expiration of all such Letters of Credit shall be applied by the Administrative Agent in the order specified
in clauses (i) through (iii) above. Notwithstanding the foregoing, amounts received from any Guarantor that is
not an “Eligible Contract Participant” (as defined in the Commodity Exchange Act) shall not be applied to its Obligations
that are Excluded Swap Obligations.
11.14 Equity
Cure. Notwithstanding anything to the contrary contained in this Section 11, in the event that Holdings fails to comply
with the requirement of the financial covenant set forth in Section 10.7, from the beginning of any fiscal period until the
expiration of the 10th Business Day following the date financial statements referred to in Sections 9.1(a) or
(b) are required to be delivered in respect of such fiscal period for which such financial covenant is being measured, any
holder of Capital Stock or Stock Equivalents of Holdings or any direct or indirect parent of Holdings shall have the right to cure such
failure (the “Cure Right”) by causing cash net equity proceeds derived from an issuance of Capital Stock or Stock
Equivalents (other than Disqualified Stock, unless reasonably satisfactory to the Administrative Agent) by Holdings (or from a contribution
to the common equity capital of Holdings) to be contributed, directly or indirectly, as cash common equity to the Borrower, and upon
receipt by the Borrower of such cash contribution (such cash amount being referred to as the “Cure Amount”) pursuant
to the exercise of such Cure Right, such financial covenant shall be recalculated giving effect to the following pro forma adjustments:
(a) Consolidated
EBITDA shall be increased, solely for the purpose of determining the existence of an Event of Default resulting from a breach of the
financial covenant set forth in Section 10.7 with respect to any period of four consecutive fiscal quarters that includes
the fiscal quarter for which the Cure Right was exercised and not for any other purpose under this Agreement, by an amount equal to the
Cure Amount;
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(b) Consolidated
First Lien Secured Debt shall be decreased solely to the extent proceeds of the Cure Amount are actually applied to prepay any of the
Credit Facilities and there shall be no pro forma reduction in Indebtedness with the proceeds of the Cure Amount for determining compliance
with the financial covenant set forth in Section 10.7 unless such proceeds are actually applied to prepay Indebtedness under the
Credit Facilities; and
(c) if,
after giving effect to the foregoing recalculations, Holdings shall then be in compliance with the requirements of the financial covenant
set forth in Section 10.7, Holdings shall be deemed to have satisfied the requirements of the financial covenant set forth
in Section 10.7 as of the relevant date of determination with the same effect as though there had been no failure to comply
therewith at such date, and the applicable breach or default of such financial covenants that had occurred shall be deemed cured for
the purposes of this Agreement; provided that (i) in each period of four consecutive fiscal quarters there shall be at least
two fiscal quarters in which no Cure Right is made, (ii) there shall be a maximum of five Cure Rights made during the term of this
Agreement, (iii) each Cure Amount shall be no greater than the amount expected to be required to cause Holdings to be in compliance
with the financial covenant set forth in Section 10.7; and (iv) all Cure Amounts shall be disregarded for the purposes
of any financial ratio determination under the Credit Documents other than for determining compliance with Section 10.7.
Section 12. The
Agents
12.1 Appointment.
(a) Each
Lender hereby irrevocably designates and appoints the Administrative Agent as the agent of such Lender under this Agreement and the other
Credit Documents and irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions
of this Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Credit Documents, together with such other powers as are reasonably
incidental thereto. The provisions of this Section 12 (other than Section 12.1(c) with respect to the Joint
Lead Arrangers and Bookrunners and Sections 12.1, 12.9, 12.11 and 12.12 with respect to Holdings) are solely
for the benefit of the Agents and the Lenders, none of Holdings, the Borrower or any other Credit Party shall have rights as third party
beneficiary of any such provision. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Credit Document or otherwise exist against the Administrative Agent. In performing its functions and duties hereunder, each Agent shall
act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship
of agency or trust with or for Holdings, the Borrower or any of their respective Subsidiaries.
(b) The
Administrative Agent, each Lender, the Swingline Lender and the Letter of Credit Issuer hereby irrevocably designate and appoint the
Collateral Agent as the agent with respect to the Collateral, and each of the Administrative Agent, each Lender, the Swingline Lender
and the Letter of Credit Issuer irrevocably authorizes the Collateral Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly
delegated to the Collateral Agent by the terms of this Agreement and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall
not have any duties or responsibilities except those expressly set forth herein, or any fiduciary relationship with any of the Administrative
Agent, the Lenders, the Swingline Lender or the Letter of Credit Issuers, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Credit Document or otherwise exist against the Collateral Agent.
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(c) Each
of the Joint Lead Arrangers and Bookrunners each in its capacity as such, shall not have any obligations, duties or responsibilities
under this Agreement but shall be entitled to all benefits of this Section 12.
12.2 Delegation
of Duties. The Administrative Agent and the Collateral Agent may each execute any of its duties under this Agreement and the other
Credit Documents by or through agents, sub-agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning
all matters pertaining to such duties. Neither the Administrative Agent nor the Collateral Agent shall be responsible for the negligence
or misconduct of any agents, subagents or attorneys-in-fact selected by it in the absence of its gross negligence or willful misconduct
(as determined in the final non-appealable judgment of a court of competent jurisdiction).
12.3 Exculpatory
Provisions. No Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be (a) liable
for any action lawfully taken or omitted to be taken by any of them under or in connection with this Agreement or any other Credit Document
(except for its or such Person’s own gross negligence or willful misconduct, as determined in the final non-appealable judgment
of a court of competent jurisdiction, in connection with its duties expressly set forth herein) or (b) responsible in any manner
to any of the Lenders or any participant for any recitals, statements, representations or warranties made by any Credit Party or any
officer thereof contained in this Agreement or any other Credit Document or in any certificate, report, statement or other document referred
to or provided for in, or received by such Agent under or in connection with, this Agreement or any other Credit Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Credit Document, or the creation,
perfection or priority of any Lien or security interest created or purported to be created under the Security Documents, or for any failure
of any Credit Party to perform its obligations hereunder or thereunder. No Agent shall be under any obligation to any Lender to ascertain
or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other
Credit Document, or to inspect the properties, books or records of any Credit Party or any Affiliate thereof. The Collateral Agent shall
not be under any obligation to the Administrative Agent or any Lender to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement or any other Credit Document, or to inspect the properties, books
or records of any Credit Party. Without limiting the generality of the foregoing, (a) no Agent shall have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that such Agent is
instructed in writing to exercise by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 13.1), 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 Credit 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 (b) except
as expressly set forth in the Credit Documents, no Agent shall have any duty to disclose, nor shall it be liable for the failure to disclose,
any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent and/or Collateral Agent or any of its Affiliates in any capacity.
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12.4 Reliance
by Agents. The Administrative Agent and the Collateral Agent shall be entitled to rely, and shall be fully protected in relying,
upon any writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order
or other document or instruction believed by it to be genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including counsel to Holdings and the Borrower), independent accountants
and other experts selected by the Administrative Agent or the Collateral Agent. The Administrative Agent may deem and treat the Lender
specified in the Register with respect to any amount owing hereunder as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent and the Collateral
Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Credit Document unless it
shall first receive such advice or concurrence of the Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent and the Collateral Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement and the other Credit Documents in accordance with a request of the Required Lenders, and such request
and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans; provided
that the Administrative Agent and the Collateral Agent shall not be required to take any action that, in its opinion or in the opinion
of its counsel, may expose it to liability or that is contrary to any Credit Document or applicable law.
12.5 Notice
of Default. Neither the Administrative Agent nor the Collateral Agent shall be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder unless the Administrative Agent or the Collateral Agent has received written notice from
a Lender or Holdings or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice
is a “notice of default.” In the event that the Administrative Agent receives such a notice, it shall give notice thereof
to the Lenders and the Collateral Agent. The Administrative Agent shall take such action with respect to such Default or Event of Default
as shall be reasonably directed by the Required Lenders; provided that unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders except to the extent that
this Agreement requires that such action be taken only with the approval of the Required Lenders or each of the Lenders, as applicable.
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12.6 Non-Reliance
on Administrative Agent, Collateral Agent, and Other Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent, the Collateral Agent nor the Joint Lead Arrangers and Bookrunners nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrative Agent,
the Collateral Agent or the Joint Lead Arrangers and Bookrunners hereinafter taken, including any review of the affairs of any Credit
Party, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Collateral Agent or the Joint Lead
Arrangers and Bookrunners to any Lender, the Swingline Lender or any Letter of Credit Issuer. Each Lender, the Swingline Lender and the
Letter of Credit Issuer represents to the Administrative Agent, the Collateral Agent and the Joint Lead Arrangers and Bookrunners that
it has, independently and without reliance upon the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and Bookrunners
or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation
into the business, operations, property, financial and other condition and creditworthiness of the Borrower and each other Credit Party
and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender, Letter of Credit Issuer and Swingline
Lender also represents that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent, the Joint
Lead Arrangers and Bookrunners or any other Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other
Credit Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of any of the Credit Parties. Except for notices, reports, and other documents expressly required
to be furnished to each Lender, Letter of Credit Issuer and Swingline Lender by the Administrative Agent hereunder, neither the Administrative
Agent, the Collateral Agent nor the Joint Lead Arrangers and Bookrunners shall have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, assets, operations, properties, financial condition, prospects or creditworthiness
of any Credit Party that may come into the possession of the Administrative Agent, the Collateral Agent or the Joint Lead Arrangers and
Bookrunners or any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates.
12.7 Indemnification.
The Lenders agree to severally indemnify each Agent in its capacity as such (to the extent not reimbursed by the Credit Parties and without
limiting the obligation of the Credit Parties to do so), ratably according to their respective portions of the Total Credit Exposure
in effect on the date on which indemnification is sought (or, if indemnification is sought after the Termination Date, ratably in accordance
with their respective portions of the Total Credit Exposure in effect immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, or disbursements of any kind whatsoever that may
at any time (including at any time following the payment of the Loans) be imposed on, incurred by or asserted against an Agent in any
way relating to or arising out of the Commitments, this Agreement, any of the other Credit Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative
Agent or the Collateral Agent under or in connection with any of the foregoing; provided that no Lender shall be liable to an
Agent for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct as determined by a final non-appealable
judgment of a court of competent jurisdiction; provided, further, that no action taken by the Administrative Agent in accordance with
the directions of the Required Lenders (or such other number or percentage of the Lenders as shall be required by the Credit Documents)
shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 12.7. In the case of any
investigation, litigation or proceeding giving rise to any liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever that may at any time occur (including at any time following the payment
of the Loans), this Section 12.7 applies whether any such investigation, litigation or proceeding is brought by any Lender
or any other Person. Without limitation of the foregoing, each Lender shall reimburse each Agent upon demand for its ratable share of
any costs or out-of-pocket expenses (including attorneys’ fees) incurred by such Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or
legal advice rendered in respect of rights or responsibilities under, this Agreement, any other Credit Document, or any document contemplated
by or referred to herein, to the extent that such Agent is not reimbursed for such expenses by or on behalf of Holdings or the Borrower;
provided that such reimbursement by the Lenders shall not affect Holdings’ or the Borrower’s continuing Reimbursement
Obligations with respect thereto. If any indemnity furnished to any Agent for any purpose shall, in the opinion of such Agent, be insufficient
or become impaired, such Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished; provided, in no event shall this sentence require any Lender to indemnify any Agent against any
liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s
pro rata portion thereof; and provided, further, this sentence shall not be deemed to require any Lender to indemnify any
Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement resulting from
such Agent’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction.
The agreements in this Section 12.7 shall survive the payment of the Loans and all other amounts payable hereunder. The indemnity
provided to each Agent under this Section 12.7 shall also apply to such Agent’s respective Affiliates, directors, officers,
members, controlling persons, employees, trustees, investment advisors and agents and successors.
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12.8 Agents
in Their Individual Capacities. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose
any duties or obligations upon, any Agent in its individual capacity as a Lender hereunder. Each Agent and its Affiliates may make loans
to, accept deposits from and generally engage in any kind of business with any Credit Party as though such Agent were not an Agent hereunder
and under the other Credit Documents. With respect to the Loans made by it, each Agent shall have the same rights and powers under this
Agreement and the other Credit Documents as any Lender and may exercise the same as though it were not an Agent, and the terms “Lender”
and “Lenders” shall include each Agent in its individual capacity, and none of the Joint Lead Arrangers and Bookrunners shall
have any powers, duties or responsibilities under this Agreement or any of the other Credit Documents, except in its capacity, as applicable,
as the Administrative Agent, the Collateral Agent, a Lender, the Swingline Lender or a Letter of Credit Issuer hereunder.
12.9 Successor
Agents. (a) Each of the Administrative Agent and the Collateral Agent may at any time give notice of its resignation to the
Lenders, the Letter of Credit Issuer and Holdings. Upon receipt of any such notice of resignation, the Required Lenders shall have the
right, subject to the consent of the Borrower (not to be unreasonably withheld or delayed) so long as no Event of Default under Sections
11.1 or 11.5 is continuing, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate
of any such bank with an office in the United States (other than any Disqualified Lender). If no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation
(the “Resignation Effective Date”), then the retiring Agent may on behalf of the Lenders, appoint a successor Agent
meeting the qualifications set forth above (including receipt of the Borrower’s consent); provided that if the Administrative
Agent or the Collateral Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such notice.
(b) If
the Person serving as the Administrative Agent is a Defaulting Lender pursuant to clause (v) of the definition of Lender
Default, the Required Lenders may to the extent permitted by applicable law, subject to the consent of the Borrower (not to be unreasonably
withheld or delayed), by notice in writing to the Borrower and such Person remove such Person as the Administrative Agent and, in consultation
with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders (with the consent
of Holdings as required above) and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the
Required Lenders and Holdings) (the “Removal Effective Date”), then such removal shall nonetheless become effective
in accordance with such notice on the Removal Effective Date.
(c) With
effect from the Resignation Effective Date or the Removal Effective Date (as applicable), (1) the retiring or removed agent shall
be discharged from its duties and obligations hereunder and under the other Credit Documents (except that in the case of any collateral
security held by the Collateral Agent on behalf of the Lenders, the Letter of Credit Issuer or the Swingline Lender under any of the
Credit Documents, the retiring or removed Collateral Agent shall continue to hold such collateral security as nominee until such time
as a successor Collateral Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to
or through the retiring or removed Administrative Agent shall instead be made by or to each Lender, the Letter of Credit Issuer and the
Swingline Lender directly, until such time as the Required Lenders appoint a successor Agent as provided for above in this paragraph
(and otherwise subject to the terms above). Upon the acceptance of a successor’s appointment as the Administrative Agent or the
Collateral Agent, as the case may be, hereunder, and upon the execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to the Mortgages, and such other instruments or notices, as may be necessary or desirable,
or as the Required Lenders may request, in order to continue the perfection of the Liens granted or purported to be granted by the Security
Documents, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or
retired) or removed Agent, and the retiring or removed Agent shall be discharged from all of its duties and obligations hereunder or
under the other Credit Documents (if not already discharged therefrom as provided above in this Section 12.9). Except as
provided above, any resignation or removal of JPMorgan Chase Bank, N.A. as the Administrative Agent pursuant to this Section 12.9
shall also constitute the resignation or removal of JPMorgan Chase Bank, N.A. as the Collateral Agent. The fees payable by Holdings or
the Borrower (following the effectiveness of such appointment) to such Agent shall be the same as those payable to its predecessor unless
otherwise agreed between Holdings or Borrower and such successor. After the retiring or removed Agent’s resignation or removal
hereunder and under the other Credit Documents, the provisions of this Section 12 (including Section 12.7) and
Section 13.5 shall continue in effect for the benefit of such retiring or removed Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Agent was acting
as an Agent.
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(d) Any
resignation by or removal of JPMorgan Chase Bank, N.A. as the Administrative Agent pursuant to this Section 12.9 shall also
constitute its resignation or removal as Swingline Lender and its Affiliate’s resignation or removal as the Letter of Credit Issuer.
Upon the acceptance of a successor’s appointment as the Administrative Agent hereunder, (a) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring Letter of Credit Issuer and Swingline Lender,
(b) the retiring Letter of Credit Issuer and Swingline Lender shall be discharged from all of their respective duties and obligations
hereunder or under the other Credit Documents, and (c) the successor Letter of Credit Issuer shall issue letters of credit in substitution
for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring
Letter of Credit Issuer to effectively assume the obligations of the retiring Letter of Credit Issuer with respect to such Letters of
Credit.
12.10 Withholding
Tax. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender under any
Credit Document an amount equivalent to any applicable withholding Tax. If the Internal Revenue Service or any authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for
the account of any Lender for any reason (including because the appropriate form was not delivered, was not properly executed, or because
such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of,
withholding Tax ineffective) or if the Administrative Agent reasonably determines that a payment was made to a Lender pursuant to this
Agreement without deduction of applicable withholding Tax from such payment, such Lender shall indemnify the Administrative Agent (to
the extent that the Administrative Agent has not already been reimbursed by any applicable Credit Party and without limiting the obligation
of any applicable Credit Party to do so), fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise,
including penalties, additions to Tax and interest, together with all expenses incurred, including legal expenses, allocated staff costs
and any out of pocket expenses. 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 Credit Document against any amount due to the Administrative
Agent under this Section 12.10. The agreements in this Section 12.10 shall survive the resignation and/or replacement
of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the
repayment, satisfaction or discharge of all other Obligations. For the avoidance of doubt, for purposes of this Section 12.10,
the term Lender includes the Letter of Credit Issuer and the Swingline Lender.
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12.11 Agents
Under Security Documents and Guarantee. Each Secured Party hereby further authorizes the Administrative Agent or the Collateral Agent,
as applicable, on behalf of and for the benefit of the Secured Parties, to be the agent for and representative of the Secured Parties
with respect to the Collateral and the Security Documents. Subject to Section 13.1, without further written consent or authorization
from any Secured Party, the Administrative Agent or the Collateral Agent, as applicable, may execute any documents or instruments necessary
to (a) release any Lien, in whole or in part, on any property granted to or held by the Administrative Agent or the Collateral Agent
(or any sub-agent thereof) under any Credit Document (i) upon the Termination Date, (ii) that is sold or to be sold or transferred
as part of or in connection with any sale, disposition or other transfer permitted hereunder or under any other Credit Document to a
Person that is not a Credit Party or in connection with the designation of any Restricted Subsidiary as an Unrestricted Subsidiary, (iii) if
the property subject to such Lien is owned by a Guarantor, upon the release of such Guarantor from its Guarantee otherwise in accordance
with the Credit Documents, (iv) as to the extent provided in the Security Documents, (v) that constitutes Excluded Property
or Excluded Stock and Stock Equivalents or (vi) if approved, authorized or ratified in writing in accordance with Section 13.1;
(b) release any Guarantor (other than Holdings (except as otherwise permitted by Section 10.3)) from its obligations
under the Guarantee if such Person ceases to be a Restricted Subsidiary (or becomes an Excluded Subsidiary) as a result of a transaction
or designation permitted hereunder; (c) subordinate any Lien on any property granted to or held by the Administrative Agent or the
Collateral Agent under any Credit Document to the holder of any Lien permitted under clause (iv) (solely with respect
to Section 10.1(d)), (v), (vii), (xiii), (xxix), (xxxi), and (xxxvix) of the definition
of Permitted Lien or if required under the terms of any lease, easement, right of way or similar agreement effecting the Mortgaged Property
provided such lease, easement, right of way or similar agreement constitutes a Permitted Lien; and (d) enter into subordination
or intercreditor agreements with respect to Indebtedness to the extent the Administrative Agent or the Collateral Agent is otherwise
contemplated herein as being a party to such intercreditor or subordination agreement, including the First Lien Intercreditor Agreement
and the Second Lien Intercreditor Agreement.
The Collateral Agent shall
have its own independent right to demand payment of the amounts payable by the Borrower under this Section 12.11, irrespective
of any discharge of the Borrower’s obligations to pay those amounts to the other Lenders resulting from failure by them to take
appropriate steps in insolvency proceedings affecting the Borrower to preserve their entitlement to be paid those amounts.
Any amount due and payable
by the Borrower to the Collateral Agent under this Section 12.11 shall be decreased to the extent that the other Lenders
have received (and are able to retain) payment in full of the corresponding amount under the other provisions of the Credit Documents
and any amount due and payable by the Borrower to the Collateral Agent under those provisions shall be decreased to the extent that the
Collateral Agent has received (and is able to retain) payment in full of the corresponding amount under this Section 12.11.
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12.12 Right
to Realize on Collateral and Enforce Guarantee. Anything contained in any of the Credit Documents to the contrary notwithstanding,
Holdings, the Agents, and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize
upon any of the Collateral or to enforce the Guarantee, it being understood and agreed that all powers, rights, and remedies hereunder
may be exercised solely by the Administrative Agent, on behalf of the Secured Parties in accordance with the terms hereof and all powers,
rights, and remedies under the Security Documents may be exercised solely by the Collateral Agent, and (ii) in the event of a foreclosure
by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Collateral Agent or any
Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent,
as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities
unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment
of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations
as a credit on account of the purchase price for any collateral payable by the Collateral Agent at such sale or other disposition. No
holder of Secured Hedge Obligations or Secured Cash Management Obligations shall have any rights in connection with the management or
release of any Collateral or of the obligations of any Credit Party under this Agreement. No holder of Secured Hedge Obligations or Secured
Cash Management Obligations that obtains the benefits of any Guarantee or any Collateral by virtue of the provisions hereof or of any
other Credit 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 Credit Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than
in its capacity as a Lender or Agent and, in such case, only to the extent expressly provided in the Credit Documents. Notwithstanding
any other provision of this Agreement 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 Hedge Agreements and Secured Cash Management
Agreements, 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 or Hedge Bank, as the case may be.
12.13 Intercreditor
Agreements Govern. The Administrative Agent, the Collateral Agent, and each Lender (a) hereby agrees that it will be bound by
and will take no actions contrary to the provisions of any intercreditor agreement entered into pursuant to the terms hereof, (b) hereby
authorizes and instructs the Administrative Agent and the Collateral Agent to enter into each intercreditor agreement entered into pursuant
to the terms hereof and to subject the Liens securing the secured obligations to the provisions thereof, and (c) hereby authorizes
and instructs the Administrative Agent and the Collateral Agent to enter into any intercreditor agreement that includes, or to amend
any then existing intercreditor agreement to provide for, the terms described in the definition of Permitted Other Indebtedness.
12.14 Acknowledgements
of Lenders and Issuing Banks. (a) Each Lender and each Letter of Credit Issuer represents and warrants that (i) the Credit
Documents set forth the terms of a commercial lending facility, (ii) it is engaged in making, acquiring or holding commercial loans
and in providing other facilities set forth herein as may be applicable to such Lender or Letter of Credit Issuer, in each case in the
ordinary course of business, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument (and
each Lender and each Letter of Credit Issuer agrees not to assert a claim in contravention of the foregoing), (iii) it has, independently
and without reliance upon the Administrative Agent, any Joint Lead Arranger or Bookrunner, any syndication agent, any co-documentation
agent or any other Lender or Letter of Credit Issuer, or any of the Related Parties of any of the foregoing, and based on such documents
and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and
to make, acquire or hold Loans hereunder and (iv) it is sophisticated with respect to decisions to make, acquire and/or hold commercial
loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Letter of Credit Issuer, and either
it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such
other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender
and each Letter of Credit Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent, any
Joint Lead Arranger and Bookrunner or any other Lender or Letter of Credit Issuer, or any of the Related Parties of any of the foregoing,
and based on such documents and information (which may contain material, non-public information within the meaning of the United States
securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Credit Document or any related agreement or any
document furnished hereunder or thereunder.
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(b) (i) Each
Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in
its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment,
prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were
erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof),
such Lender shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of
any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect
of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid
to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such
Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment
with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without
limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any
Lender under this Section 12.14(b) shall be conclusive, absent manifest error.
(ii) Each
Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that
is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or
any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied
by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender
agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender
shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly,
but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion
thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including
the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent
at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation from time to time in effect.
(iii) The
Borrower and each other Credit Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered
from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all
the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise
satisfy any Obligations owed by 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 of the Borrower or any other Loan Party.
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(iv) Each
party’s obligations under this Section 12.14(b) shall survive the resignation or replacement of the Administrative Agent
or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction
or discharge of all Obligations under any Credit Document.
Section 13. Miscellaneous
13.1 Amendments,
Waivers, and Releases. Except as otherwise expressly set forth in the Credit Documents, neither this Agreement nor any other Credit
Document, nor any terms hereof or thereof, may be amended, supplemented or modified except in accordance with the provisions of this
Section 13.1. Except as provided to the contrary in the Credit Documents (including under Section 2.14 or 2.15
or the fifth and sixth paragraphs hereof in respect of Replacement Term Loans, and other than with respect to any amendment, modification
or waiver contemplated in the proviso to clause (i) below), which shall only require the consent of the Lenders expressly
set forth therein and not Required Lenders, the Required Lenders may, or, with the written consent of the Required Lenders, the Administrative
Agent and/or the Collateral Agent may, from time to time, (a) enter into with the relevant Credit Party or Credit Parties written
amendments, supplements or modifications hereto and to the other Credit Documents for the purpose of adding any provisions to this Agreement
or the other Credit Documents or changing in any manner the rights of the Lenders or of the Credit Parties hereunder or thereunder or
(b) waive in writing, on such terms and conditions as the Required Lenders or the Administrative Agent and/or the Collateral Agent,
as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Credit Documents or any Default
or Event of Default and its consequences; provided, however, that each such waiver and each such amendment, supplement
or modification shall be effective only in the specific instance and for the specific purpose for which given; and provided, further,
that no such waiver and no such amendment, supplement or modification shall (x) (i) forgive or reduce any portion of any Loan
or extend the final scheduled maturity date of any Loan or reduce the stated rate (it being understood that only the consent of the Required
Lenders shall be necessary to waive any obligation of the Borrower to pay interest at the Default Rate or amend Section 2.8(c)),
or forgive any portion thereof, or extend the date for the payment, of any principal, interest or fee payable hereunder (other than as
a result of waiving the applicability of any post-default increase in interest rates), or extend the final expiration date of any Letter
of Credit beyond the L/C Facility Maturity Date, or amend or modify any provisions of Section 13.20, or amend or modify the
provisions of Section 11.13 or Section 13.8(a) in a manner that would alter the payment waterfall or pro
rata sharing of payments required thereby, or subordinate in right of payment of the Loans to any other obligation or subordinate Liens
on all or substantially all of the Collateral granted to the Administrative Agent under the Security Documents for the benefit of the
Lenders, or make any Loan, interest, Fee or other amount payable in any currency other than expressly provided herein, in each case without
the written consent of each Lender directly and adversely affected thereby; provided that a waiver of any condition precedent
in Section 6 or 7 of this Agreement, the waiver of any Default, Event of Default, default interest, mandatory prepayment
or reductions, any modification, waiver or amendment to the financial covenant definitions or financial ratios or any component thereof
or the waiver of any other covenant shall not constitute an increase of any Commitment of a Lender, a reduction or forgiveness in the
interest rates or the fees or premiums or a postponement of any date scheduled for the payment, premium of principal or interest or an
extension of the final maturity of any Loan or the scheduled termination date of any Commitment, in each case for purposes of this clause
(i), or (ii) consent to the assignment or transfer by the Borrower of its rights and obligations under any Credit Document to which
it is a party (except as permitted pursuant to Section 10.3), in each case without the written consent of each Lender directly
and adversely affected thereby, or (iii) amend, modify or waive any provision of Section 12 without the written consent
of the then-current Administrative Agent and Collateral Agent in a manner that directly and adversely affects such Person, or (iv) amend,
modify or waive any provision of Section 3 with respect to any Letter of Credit without the written consent of the Letter
of Credit Issuer to the extent such amendment, modification or waiver directly and adversely affects the Letters of Credit Issuer, or
(v) amend, modify Section 2.16 with respect to any Swingline Loan without the written consent of the Swingline Lender
to the extent such amendment, modification or waiver directly and adversely affects the Swingline Lender, or (vi) change any Revolving
Credit Commitment to a Term Loan Commitment, or change any Term Loan Commitment to a Revolving Credit Commitment, in each case without
the prior written consent of each Lender directly and adversely affected thereby, or (vii) release all or substantially all of the
Guarantors under the Guarantees (except as expressly permitted by the Guarantees, the First Lien Intercreditor Agreement or this Agreement)
or release all or substantially all of the Collateral under the Security Documents (except as expressly permitted by the Security Documents,
the First Lien Intercreditor Agreement or this Agreement) without the prior written consent of each Lender, or (viii) decrease the
Initial Term Loan Repayment Amount applicable to Initial Term Loans or extend any scheduled Initial Term Loan Repayment Date applicable
to Initial Term Loans, in each case without the written consent of each Lender directly and adversely affected thereby, or (ix) reduce
the percentages specified in the definitions of the terms Required Lenders, Required Revolving Credit Lenders or Required Initial Term
Loan Lenders or amend, modify or waive any provision of this Section 13.1 that has the effect of decreasing the number of
Lenders that must approve any amendment, modification or waiver without the written consent of each Lender directly and adversely affected
thereby, (y) notwithstanding anything to the contrary in clause (x), (i) extend the final expiration date of any Lender’s
Commitment or (ii) increase the aggregate amount of the Commitments of any Lender, in each case, without the written consent of
such Lender, or (z) in connection with an amendment that addresses solely a repricing transaction in which any Class of Term
Loans is refinanced with a replacement Class of Term Loans bearing (or is modified in such a manner such that the resulting Term
Loans bear) a lower Effective Yield (a “Permitted Repricing Amendment”), only the consent of the Lenders holding Term
Loans subject to such permitted repricing transaction that will continue as a Lender in respect of the repriced tranche of Term Loans
or modified Term Loans.
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Notwithstanding anything
to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder,
except (x) that the Commitment of such Lender may not be increased or extended without the consent of such Lender and (y) for
any such amendment, waiver or consent that treats such Defaulting Lender disproportionately and adversely from the other Lenders of the
same Class (other than because of its status as a Defaulting Lender).
Notwithstanding the foregoing,
only the Required Revolving Credit Lenders shall have the ability to waive, amend, supplement or modify the covenant set forth in Section 10.7
(or the defined terms to the extent used therein but not as used in any other Section of this Agreement) or Section 11
(solely as it relates to Section 10.7).
Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the affected Lenders and shall be binding upon Holdings, the Borrower,
such Lenders, the Administrative Agent and all future holders of the affected Loans. In the case of any waiver, Holdings, the Borrower,
the Lenders and the Administrative Agent shall be restored to their former positions and rights hereunder and under the other Credit
Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing, it being understood that no such
waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. In connection with
the foregoing provisions, the Administrative Agent may, but shall have no obligations to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of such Lender.
Notwithstanding the foregoing,
in addition to any credit extensions and related Joinder Agreement(s) effectuated without the consent of Lenders in accordance with
Section 2.14, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the
Administrative Agent, Holdings and the Borrower (a) to add one or more additional credit facilities to this Agreement and to permit
the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably
in the benefits of this Agreement and the other Credit Documents with the Term Loans and the Revolving Credit Loans and the accrued interest
and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of
the Required Lenders and other definitions related to such New Term Loans and Revolving Credit Loans.
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In addition, notwithstanding
the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, Holdings, the Borrower and the Lenders
providing the relevant Replacement Term Loans to permit the refinancing of all outstanding Term Loans of any Class (“Refinanced
Term Loans”) with a replacement term loan tranche (“Replacement Term Loans”) hereunder; provided
that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced
Term Loans (plus an amount equal to all accrued but unpaid interest, fees, premiums, and expenses incurred in connection therewith),
(b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term
Loans, unless any such Applicable Margin applies after the Initial Term Loan Maturity Date, (c) the weighted average life to maturity
of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time
of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment
of the applicable Term Loans), and (d) the covenants, events of default and guarantees shall be not materially more restrictive
(taken as a whole) (as determined in good faith by the Borrower) to the Lenders providing such Replacement Term Loans than the covenants,
events of default and guarantees applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants, events
of default and guarantees applicable to any period after the maturity date in respect of the Refinanced Term Loans in effect immediately
prior to such refinancing.
The Lenders hereby irrevocably
agree that the Liens granted to the Collateral Agent by the Credit Parties on any Collateral shall be automatically released (i) in
full, upon the Termination Date, (ii) upon the sale or other disposition of such Collateral (including as part of or in connection
with any other sale or other disposition permitted hereunder) to any Person other than another Credit Party, to the extent such sale
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 Credit Party upon its reasonable request without further inquiry), (iii) to the extent such
Collateral is comprised of property leased to a Credit Party, upon termination or expiration of such lease, (iv) 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 this Section 13.1), (v) to the extent the property constituting such Collateral is
owned by any Guarantor, upon the release of such Guarantor from its obligations under the applicable Guarantee (in accordance with the
second following sentence), (vi) as required to effect any sale or other disposition of Collateral in connection with any exercise
of remedies of the Collateral Agent pursuant to the Security Documents, and (vii) if such assets constitute Excluded Property or
Excluded Stock and Stock Equivalents. 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 Credit Parties in respect of) all interests
retained by the Credit 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 Credit Documents. Additionally, the Lenders hereby irrevocably
agree that any Restricted Subsidiary that is a Guarantor shall be released from the Guarantees upon consummation of any transaction not
prohibited hereunder resulting in such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise no longer being required
to be a Guarantor hereunder. The Lenders hereby authorize the Administrative Agent and the Collateral Agent, as applicable, to execute
and deliver any instruments, documents, and agreements necessary or desirable to evidence and 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.
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Notwithstanding anything
herein to the contrary, the Credit Documents may be amended to add syndication or documentation agents and make customary changes and
references related thereto with the consent of only the Borrower and the Administrative Agent.
Notwithstanding anything
in this Agreement (including, without limitation, this Section 13.1) or any other Credit Document to the contrary, (i) this
Agreement and the other Credit Documents may be amended to effect an incremental facility or extension facility pursuant to Section 2.14
(and the Administrative Agent and the Borrower may effect such amendments to this Agreement and the other Credit Documents without the
consent of any other party as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower,
to effect the terms of any such incremental facility or extension facility); (ii) no Lender consent is required to effect any amendment
or supplement to a First Lien Intercreditor Agreement, Second Lien Intercreditor Agreement or other intercreditor agreement or arrangement
permitted under this Agreement that is for the purpose of adding the holders of any Indebtedness as expressly contemplated by the terms
of a First Lien Intercreditor Agreement, Second Lien Intercreditor Agreement or such other intercreditor agreement or arrangement permitted
under this Agreement, as applicable (it being understood that any such amendment or supplement may make such other changes to the applicable
intercreditor agreement as, in the good faith determination of the Administrative Agent in consultation with the Borrower, are required
to effectuate the foregoing; provided that such other changes are not adverse, in any material respect, to the interests of the
Lenders taken as a whole); provided, further, that no such agreement shall amend, modify or otherwise directly and adversely
affect the rights or duties of the Administrative Agent hereunder or under any other Credit Document without the prior written consent
of the Administrative Agent; (iii) any provision of this Agreement or any other Credit Document may be amended by an agreement in
writing entered into by the Borrower and the Administrative Agent to (x) cure any ambiguity, omission, mistake, defect or inconsistency
(as reasonably determined by the Administrative Agent and the Borrower) and (y) to effect administrative changes of a technical
or immaterial nature (including to effect changes to the terms and conditions applicable solely to the Swingline Lender or Letter of
Credit Issuer in respect of issuances of Swingline Loans or Letters of Credit, respectively) and such amendment shall be deemed approved
by the Lenders if the Lenders shall have received at least five Business Days’ prior written notice of such change and the Administrative
Agent shall not have received, within five 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; and (iv) guarantees, collateral documents and related documents
executed by Credit Parties in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may
be, together with any other Credit Document, entered into, amended, supplemented or waived, without the consent of any other Person,
by the applicable Credit Party or Credit Parties and the Administrative Agent or the Collateral Agent in its or their respective sole
discretion, to (A) effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral
or additional property to become Collateral for the benefit of the Secured Parties, (B) as required by local law or advice of counsel
to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests
therein comply with applicable Requirement of Law, or (C) to cure ambiguities, omissions, mistakes or defects (as reasonably determined
by the Administrative Agent and the Borrower) or to cause such guarantee, collateral security document or other document to be consistent
with this Agreement and the other Credit Documents.
Notwithstanding anything
in this Agreement or any Security Document to the contrary, the Administrative Agent may, in its sole discretion, grant extensions of
time for the satisfaction of any of the requirements under Sections 9.12, 9.13 and 9.14 or any Security Documents
in respect of any particular Collateral or any particular Subsidiary if it determines that the satisfaction thereof with respect to such
Collateral or such Subsidiary cannot be accomplished without undue expense or unreasonable effort or due to factors beyond the control
of Holdings, the Borrower and the Restricted Subsidiaries by the time or times at which it would otherwise be required to be satisfied
under this Agreement or any Security Document.
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13.2 Notices.
Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or under any other Credit Document
shall be in writing (including by facsimile transmission). All such written notices shall be mailed, faxed or delivered to the applicable
address, facsimile number or electronic mail address, and all notices and other communications expressly permitted hereunder to be given
by telephone shall be made to the applicable telephone number, as follows:
(a) if
to Holdings, the Borrower, the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer or the Swingline Lender, to the
address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 13.2 or to such other
address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other
parties; and
(b) if
to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire
or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice
to Holdings and the Borrower, the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer and the Swingline Lender.
All such notices and other communications shall
be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if
delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, three Business
Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone;
and (D) if delivered by electronic mail, when delivered; provided that notices and other communications to the Administrative
Agent or the Lenders pursuant to Sections 2.3, 2.6, 2.9, 4.2 and 5.1 shall not be effective until
received.
13.3 No
Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent, the Collateral
Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Credit Documents 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 are cumulative
and not exclusive of any rights, remedies, powers, and privileges provided by law.
13.4 Survival
of Representations and Warranties. All representations and warranties made hereunder, in the other Credit Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
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13.5 Payment
of Expenses; Indemnification.
(a) Each
of Holdings and the Borrower, jointly and severally, agree (i) to pay or reimburse each of the Agents for all their reasonable and
documented out-of-pocket costs and expenses (without duplication) incurred in connection with the development, preparation, execution
and delivery of, and any amendment, supplement, modification to, waiver and/or enforcement this Agreement and the other Credit Documents
and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated
hereby and thereby, including the reasonable fees, disbursements and other charges of Cravath, Swaine & Moore LLP (or such other
counsel as may be agreed by the Administrative Agent and the Borrower and in each case subject to the outside counsel guidelines established
by Holdings and the Borrower), one counsel in each relevant local jurisdiction with the consent of the Borrower (such consent not to
be unreasonably withheld or delayed), (ii) to pay or reimburse each Agent for all their reasonable and documented out-of-pocket
costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Credit Documents
and any such other documents, including the reasonable fees, disbursements and other charges of one firm or counsel to the Administrative
Agent and the Collateral Agent, and, to the extent required, one firm or local counsel in each relevant local jurisdiction with the Borrower’s
consent (such consent not to be unreasonably withheld or delayed (which may include a single special counsel acting in multiple jurisdictions)),
and (iii) to pay, indemnify and hold harmless each Lender, each Agent, the Letter of Credit Issuer and the Swingline Lender and
their respective Related Parties (without duplication) (the “Indemnified Persons”) from and against any and all losses,
claims, damages, liabilities, obligations, demands, actions, judgments, suits, costs, expenses, disbursements or penalties of any kind
or nature whatsoever (and the reasonable and documented out-of-pocket fees, expenses, disbursements and other charges of one firm of
counsel for all Indemnified Persons, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified
Person affected by such conflict notifies the Borrower of any existence of such conflict and in connection with the investigating or
defending any of the foregoing (including the reasonable fees) has retained its own counsel, of another firm of counsel in each relevant
jurisdiction for such affected Indemnified Person), and to the extent required, one firm or local counsel in each relevant jurisdiction
(which may include a single special counsel acting in multiple jurisdictions)) of any such Indemnified Person arising out of or with
respect to the Transactions or to the execution, enforcement, delivery, performance and administration of this Agreement, the other Credit
Documents and any such other documents or relating to any action, claim, litigation, investigation or other proceeding (regardless of
whether such Indemnified Person is a party thereto or whether or not such action, claim, litigation or proceeding was brought by Holdings,
any of its Subsidiaries or any other Person), arising out of the foregoing, including any of the foregoing relating to the violation
of, noncompliance with or liability under, any Environmental Law relating in any way to the Borrower or any of its Subsidiaries or any
actual or alleged presence, Release or threatened Release of Hazardous Materials relating in any way to Borrower or any of its Subsidiaries
(all the foregoing in this clause (iii), collectively, the “Indemnified Liabilities”); provided
that Holdings and the Borrower shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities to
the extent arising from (i) the gross negligence, bad faith or willful misconduct of such Indemnified Person or any of its Related
Parties as determined in a final and non-appealable judgment of a court of competent jurisdiction, (ii) a material breach of the
obligations of such Indemnified Person or any of its Related Parties under the terms of this Agreement by such Indemnified Person or
any of its Related Parties as determined in a final and non-appealable judgment of a court of competent jurisdiction or (iii) any
proceeding between and among Indemnified Persons that does not involve an act or omission by Holdings, the Borrower or their respective
Restricted Subsidiaries; provided the Agents, to the extent acting in their capacity as such, shall remain indemnified in respect of
such proceeding, to the extent that neither of the exceptions set forth in clause (i) or (ii) of the immediately
preceding proviso applies to such person at such time. The agreements in this Section 13.5 shall survive repayment of the
Loans and all other amounts payable hereunder. This Section 13.5 shall not apply with respect to Taxes, other than any Taxes
that represent losses, claims, damages, liabilities, obligations, penalties, actions, judgments, suits, costs, expenses or disbursements
arising from any non-Tax claim.
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(b) No
Credit Party nor any Indemnified Person shall have any liability for any special, punitive, indirect or consequential damages resulting
from this Agreement or any other Credit Document or arising out of its activities in connection herewith or therewith (whether before
or after the Closing Date); provided that the foregoing shall not limit Holdings’ and the Borrower’s indemnification
obligations to the Indemnified Persons pursuant to Section 13.5(a) in respect of damages incurred or paid by an Indemnified
Person to a third party. No Indemnified Person shall be liable for any damages arising from the use by unintended recipients of any information
or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with
this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby, except to the extent that such damages
have resulted from the willful misconduct, bad faith or gross negligence of any Indemnified Person or any of its Related Parties as determined
by a final and non-appealable judgment of a court of competent jurisdiction.
13.6 Successors
and Assigns; Participations and Assignments.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that (i) except as expressly permitted by Section 10.3, the Borrower may not assign
or otherwise transfer any of their rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender
may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 13.6. Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants (to the extent provided in clause (c) of this Section 13.6)
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent, the
Letter of Credit Issuer, the Swingline Lender and the Lenders and each other Person entitled to indemnification under Section 13.5)
any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i)
Subject to the conditions set forth in clause (b)(ii) below and Section 13.7, 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 Commitments
and the Loans (including participations in L/C Obligations or Swingline Loans) at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld or delayed; it being understood that, without limitation, the relevant Person shall have
the right to withhold its consent to any assignment if, in order for such assignment to comply with applicable law, the Borrower would
be required to obtain the consent of, or make any filing or registration with, any Governmental Authority) of:
(A) the
Borrower (not to be unreasonably withheld or delayed); provided that no consent of the Borrower shall be required (1) for
an assignment of Term Loans to (X) a Lender, (Y) an Affiliate of a Lender, or (Z) an Approved Fund, (2) for an assignment
of Loans or Commitments to any assignee if an Event of Default under Section 11.1 or Section 11.5 (with respect
to the Borrower) has occurred and is continuing or (3) with respect to the Term Loans only, unless the Borrower has already objected
thereto by delivering written notice to the Administrative Agent within ten (10) Business Days after the receipt of a written request
for consent thereto; and
(B) the
Administrative Agent (not to be unreasonably withheld or delayed) and, with respect to Revolving Credit Commitments and Revolving Credit
Loans only, each Swingline Lender and Letter of Credit Issuer (not to be unreasonably withheld or delayed); provided that no consent
of the Administrative Agent shall be required for an assignment of any Term Loan to a Lender, an Affiliate of a Lender, an Approved Fund.
Notwithstanding the foregoing,
no such assignment shall be made (i) to a natural Person, Disqualified Lender (provided, however, that assignments
may be made to Disqualified Lenders unless a list of Disqualified Lenders has been made available to all Lenders who so request) or Defaulting
Lender and (ii) with respect to the Revolving Credit Commitments, Holdings, the Borrower or any of their Subsidiaries or any Affiliated
Lender (other than an Affiliated Institutional Lender). For the avoidance of doubt, the Administrative Agent shall bear no responsibility
or liability for monitoring and enforcing the list of Persons who are Disqualified Lenders at any time.
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(ii) Assignments
shall be subject to the following additional conditions:
(A) except
in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount
of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 in the case of Revolving Credit Commitments and $1,000,000 in the case of Term
Loans, unless each of the Borrower and the Administrative Agent otherwise consents (which consents shall not be unreasonably withheld
or delayed); provided that no such consent of the Borrower shall be required if an Event of Default under Section 11.1
or Section 11.5 has occurred and is continuing; provided, further, that contemporaneous assignments by a Lender
and its Affiliates or Approved Funds shall be aggregated for purposes of meeting the minimum assignment amount requirements stated above
(and simultaneous assignments to or by two or more Related Funds shall be treated as one assignment), if any;
(B) 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; provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all
the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the
parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance via an electronic settlement
system or other method reasonably acceptable to the Administrative Agent, together with a processing and recordation fee in the amount
of $3,500; provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation
fee in the case of any assignment; provided, further, that such processing and recordation fee shall not be payable in
the case of assignments by any Agent or any of its Affiliates;
(D) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire in a form approved by
the Administrative Agent (the “Administrative Questionnaire”) and applicable tax forms (as required under Section 5.4(e));
and
(E) any
assignment to Holdings, the Borrower, any Subsidiary or an Affiliated Lender (other than an Affiliated Institutional Lender) shall also
be subject to the requirements of Section 13.6(h).
For the avoidance of doubt,
the Administrative Agent bears no responsibility for tracking or monitoring assignments to or participations by any Affiliated Lender
or any Disqualified Lender.
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(iii) Subject
to acceptance and recording thereof pursuant to clause (b)(v) of this Section 13.6, from and after the effective
date specified in each Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance 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 2.10,
2.11, 5.4 and 13.5). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does
not comply with this Section 13.6 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 clause (c) of this Section 13.6. For the avoidance of doubt,
in case of an assignment to a new Lender pursuant to this Section 13.6, (i) the Administrative Agent, the new Lender
and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed
had the new Lender been an original Lender signatory to this Agreement with the rights and/or obligations acquired or assumed by it as
a result of the assignment and to the extent of the assignment the assigning Lender shall each be released from further obligations under
the Credit Documents and (ii) the benefit of each Security Document shall be maintained in favor of the new Lender.
(iv) The
Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the Administrative Agent’s
Office a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amount of the Loans (and stated interest amounts) and any payment made by the Letter of
Credit Issuer under any Letter of Credit or by the Swingline Lender under any Swingline Loan owing to each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error,
and the Borrower, the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer, the Swingline Lender 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, the Collateral Agent,
the Letter of Credit Issuer, the Swingline Lender, the Administrative Agent and its Affiliates and, with respect to itself, any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon
its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, the assignee’s completed
Administrative Questionnaire and applicable tax forms (unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in clause (b) of this Section 13.6 and any written consent to such assignment required by clause
(b) of this Section 13.6, the Administrative Agent shall promptly accept such Assignment and Acceptance and record
the information contained therein in the Register. No assignment, whether or not evidenced by a promissory note, shall be effective for
purposes of this Agreement unless it has been recorded in the Register as provided in this clause (b)(v).
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(c) (i) Any
Lender may, without the consent of the Borrower or the Administrative Agent, the Letter of Credit Issuer or the Swingline Lender, sell
participations to one or more banks or other entities (other than (x) a natural person, (y) Holdings and its Subsidiaries and
(z) any Disqualified Lender provided, however, that, notwithstanding clause (y) hereof, participations may be
sold to Disqualified Lenders unless a list of Disqualified Lenders has been made available to all Lenders who so request) (each, a “Participant”)
in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments
and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (C) the
Borrower, the Administrative Agent, the Letter of Credit Issuer, 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. For the avoidance of doubt, the Administrative
Agent shall bear no responsibility or liability for monitoring and enforcing the list of Disqualified Lenders or the sales of participations
thereto at any time. 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 to approve any amendment, modification or waiver of any provision of this Agreement
or any other Credit Document; provided that such agreement or instrument may provide that such Lender will not, without the consent
of the Participant, agree to any amendment, modification or waiver described in clauses (i) and (vii) of the
second proviso to Section 13.1 that affects such Participant. Subject to clause (c)(ii) of this Section 13.6,
the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.10, 2.11, 3.5, and 5.4
to the same extent as if it were a Lender (subject to the limitations and requirements of those Sections as though it were a Lender and
had acquired its interest by assignment pursuant to clause (b) of this Section 13.6, including the requirements
of clause (e) of Section 5.4 (it being agreed that any documentation required under Section 5.4(e) shall
be provided to the participating Lender)). To the extent permitted by law, each Participant also shall be entitled to the benefits of
Section 13.8(b) as though it were a Lender; provided such Participant shall be subject to Section 13.8(a) as
though it were a Lender.
(ii) A
Participant shall not be entitled to receive any greater payment under Section 2.10, 2.11, 3.5 or 5.4
than the applicable Lender would have been entitled to receive absent the sale of the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower’s prior written consent (which consent shall not be
unreasonably withheld). Each Lender that sells a participation shall, acting for this purpose as a non-fiduciary agent of the Borrower,
maintain a register on which it enters the name and address of each Participant and the principal amounts (and 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 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. No Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including
the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit
or its other obligations under any Credit Document) except to the extent that such disclosure is necessary to establish that such commitment,
loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.
(d) Any
Lender may, without the consent of the Borrower or the Administrative Agent, at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank or other central bank having jurisdiction over such Lender, and this Section 13.6 shall
not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(e) Subject
to Section 13.16, the Borrower authorizes each Lender to disclose to any Participant, secured creditor of such Lender or
assignee (each, a “Transferee”) and any prospective Transferee any and all financial information in such Lender’s
possession concerning the Borrower and their Affiliates that has been delivered to such Lender by or on behalf of the Borrower and their
Affiliates pursuant to this Agreement or that has been delivered to such Lender by or on behalf of the Borrower and their Affiliates
in connection with such Lender’s credit evaluation of the Borrower and their Affiliates prior to becoming a party to this Agreement.
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(f) The
words “execution,” “signed,” “signature,” and words of like import in or related to any document
to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and
Acceptances, amendments or other modifications, Notices of Borrowing, waivers and consents) shall be deemed to include electronic signatures
or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually
executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable
law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
(g) SPV
Lender. Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant
to a special purpose funding vehicle (an “SPV”), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute
a commitment by any SPV to make any Loan and (ii) if an SPV elects not to exercise such option or otherwise fails to provide all
or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan
by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting
Lender. Each party hereto hereby agrees that no SPV shall be liable for any indemnity or similar payment obligation under this Agreement
(all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in
full of all outstanding commercial paper or other senior indebtedness of any SPV, it shall not institute against, or join any other Person
in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of
the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 13.6,
any SPV may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial
institutions (consented to by the Borrower and the Administrative Agent) other than a Disqualified Lender providing liquidity and/or
credit support to or for the account of such SPV to support the funding or maintenance of Loans and (ii) subject to Section 13.16,
disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPV. This Section 13.6(g) may not be amended without
the written consent of the SPV. Notwithstanding anything to the contrary in this Agreement but subject to the following sentence, each
SPV shall be entitled to the benefits of Sections 2.10, 2.11 and 5.4 to the same extent as if it were a Lender (subject
to the limitations and requirements of those Sections as though it were a Lender and had acquired its interest by assignment pursuant
to clause (b) of this Section 13.6, including the requirements of clause (e) of Section 5.4
(it being agreed that any documentation required under Section 5.4(e) shall be provided to the Granting Lender)). Notwithstanding
the prior sentence, an SPV shall not be entitled to receive any greater payment under Section 2.10, 2.11 or 5.4
than its Granting Lender would have been entitled to receive absent the grant to such SPV, unless such grant to such SPV is made with
the Borrower’s prior written consent (which consent shall not be unreasonably withheld).
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(h) Notwithstanding
anything to the contrary contained herein, (x) any Lender may, at any time, assign all or a portion of its rights and obligations
under this Agreement in respect of its Term Loans to Holdings, the Borrower, any Subsidiary or an Affiliated Lender and (y) Holdings,
the Borrower and any Subsidiary may, from time to time, purchase or prepay Term Loans, in each case, on a non-pro rata basis through
(x) Dutch auction procedures open to all applicable Lenders on a pro rata basis in accordance with customary procedures to be agreed
between Holdings or the Borrower and the Auction Agent or (y) open market purchases; provided that:
(i) any
Loans or Commitments acquired by Holdings, the Borrower, or any other Subsidiary shall be retired and cancelled promptly upon the acquisition
thereof;
(ii) by
its acquisition of Loans or Commitments, an Affiliated Lender shall be deemed to have acknowledged and agreed that:
(A) it
shall not have any right to (i) attend or participate in (including, in each case, by
telephone) any meeting (including “Lender only” meetings) or discussions (or
portion thereof) among the Administrative Agent or any Lender to which representatives of
the Borrower are not then present, (ii)receive any information or material prepared by the
Administrative Agent or any Lender or any communication by or among the Administrative Agent
and one or more Lenders or any other material which is “Lender only”, except
to the extent such information or materials have been made available to the Borrower or its
representatives (and in any case, other than the right to receive notices of prepayments
and other administrative notices in respect of its Loans required to be delivered to Lenders
pursuant to Section 2) or receive any advice of counsel to the Administrative
Agent or (iii) make any challenge to the Administrative Agent’s or any other Lender’s
attorney-client privilege on the basis of its status as a Lender; and
(B) except
with respect to any amendment, modification, waiver, consent or other action (I) in
Section 13.1 requiring the consent of all Lenders, all Lenders directly and adversely
affected or specifically such Lender, (II) that alters an Affiliated Lender’s
pro rata share of any payments given to all Lenders, or (III) 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, in the
case of a plan of reorganization that does not affect the Affiliated Lender in a manner that
is materially adverse to such Affiliated Lender relative to other Lenders, shall be deemed
to have voted its interest in the Term Loans in the same proportion as the other Lenders)
(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); and
(iii) the
aggregate principal amount of Term Loans held at any one time by Affiliated Lenders may not exceed 30% of the aggregate principal amount
of all Term Loans outstanding at the time of such purchase; and
(iv) any
such Loans acquired by an Affiliated Lender may, with the consent of the Borrower, be contributed to the Borrower and exchanged for debt
or equity securities that are otherwise permitted to be issued at such time (and such Loans or Commitments shall be retired and cancelled
promptly).
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For avoidance of doubt, the foregoing limitations
shall not be applicable to Affiliated Institutional Lenders. None of the Borrower, any Subsidiary or any Affiliated Lender shall be required
to make any representation that it is not in possession of information which is not publicly available and/or material with respect to
the Borrower and its Subsidiaries or their respective securities for purposes of U.S. federal and state securities laws.
13.7 Replacements
of Lenders Under Certain Circumstances.
(a) The
Borrower shall be permitted (x) to replace any Lender or (y) to terminate the Commitment of such Lender, Letter of Credit Issuer
or Swingline Lender, as the case may be, and (1) in the case of a Lender (other than the Letter of Credit Issuer and Swingline Lender),
repay all Obligations of the Borrower due and owing to such Lender relating to the Loans and participations held by such Lender as of
such termination date, (2) in the case of the Letter of Credit Issuer, repay all Obligations of the Borrower owing to such Letter
of Credit Issuer relating to the Loans and participations held by the Letter of Credit Issuer as of such termination date and cancel
or backstop on terms satisfactory to such Letter of Credit issuer any Letters of Credit issued by it, and (3) in the case of a Swingline
Lender, repay all Obligations of the Borrower owing to such Swingline Lender relating to the Loans and participations held by the Swingline
Lender as of such termination date and cancel or backstop on terms satisfactory to such Swingline Lender any Swingline Loans issued by
it that (a) requests reimbursement for amounts owing pursuant to Sections 2.10 or 5.4 or (b) is affected
in the manner described in Section 2.10(a)(iii) and as a result thereof any of the actions described in such Section is
required to be taken, or (c) becomes a Defaulting Lender, with a replacement bank or other financial institution; provided
that (i) such replacement does not conflict with any Requirement of Law, (ii) no Event of Default under Sections 11.1
or 11.5 shall have occurred and be continuing at the time of such replacement, (iii) the Borrower shall repay (or the replacement
bank or institution shall purchase, at par) all Loans and other amounts pursuant to Sections 2.10, 2.11, 3.5
or 5.4, as the case may be, owing to such replaced Lender prior to the date of replacement, (iv) the replacement bank or
institution, if not already a Lender, an Affiliate of a Lender, an Affiliated Lender or Approved Fund, and the terms and conditions of
such replacement, shall be reasonably satisfactory to the Administrative Agent, (v) the replacement bank or institution, if not
already a Lender shall be subject to the provisions of Section 13.6(b), (vi) the replaced Lender shall be obligated
to make such replacement in accordance with the provisions of Section 13.6 (provided that unless otherwise agreed
the Borrower shall be obligated to pay the registration and processing fee referred to therein), and (vii) any such replacement
shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the
replaced Lender.
(b) If
any Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, discharge
or termination that pursuant to the terms of Section 13.1 requires the consent of either (i) all of the Lenders directly
and adversely affected or (ii) all of the Lenders, and, in each case, with respect to which the Required Lenders (or at least 50.1%
of the directly and adversely affected Lenders) shall have granted their consent, then, the Borrower shall have the right (unless such
Non-Consenting Lender grants such consent) to (x) replace such Non-Consenting Lender by requiring such Non-Consenting Lender to
assign its Loans, and its Commitments hereunder to one or more assignees reasonably acceptable to the Administrative Agent (to the extent
such consent would be required under Section 13.6) or terminate the Commitment of such Lender or Letter of Credit Issuer,
as the case may be, and (1) in the case of a Lender (other than the Letter of Credit Issuer), repay all Obligations of the Borrower
due and owing to such Lender relating to the Loans and participations held by such Lender as of such termination date, (2) in the
case of the Letter of Credit Issuer, repay all Obligations of the Borrower owing to such Letter of Credit Issuer relating to the Loans
and participations held by the Letter of Credit Issuer as of such termination date and cancel or backstop on terms satisfactory to such
Letter of Credit Issuer any Letters of Credit issued by it and (3) in the case of a Swingline Lender, repay all Obligations of the
Borrower owing to such Swingline Lender relating to the Loans and participations held by the Swingline Lender as of such termination
date and cancel or backstop on terms satisfactory to such Swingline Lender any Swingline Loans issued by it; provided that (a) all
Obligations hereunder of the Borrower owing to such Non-Consenting Lender being replaced shall be paid in full to such Non-Consenting
Lender concurrently with such assignment including any amounts that such Lender may be owed pursuant to Section 2.11, and
(b) the replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount
thereof plus accrued and unpaid interest thereon, and (c) the Borrower shall pay to such Non-Consenting Lender the amount, if any,
owing to such Lender pursuant to Section 5.1(b). In connection with any such assignment, the Borrower, the Administrative
Agent, such Non-Consenting Lender and the replacement Lender shall otherwise comply with Section 13.6.
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13.8 Adjustments;
Set-off.
(a) Except
as contemplated in Section 13.6 or elsewhere herein (or in a First Lien Intercreditor Agreement and/or a Second Lien Intercreditor
Agreement), if any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part of its Loans,
or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events
or proceedings of the nature referred to in Section 11.5, or otherwise), in a greater proportion than any such payment to
or collateral received by any other Lender, if any, in respect of such other Lender’s Loans, or interest thereon, such Benefited
Lender shall purchase for cash from the other Lenders a participating interest in such portion of each such other Lender’s Loan,
or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause
such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) After
the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right, without prior notice to the Credit Parties but with the prior consent of the Administrative Agent,
any such notice being expressly waived by the Credit Parties to the extent permitted by applicable law, upon any amount becoming due
and payable by the Credit Parties hereunder (whether at the stated maturity, by acceleration or otherwise) to set-off and appropriate
and apply against such amount any and all deposits (general or special, time or demand, provisional or final) (other than payroll, trust,
tax, fiduciary, and petty cash 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 owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Credit Parties. Each Lender agrees promptly to notify the Credit Parties and the Administrative
Agent after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect
the validity of such set-off and application. For the avoidance of doubt, the provisions of this paragraph shall not be construed to
apply to (x) the application of funds arising from the existence of a Defaulting Lender, (y) the application of Cash Collateral
provided for in Section 3.8, or (z) any payment obtained by a Lender as consideration for the assignment of or sale
of a participation in any of its Loans or participations in L/C Obligations to any assignee or Participant, other than to any Affiliated
Lender (as to which the provisions of this paragraph shall apply).
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13.9 Counterparts.
This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile
or other electronic transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent. Delivery
of an executed counterpart of a signature page of (x) this Agreement, (y) any other Credit Document and/or (z) any
document, amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered pursuant to
Section 13.2), certificate, request, statement, disclosure or authorization related to this Agreement, any other Credit Document
and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature
transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall
be effective as delivery of a manually executed counterpart of this Agreement, such other Credit Document or such Ancillary Document,
as applicable. The words “execution,” “signed,” “signature,” “delivery,” and words of
like import in or relating to this Agreement, any other Credit Document and/or any Ancillary Document shall be deemed to include Electronic
Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf. or any other
electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity
or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the
case may be; provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or
format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting
the foregoing, (i) to the extent the Administrative Agent has agreed to accept any Electronic Signature, the Administrative Agent
and each of the Lenders shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of the Borrower or any
other Credit Party without further verification thereof and without any obligation to review the appearance or form of any such Electronic
Signature and (ii) upon the request of the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed
by a manually executed counterpart.
13.10 Severability.
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
13.11 Integration.
This Agreement and the other Credit Documents represent the agreement of Holdings, the Borrower, the Collateral Agent, the Administrative
Agent and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties
by Holdings, the Borrower, the Administrative Agent, the Collateral Agent nor any Lender relative to subject matter hereof not expressly
set forth or referred to herein or in the other Credit Documents.
13.12 GOVERNING
LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
13.13 Submission
to Jurisdiction; Waivers. Each party hereto irrevocably and unconditionally:
(a) submits
for itself and its property in any legal action or proceeding relating to this Agreement and the other Credit Documents to which it is
a party to the exclusive general jurisdiction of the courts of the State of New York or the courts of the United States for the Southern
District of New York, in each case sitting in New York City in the Borough of Manhattan, and appellate courts from any thereof;
(b) consents
that any such action or proceeding shall be brought in such courts and waives (to the extent permitted by applicable law) any objection
that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was
brought in an inconvenient court and agrees not to plead or claim the same or to commence or support any such action or proceeding in
any other courts;
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(c) agrees
that service of process in any such action or proceeding shall be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such Person at its address set forth on Schedule 13.2 at such
other address of which the Administrative Agent shall have been notified pursuant to Section 13.2;
(d) agrees
that nothing herein shall affect the right of the Administrative Agent, any Lender or another Secured Party to effect service of process
in any other manner permitted by law or to commence legal proceedings or otherwise proceed against Holdings or the Borrower or any other
Credit Party in any other jurisdiction; and
(e) waives,
to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to
in this Section 13.13 any special, exemplary, punitive or consequential damages; provided that nothing in this clause
(e) shall limit the Credit Parties’ indemnification obligations set forth in Section 13.5.
13.14 Acknowledgments.
Each of Holdings and the Borrower hereby acknowledges that:
(a) it
has been advised by counsel in the negotiation, execution, and delivery of this Agreement and the other Credit Documents;
(i) the credit facilities
provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment,
waiver or other modification hereof or of any other Credit Document) are an arm’s-length commercial transaction between the Borrower
and the other Credit Parties, on the one hand, and the Administrative Agent, the Lenders and the other Agents on the other hand, and
the Borrower and the other Credit Parties are capable of evaluating and understanding and understand and accept the terms, risks and
conditions of the transactions contemplated hereby and by the other Credit Documents (including any amendment, waiver or other modification
hereof or thereof);
(ii) in connection with
the process leading to such transaction, each of the Administrative Agent and the other Agents, is and has been acting solely as a principal
and is not the financial advisor, agent or fiduciary for the Borrower, any other Credit Parties or any of their respective Affiliates,
equity holders, creditors or employees, or any other Person;
(iii) neither the Administrative
Agent nor any other Agent has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower or any
other Credit Party with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect
to any amendment, waiver or other modification hereof or of any other Credit Document (irrespective of whether the Administrative Agent
or other Agent has advised or is currently advising the Borrower, the other Credit Parties or their respective Affiliates on other matters)
and neither the Administrative Agent or other Agent has any obligation to the Borrower, the other Credit Parties or their respective
Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other
Credit Documents;
(iv) the Administrative
Agent, each other Agent and each Affiliate of the foregoing may be engaged in a broad range of transactions that involve interests that
differ from those of the Borrower and their Affiliates, and neither the Administrative Agent nor any other Agent has any obligation to
disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and
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(v) neither the Administrative
Agent nor any other Agent has provided and none will provide any legal, accounting, regulatory or tax advice with respect to any of the
transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Credit Document) and the
Borrower have consulted their own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each of Holdings
and the Borrower hereby agrees that it will not claim that any Agent owes a fiduciary or similar duty to the Credit Parties in connection
with the Transactions contemplated hereby and waives and releases, to the fullest extent permitted by law, any claims that it may have
against the Administrative Agent or any other Agent with respect to any breach or alleged breach of agency or fiduciary duty; and
(b) no
joint venture is created hereby or by the other Credit Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower, on the one hand, and any Lender, on the other hand.
13.15 WAIVERS
OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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13.16 Confidentiality.
The Administrative Agent, each other Agent and each Lender (collectively, the “Restricted Persons” and, each a “Restricted
Person”) shall treat confidentially all non-public information provided to any Restricted Person by or on behalf of any Credit
Party hereunder in connection with such Restricted Person’s evaluation of whether to become a Lender hereunder or obtained by such
Restricted Person pursuant to the requirements of this Agreement (“Confidential Information”) and shall not publish,
disclose or otherwise divulge such Confidential Information; provided that nothing herein shall prevent any Restricted Person
from disclosing any such Confidential Information (a) pursuant to the order of any court or administrative agency or in any pending
legal, judicial or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal
process (in which case such Restricted Person agrees (except with respect to any routine or ordinary course audit or examination conducted
by bank accountants or any governmental or bank regulatory authority exercising examination or regulatory authority), to the extent practicable
and not prohibited by applicable law, rule or regulation, to inform the Borrower promptly thereof prior to disclosure), (b) upon
the request or demand of any regulatory authority having jurisdiction over such Restricted Person or any of its Affiliates (in which
case such Restricted Person agrees (except with respect to any routine or ordinary course audit or examination conducted by bank accountants
or any governmental or bank regulatory authority exercising examination or regulatory authority) to the extent practicable and not prohibited
by applicable law, rule or regulation, to inform the Borrower promptly thereof prior to disclosure), (c) to the extent that
such Confidential Information becomes publicly available other than by reason of improper disclosure by such Restricted Person or any
of its affiliates or any related parties thereto in violation of any confidentiality obligations owing under this Section 13.16,
(d) to the extent that such Confidential Information is received by such Restricted Person from a third party that is not, to such
Restricted Person’s knowledge, subject to confidentiality obligations owing to any Credit Party or any of their respective subsidiaries
or affiliates, (e) to the extent that such Confidential Information was already in the possession of the Restricted Persons prior
to any duty or other undertaking of confidentiality or is independently developed by the Restricted Persons without the use of such Confidential
Information, (f) to such Restricted Person’s affiliates and to its and their respective officers, directors, partners, employees,
legal counsel, independent auditors, and other experts or agents who need to know such Confidential Information in connection with providing
the Loans or action as an Agent hereunder and who are informed of the confidential nature of such Confidential Information and who are
subject to customary confidentiality obligations of professional practice or who agree to be bound by the terms of this Section 13.16
(or confidentiality provisions at least as restrictive as those set forth in this Section 13.16) (with each such Restricted
Person, to the extent within its control, responsible for such person’s compliance with this paragraph), (g) to potential
or prospective Lenders, hedge providers (or other derivative transaction counterparties) (any such person, a “Derivative Counterparty”),
participants or assignees, in each case who agree (pursuant to customary syndication practice) to be bound by the terms of this Section 13.16
(or confidentiality provisions at least as restrictive as those set forth in this Section 13.16); provided that (i) the
disclosure of any such Confidential Information to any Lenders, Derivative Counterparty or prospective Lenders, Derivative Counterparty
or participants or prospective participants referred to above shall be made subject to the acknowledgment and acceptance by such Lender,
Derivative Counterparty or prospective Lender or participant or prospective participant that such Confidential Information is being disseminated
on a confidential basis (on substantially the terms set forth in this Section 13.16 or confidentiality provisions at least
as restrictive as those set forth in this Section 13.16) in accordance with the standard syndication processes of such Restricted
Person or customary market standards for dissemination of such type of information, which shall in any event require “click through”
or other affirmative actions on the part of the Recipient to access such Confidential Information and (ii) no such disclosure shall
be made by such Restricted Person to any person that is at such time a Disqualified Lender (provided, however, that disclosures
may be made to Disqualified Lenders unless a list of Disqualified Lenders has been made available to all Lenders who so request), (h) for
purposes of establishing a “due diligence” defense, or (i) to rating agencies in connection with obtaining ratings for
the Borrower and the Credit Facilities to the extent such rating agencies are subject to customary confidentiality obligations of professional
practice or agree to be bound by the terms of this Section 13.16 (or confidentiality provisions at least as restrictive as
those set forth in this Section 13.16). Notwithstanding the foregoing, (i) Confidential Information shall not include,
with respect to any Person, information available to it or its Affiliates on a non-confidential basis from a source other than Holdings,
its Subsidiaries or their respective Affiliates, (ii) the Administrative Agent shall not be responsible for compliance with this
Section 13.16 by any other Restricted Person (other than its officers, directors or employees), (iii) in no event shall
any Lender, the Administrative Agent or any other Agent be obligated or required to return any materials furnished by Holdings or any
of its Subsidiaries, and (iv) each Agent and each Lender may disclose the existence of this Agreement and the information about
this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Agents and
the Lenders in connection with the administration, settlement and management of this Agreement and the other Credit Documents.
13.17 Direct
Website Communications. Each of Holdings and the Borrower may, at its option, provide to the Administrative Agent any information,
documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Credit Documents, including,
without limitation, all notices, requests, financial statements, financial, and other reports, certificates, and other information materials,
but excluding any such communication that (A) relates to a request for a new, or a conversion of an existing, borrowing or other
extension of credit (including any election of an interest rate or interest period relating thereto), (B) relates to the payment
of any principal or other amount due under this Agreement prior to the scheduled date therefor, (C) provides notice of any default
or event of default under this Agreement or (D) is required to be delivered to satisfy any condition precedent to the effectiveness
of this Agreement and/or any borrowing or other extension of credit thereunder (all such non-excluded communications being referred to
herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium in a format
reasonably acceptable to the Administrative Agent to the Administrative Agent at an email address provided by the Administrative Agent
from time to time; provided that (i) upon written request by the Administrative Agent, Holdings or the Borrower shall deliver
paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering
paper copies is given by the Administrative Agent and (ii) Holdings or the Borrower shall notify (which may be by facsimile or electronic
mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting
delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents. Nothing in this
Section 13.17 shall prejudice the right of Holdings, the Borrower, the Administrative Agent, any other Agent or any Lender
to give any notice or other communication pursuant to any Credit Document in any other manner specified in such Credit Document.
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The Administrative Agent
agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective
delivery of the Communications to the Administrative Agent for purposes of the Credit Documents. Each Lender agrees that notice to it
(as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery
of the Communications to such Lender for purposes of the Credit Documents. Each Lender agrees (A) to notify the Administrative Agent
in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice
may be sent by electronic transmission and (B) that the foregoing notice may be sent to such e-mail address.
(a) Each
of Holdings and the Borrower further agrees that any Agent may make the Communications available to the Lenders by posting the Communications
on Intralinks or a substantially similar electronic transmission system (the “Platform”), so long as the access to
such Platform (i) is limited to the Agents, the Lenders and Transferees or prospective Transferees and (ii) remains subject
to the confidentiality requirements set forth in Section 13.16.
(b) THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES DO NOT WARRANT THE ACCURACY OR COMPLETENESS
OF ANY MATERIALS OR INFORMATION PROVIDED BY THE CREDIT PARTIES (THE “BORROWER MATERIALS”) OR THE ADEQUACY OF THE PLATFORM,
AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS
OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.
In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties” and each
an “Agent Party”) 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 the liability of any Agent Party resulted
from such Agent Party’s (or any of its Related Parties’ (other than any trustee or advisor)) gross negligence, bad faith
or willful misconduct or material breach of the Credit Documents as determined in the final non-appealable judgment of a court of competent
jurisdiction.
(c) Each
of Holdings and the Borrower and each Lender acknowledge that certain of the Lenders may be “public-side” Lenders (Lenders
that do not wish to receive material non-public information with respect to Holdings, the Borrower, the Subsidiaries or their securities)
and, if documents or notices required to be delivered pursuant to the Credit Documents or otherwise are being distributed through the
Platform, any document or notice that Holdings or the Borrower has indicated contains only publicly available information with respect
to Holdings or the Borrower may be posted on that portion of the Platform designated for such public-side Lenders. If Holdings or the
Borrower has not indicated whether a document or notice delivered contains only publicly available information, the Administrative Agent
shall post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive material nonpublic
information with respect to Holdings, the Borrower, the Subsidiaries and their securities. Notwithstanding the foregoing, each of Holdings
and the Borrower shall use commercially reasonable efforts to indicate whether any document or notice contains only publicly available
information; provided however that, the following documents shall be deemed to be marked “PUBLIC,” unless the Borrower notifies
the Administrative Agent promptly that any such document contains material nonpublic information: (1) the Credit Documents, (2) any
notification of changes in the terms of the Credit Facility and (3) all financial statements and certificates delivered pursuant
to Sections 9.1(a),(b) and (d).
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13.18 USA
PATRIOT Act. Each Lender hereby notifies each Credit Party that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify, and
record information that identifies each Credit Party, which information includes the name and address of each Credit Party and other
information that will allow such Lender to identify each Credit Party in accordance with the Patriot Act.
13.19 [Reserved].
13.20 Payments
Set Aside. To the extent that any payment by or on behalf of Holdings or 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 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 applicable
Overnight Bank Funding Rate from time to time in effect.
13.21 No
Fiduciary Duty. Each Agent, each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”),
may have economic interests that conflict with those of the Credit Parties, their equity holders and/or their affiliates. Each Credit
Party agrees that nothing in the Credit Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship
or fiduciary or other implied duty between any Lender, on the one hand, and such Credit Party, its equity holders or its affiliates,
on the other. The Credit Parties acknowledge and agree that (i) the transactions contemplated by the Credit Documents (including
the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on
the one hand, and the Credit Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no
Lender has assumed an advisory or fiduciary responsibility in favor of any Credit Party, its equity holders or its affiliates with respect
to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective
of whether any Lender has advised, is currently advising or will advise any Credit Party, its equity holders or its Affiliates on other
matters) or any other obligation to any Credit Party except the obligations expressly set forth in the Credit Documents and (y) each
Lender is acting solely as principal and not as the agent or fiduciary of any Credit Party, its management, equity holders or creditors.
Each Credit Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate
and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto.
Each Credit Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary
or similar duty to such Credit Party, in connection with such transaction or the process leading thereto.
13.22 Acknowledgement
and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Credit Document or in any other
agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial
Institution arising under any Credit Document may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority
and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by an 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
196
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent 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 Credit
Document; or
(iii) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any applicable Resolution
Authority.
13.23 Certain
ERISA Matters. (a) Each Lender (x) represents and warrants, as of the date such Person
became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person
ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Joint Lead Arrangers and Bookrunners and their
respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at
least one of the following is and will be true:
(i) such
Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit
Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters
of Credit, the Commitments or this Agreement,
(ii) the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent
qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts),
PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption
for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined
by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and
performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii) (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE
84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate
in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation
in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements
of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements
of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
197
(iv) 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 either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or
(2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately
preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto,
to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party
hereto, for the benefit of, the Administrative Agent and the Joint Lead Arrangers and Bookrunners and their respective Affiliates and
not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that none of the Administrative Agent
or the Joint Lead Arrangers or Bookrunners or any of their respective Affiliates are 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 Credit Document or any documents related hereto or thereto).
For purposes of this
section, the following definitions apply to each of the capitalized terms below:
“Benefit Plan” shall mean
any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan”
as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42)
or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan”
or “plan”.
“PTE” shall mean a prohibited
transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
13.24 Acknowledgement
Regarding Any Supported QFCs. To the extent that the Credit Documents provide support, through a guarantee or otherwise, for Hedge
Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit Support” and each such QFC
a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal
Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer
Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect
of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Credit 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):
198
In the event a Covered Entity
that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution
Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such
Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such
Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the
Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the
United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject
to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Credit 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 Credit 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]
199
ANNEX B
EXHIBIT F TO THE AMENDED CREDIT AGREEMENT
[SEE ATTACHED]
FORM OF ASSIGNMENT AND ACCEPTANCE
This Assignment and Acceptance
(this “Assignment and Acceptance”) is dated as of the Effective Date set forth below and is entered into by and between
[the][each]1 Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2
Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees]3 hereunder are several and not joint.]4 Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto
(the “Standard Terms and Conditions”) are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Acceptance as if set forth herein in full.
For an agreed consideration,
[the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby
irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all
of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities
as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the
amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors]
in respect of the Commitments and Loans identified below [including, without limitation, Letters of Credit and Swingline Loans, as applicable)]5
and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of
[the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person,
whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited
to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor
to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned
Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this
Assignment and Acceptance, without representation or warranty by [the][any] Assignor. The benefit of each Security Document shall be maintained
in favor of each Assignee.
1 For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.
2 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
3
Select as appropriate.
4
Include bracketed language if there are either multiple Assignors or multiple Assignees.
5
Include only if assignment is of Revolving Credit Commitments.
1. Assignor[s]:
______________________________
______________________________
Assignor[s] is a Defaulting Lender
Yes ¨ No ¨
2. Assignee[s]:
______________________________
______________________________
[for each Assignee, indicate [Lender][[Affiliate]
of [identify Lender][Approved Fund]]
3. Assignee Status:
The Assignee[s] is an Affiliated Lender
Yes ¨ No ¨
The Assignee[s] is an Affiliated Institutional Lender
Yes ¨ No ¨
4. Borrower:
Brightview Landscapes, LLC
5. Administrative Agent: JPMorgan Chase Bank, N.A., as the Administrative Agent under the Credit Agreement
6. Credit Agreement: Credit Agreement, dated as of December 18, 2013 (as amended, restated, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among BrightView Holdings, Inc. (“Holdings”),
BrightView Landscapes, LLC (the “Borrower”), the lending institutions from time to time parties thereto, JPMorgan Chase
Bank, N.A., as a Letter of Credit Issuer and JPMorgan Chase Bank, N.A., as the Swingline Lender, the Administrative Agent and the Collateral
Agent
7. Assigned Interest:
Assignor[s]6
Assignee[s]7
Commitment/Loans
Assigned8
Aggregate
Amount of
Commitment/
Loans
for all
Lenders9
Amount of
Commitment/
Loans
Assigned
Percentage
Assigned of
Commitment/
Loans10
$[ ]
$[ ]
$[ ]
%
$[ ]
$[ ]
%
$[ ]
$[ ]
%
[8. Trade Date: __________________]11
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Acceptance
are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
Title:
6
List each Assignor, as appropriate.
7
List each Assignee, as appropriate.
8
Fill in Class (and Series or Extension Series, as applicable) of Commitment/Loans being assigned.
9 Amounts in this column and in the column immediately
to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the
Effective Date. “All Lenders” refers to all Lenders under the applicable Class (and Series or Extension Series, as applicable).
10
Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders under the applicable Class (and
Series or Extension Series, as applicable).
11
To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
[Consented to and]12 Accepted:
JPMORGAN CHASE BANK, N.A.,
as the Administrative Agent [and the Swingline Lender]13
By:
Name:
Title:
[JPMORGAN CHASE BANK, N.A.
as Letter of Credit Issuer
By:
Name:
Title: 14]
[_____________________],
as Letter of Credit Issuer
By:
Name:
Title: ]15
[Consented to:
BRIGHTVIEW LANDSCAPES, LLC,
as Borrower
By:
Name:
Title:]16
12
Include if Administrative Agent’s consent is required.
13
Reference to the Swingline Lender required for an assignment of Revolving Credit Commitments.
14
Signature block required for an assignment of Revolving Credit Commitments.
15
Signature block required for an assignment of Revolving Credit Commitments.
16
Include if Borrower’s consent is required.
ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ACCEPTANCE
1. Representations
and Warranties.
1.1. Assignor.
[The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned
Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate
the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Credit Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Documents or any collateral thereunder, (iii) the financial condition of the Borrower,
any of their Subsidiaries or Affiliates or any other Person obligated in respect of any Credit Document or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Credit Document.
1.2. Assignee.
[The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary,
to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 13.6(b)(i) [and][,] (b)(ii) [and
(h)]17 and (v) of the Credit Agreement (subject to such consents, if any, as may be required under Section 13.6(b)(i) of
the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a
Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it
is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or
the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of
such type, (v) it has (x) received a copy of the Credit Agreement and has received or has been accorded the opportunity to receive
copies of the most recent financial statements delivered pursuant to Section 9.1 of the Credit Agreement, as applicable, and such
other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and
Acceptance and to purchase [the][such] Assigned Interest and (y) attached to this Assignment and Acceptance is any documentation
required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the] [such] Assignee, (vi) it
has, independently and without reliance upon the Administrative Agent, the Collateral Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Acceptance and
to purchase [the][such] Assigned Interest, (vii) it [is][is not] an Affiliated Lender [and][,] (viii) it [is][is not] an Affiliated
Institutional Lender, (ix) it [is][is not] a Defaulting Lender, (x) it is not a Disqualified Lender [and (xi) as of the
Effective Date, after giving effect to the assignment of the Assigned Interest pursuant to this Assignment and Acceptance, the aggregate
principal amount of Term Loans held by Affiliated Lenders (other than Affiliated Institutional Lenders) shall not exceed 30% of the aggregate
principal amount of all Term Loans outstanding at the time of such assignment]18; and (b) agrees that (i) it will,
independently and without reliance upon the Administrative Agent, the Collateral Agent, [the][any] Assignor or any other Lender, and based
on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under the Credit Documents, and (ii) it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Documents are required to be performed by it as a Lender.
17
Include bracketed language if Assignee is an Affiliated Lender.
18
Include bracketed language if Assignee is an Affiliated Lender.
2. Payments.
From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including
payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding
the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding
the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after
the Effective Date to [the] [the relevant] Assignee.
3. General
Provisions. This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute
one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy shall be effective
as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be governed by,
and construed in accordance with, the law of the State of New York.
ANNEX C
Initial Term Loan Lenders
Initial Term Loan Lender
Initial Term Loan Commitment
JPMorgan Chase Bank, N.A.
$ 738,000,000.00
Total:
$ 738,000,000.00
EX-10.2 — EXHIBIT 10.2
EX-10.2
Filename: tm2618044d1_ex10-2.htm · Sequence: 3
Exhibit 10.2
SIXTH AMENDMENT TO THE
RECEIVABLES FINANCING AGREEMENT
This SIXTH AMENDMENT TO THE
RECEIVABLES FINANCING AGREEMENT (this “Amendment”), dated as of June 12, 2026, is entered into by and among the
following parties:
(i) BrightView Funding LLC,
as Borrower (the “Borrower”);
(ii) BRIGHTVIEW LANDSCAPES, LLC, as initial Servicer (the “Servicer”);
(iii) MUFG BANK, LTD. (“MUFG”), as Lender and LC Participant; and
(iv) PNC BANK, NATIONAL ASSOCIATION (“PNC”), as Lender, LC Bank, LC Participant and Administrative Agent (in such capacity,
the “Administrative Agent”).
Capitalized terms used but
not otherwise defined herein (including such terms used above) have the respective meanings assigned thereto in the Receivables Financing
Agreement described below.
BACKGROUND
A. The
parties hereto and PNC Capital Markets LLC (the “Structuring Agent”) have entered into a Receivables Financing
Agreement, dated as of April 28, 2017 (as amended, restated, supplemented or otherwise modified through the date hereof, the “Receivables
Financing Agreement”).
B. Concurrently
herewith, the Borrower, PNC, MUFG and the Structuring Agent are entering into a Fifth Amended and Restated Fee Letter, dated as of the
date hereof (the “Fee Letter”).
C. In
connection with this Amendment, PNC, in its capacity as a Lender desires to assign to MUFG $40,000,000 of its Commitment (the “Assigned
PNC Commitment”), and MUFG hereby assumes such Assigned PNC Commitment.
D. The
parties hereto desire to amend the Receivables Financing Agreement as set forth herein.
NOW, THEREFORE, with the intention
of being legally bound hereby, and in consideration of the mutual undertakings expressed herein, each party to this Amendment hereby agrees
as follows:
SECTION 1. Amendments
to the Receivables Financing Agreement. The Receivables Financing Agreement is hereby amended to incorporate the changes shown on
the marked pages of the Receivables Financing Agreement attached hereto as Exhibit A.
SECTION 2. Assignments;
Rebalancing of Principal.
(a) Rebalancing.
(i) As
of the date hereof and prior to giving effect to this Amendment, the Capital of PNC is $113,501,538.46 (the “Existing PNC Capital”).
In connection with the Assigned PNC Commitment, the parties hereto desire to provide for (i) the partial repayment of the Existing
PNC Capital and (ii) a non-ratable Loan by MUFG, in each case on the terms described below.
(ii) On
the date hereof, the Borrower shall, to the extent of funds applied on its behalf, as set forth below, repay to PNC a portion of the Existing
PNC Capital in an amount equal to $18,916,923.08 (the “PNC Repayment Amount”). Additionally, the Borrower hereby requests
that MUFG make a non-ratable Loan on the date hereof in an amount equal to $18,916,923.08 (such Loan, the “MUFG Loan”).
For administrative convenience, the Borrower hereby requests that MUFG transfer the proceeds of the MUFG Loan to PNC by wire transfer
of immediately available funds to the account specified below on or prior to 3:00 p.m. (New York time) on the date hereof. The amounts
transferred at the Borrower’s direction pursuant to the immediately preceding sentence shall be applied as a repayment by the Borrower
of the PNC Repayment Amount. Each of the parties hereto agrees that each of the Borrower and the Servicer does not assume and shall have
no responsibility for, and makes no representation as to, the payment by MUFG of the MUFG Loan for application to the PNC Repayment Amount
in such manner. Each of the parties hereto agrees that the provision of Section 2.02(a) of the Receivables Financing Agreement
requiring that a Loan Request be delivered with respect each Loan is to be made is hereby waived solely with respect to the MUFG Loan.
Bank account information for purposes of funding the MUFG Loan is as follows:
Bank:
PNC Bank N.A.
ABA#
043 0000 96
Account Name:
Wire Suspense-Agency Services
Account #:
13076 0017 005
Reference:
Brightview Funding LLC
Attention:
Asset Backed Finance
(iii) Notwithstanding
the foregoing, and for the avoidance of doubt, MUFG shall not be required to make or fund the MUFG Loan unless all the conditions precedent
set forth in Section 6.02 to the Receivables Financing Agreement have been satisfied or waived. The Borrower hereby certifies
that all conditions precedent in Section 6.02 to the Receivables Financing Agreement have been satisfied as of the date hereof.
(b) Interest
and Fees. The Borrower shall pay in immediately available funds on the Monthly Settlement Date first occurring after the date hereof
all unpaid Interest and Fees that accrued prior to the date hereof on or with respect to the PNC Repayment Amount in accordance with the
terms of the Receivables Financing Agreement and the other Transaction Documents. For the avoidance of doubt, the payment of any unpaid
Interest and Fees that accrued prior to the date hereof on or with respect to the PNC Repayment Amount shall be paid in addition to all
other Interest and fees then due and payable.
2
(c) Capital.
After giving effect to the foregoing partial repayment of the Existing PNC Capital and the funding of the MUFG Loan, (i) the Aggregate
Capital will be $153,700,000, (ii) the Capital of PNC will be $94,584,615.38 and (iii) the Capital of MUFG will be $59,115,384.62.
(d) Commitment. Effective
as of the date hereof, in connection with this Agreement and this Amendment, PNC hereby assigns to MUFG the Assigned PNC Commitment and
MUFG hereby assumes such Assigned PNC Commitment. After giving effect to the foregoing assignment, (i) PNC’s Commitment will
be $200,000,000 and (ii) MUFG’s Commitment will be $125,000,000.
(e) Limitation
on Liability. Notwithstanding anything to the contrary set forth in this Amendment, MUFG does not accept or assume any liability or
responsibility for any breach, failure or other act or omission on the part of PNC, or any indemnification or other cost, fee or expense
related thereto, in each case which occurred or directly or indirectly arose out of an event which occurred prior to the date hereof.
(f) Acknowledgement
and Agreement. Each of the parties hereto (i) hereby acknowledges and agrees to the assignment and Loan set forth in clause (a) above,
(ii) expressly waives any notice or other applicable requirement set forth in any Transaction Document as a prerequisite or condition
precedent to such assignment and Loan (other than as set forth herein), (iii) agree that this Section 2 is in form and
substance substantially similar to an Assignment and Acceptance Agreement and satisfies all applicable requirements set forth in Section 13.03
of the Receivables Financing Agreement for the assignment of a Commitment and (iv) expressly waives any notice, consent or other
applicable requirements set forth in any Transaction Document as a prerequisite or condition precedent to the assignment and Loan set
forth in this Section 2 (other than as set forth herein).
SECTION 3. Representations
and Warranties of the Borrower and Servicer. The Borrower and the Servicer hereby represent and warrant to each of the parties hereto
as of the date hereof as follows:
(a) Representations
and Warranties. The representations and warranties made by it in the Receivables Financing Agreement and each of the other Transaction
Documents to which it is a party are true and correct as of the date hereof.
(b) Enforceability.
The execution and delivery by it of this Amendment, and the performance of its obligations under this Amendment, the Receivables Financing
Agreement (as amended hereby) and the other Transaction Documents to which it is a party are within its organizational powers and have
been duly authorized by all necessary action on its part, and this Amendment, the Receivables Financing Agreement (as amended hereby)
and the other Transaction Documents to which it is a party are (assuming due authorization and execution by the other parties thereto)
its valid and legally binding obligations, enforceable in accordance with its terms.
3
(c) No
Event of Default. No Event of Default or Unmatured Event of Default has occurred and is continuing, or would occur as a result of
this Amendment or the transactions contemplated hereby.
(d) Credit
Agreement. The Credit Agreement has not been amended, restated, supplemented or otherwise modified since the effectiveness of that
certain Amendment No. 10 to Credit Agreement, dated as of May 4, 2026.
SECTION 4. Limited
Representations and Warranties. PNC hereby represents and warrants to MUFG and the Administrative Agent, as of the date hereof, that
PNC is the sole owner of the rights, interest and title in and to the interests being transferred by PNC hereunder free and clear of any
Adverse Claim created by or through PNC.
SECTION 5. Effect
of Amendment; Ratification. All provisions of the Receivables Financing Agreement and the other Transaction Documents, as expressly
amended and modified by this Amendment, shall remain in full force and effect. After this Amendment becomes effective, all references
in the Receivables Financing Agreement (or in any other Transaction Document) to “this Receivables Financing Agreement”, “this
Agreement”, “hereof”, “herein” or words of similar effect referring to the Receivables Financing Agreement
shall be deemed to be references to the Receivables Financing Agreement as amended by this Amendment. This Amendment shall not be deemed,
either expressly or impliedly, to waive, amend or supplement any provision of the Receivables Financing Agreement other than as set forth
herein. It is the intent of the parties hereto, and the parties hereto agree, that this Amendment shall not constitute a novation of the
Receivables Financing Agreement, any other Transaction Document or any of the rights, obligations or liabilities thereunder. The Receivables
Financing Agreement, as amended by this Amendment, is hereby ratified and confirmed in all respects.
SECTION 6. Effectiveness.
This Amendment shall become effective as of the date hereof, subject to the satisfaction of each of the following conditions precedent:
(a) receipt
by the Administrative Agent of counterparts of this Amendment (whether by facsimile or otherwise) executed by each of the parties hereto;
(b) receipt
by the Administrative Agent of counterparts of the Fee Letter (whether by facsimile or otherwise) executed by each of the parties
thereto;
(c) evidence
received by the Administrative Agent that (i) the “Upfront Fee” under and as defined in the Fee Letter and (ii) each
other fee or other amount owing by the Borrower on the date hereof under any Transaction Document or in connection with this Amendment
or the transactions contemplated hereby, in each case, have been paid in fully in accordance with the terms of the Fee Letter or such
other document to which such fee or amount is payable; and
(d) receipt
by the Administrative Agent of such other documents and instruments as the Administrative Agent may reasonably request prior to the date
hereof.
SECTION 7. Severability.
Any provisions of this Amendment which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
4
SECTION 8. Transaction
Document. This Amendment shall be a Transaction Document for purposes of the Receivables Financing Agreement.
SECTION 9. Counterparts.
This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all
of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart hereof by facsimile or other
electronic means shall be equally effective as delivery of an originally executed counterpart. The words “execution”, “executed”,
“signed”, “signature”, and words of like import in this Amendment shall be deemed to include electronic signatures
or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature 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. GOVERNING
LAW AND JURISDICTION.
(a) THIS
AMENDMENT, INCLUDING THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
(b) EACH
PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO (I) WITH RESPECT TO THE BORROWER AND THE SERVICER, THE EXCLUSIVE JURISDICTION, AND (II) WITH
RESPECT TO EACH OF THE OTHER PARTIES HERETO, THE NON-EXCLUSIVE JURISDICTION, IN EACH CASE, OF ANY NEW YORK STATE OR FEDERAL COURT
SITTING IN NEW YORK CITY, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT, AND EACH PARTY HERETO HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING (I) IF BROUGHT BY THE BORROWER, THE SERVICER OR ANY AFFILIATE
THEREOF, SHALL BE HEARD AND DETERMINED, AND (II) IF BROUGHT BY ANY OTHER PARTY TO THIS AMENDMENT, MAY BE HEARD AND DETERMINED, IN
EACH CASE, IN SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. NOTHING IN THIS SECTION SHALL
AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY OTHER CREDIT PARTY TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR THE SERVICER
OR ANY OF THEIR RESPECTIVE PROPERTY IN THE COURTS OF OTHER JURISDICTIONS. EACH OF THE BORROWER AND THE SERVICER HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING.
THE PARTIES HERETO AGREE 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.
5
SECTION 11. Section Headings.
The various headings of this Amendment are included for convenience only and shall not affect the meaning or interpretation of this Amendment,
the Receivables Financing Agreement or any provision hereof or thereof.
SECTION 12. Reaffirmation
of Performance Guaranty. After giving effect to this Amendment and each of the other transactions contemplated hereby, all of the
provisions of the Performance Guaranty shall remain in full force and effect and Performance Guarantor hereby ratifies and affirms the
Performance Guaranty and acknowledges that the Performance Guaranty has continued and shall continue in full force and effect in accordance
with its terms.
[Signature
pages follow]
6
IN WITNESS WHEREOF, the parties
hereto have executed this Amendment by their duly authorized officers as of the date first above written.
BrightView Funding LLC,
as Borrower
By:
/s/
Anthony Riegel
Name:
Anthony Riegel
Title:
Treasurer
BRIGHTVIEW LANDSCAPES, LLC,
as initial Servicer
By:
/s/
Anthony Riegel
Name:
Anthony Riegel
Title:
Treasurer
BrightView/PNC: Sixth Amendment to
Receivables Financing Agreement
S-1
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
/s/
Chris Blaney
Name:
Chris Blaney
Title:
Senior Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Lender
By:
/s/
Chris Blaney
Name:
Chris Blaney
Title:
Senior Vice President
PNC BANK, NATIONAL ASSOCIATION,
as LC Bank and LC Participant
By:
/s/
Chris Blaney
Name:
Chris Blaney
Title:
Senior Vice President
BrightView/PNC: Sixth Amendment to
Receivables
Financing Agreement
S-2
MUFG BANK, LTD.,
as Lender and LC Participant
By:
/s/ Eric Williams
Name:
Eric Williams
Title:
Managing Director
BrightView/PNC: Sixth Amendment to
Receivables Financing Agreement
S-3
ACKNOWLEDGED AND AGREED:
BRIGHTVIEW HOLDINGS, INC.,
as Performance Guarantor
By:
/s/
Jonathan Gottsegen
Name:
Jonathan Gottsegen
Title:
Secretary, Executive Vice President and General
Counsel
BrightView/PNC: Sixth Amendment to
Receivables
Financing Agreement
S-4
EXHIBIT A
Amendments to Receivables Financing Agreement
Exhibit A
EXHIBIT A to FifthSixth
Amendment, Dated as of June 2712,
20242026
RECEIVABLES FINANCING AGREEMENT
Dated as of April 28, 2017
by and among
BrightView
Funding LLC,
as Borrower,
THE PERSONS FROM TIME TO TIME PARTY HERETO,
as Lenders and LC Participants,
PNC BANK, NATIONAL ASSOCIATION,
as LC Bank and Swingline Lender,
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
BRIGHTVIEW LANDSCAPES, LLC,
as initial Servicer,
and
PNC CAPITAL MARKETS LLC, as Structuring Agent
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
1
SECTION 1.01. Certain Defined Terms
1
SECTION 1.02. Other Interpretative Matters
3637
SECTION 1.03. SOFR Notification
3638
SECTION 1.04. Conforming Changes Relating to SOFR, Daily 1M SOFR or Daily Simple SOFR
3738
ARTICLE II TERMS OF THE LOANS
3738
SECTION 2.01. Loan Facility
3738
SECTION 2.02. Making Loans; Repayment of Loans
3739
SECTION 2.03. Interest and Fees
3943
SECTION 2.04. Records of Loans and Participation Advances
4043
SECTION 2.05. Interest Rate Options
4044
SECTION 2.06. Defaulting Lenders
4145
SECTION 2.07. Tranche Periods
4245
ARTICLE III LETTER OF CREDIT FACILITY
4246
SECTION 3.01. Letters of Credit
4246
SECTION 3.02. Issuance of Letters of Credit; Participations
4346
SECTION 3.03. Requirements For Issuance of Letters of Credit
4448
SECTION 3.04. Disbursements, Reimbursement
4448
SECTION 3.05. Repayment of Participation Advances
4549
SECTION 3.06. Documentation; Documentary and Processing Charges
4549
SECTION 3.07. Determination to Honor Drawing Request
4649
SECTION 3.08. Nature of Participation and Reimbursement Obligations
4650
SECTION 3.09. Indemnity
4751
SECTION 3.10. Liability for Acts and Omissions
4852
SECTION 3.11. LC Collateral Account
4953
ARTICLE IV SETTLEMENT PROCEDURES AND PAYMENT PROVISIONS
4953
SECTION 4.01. Settlement Procedures
4953
SECTION 4.02. Payments and Computations, Etc.
5256
-i-
TABLE OF CONTENTS
(continued)
Page
ARTICLE V INCREASED COSTS; FUNDING LOSSES; TAXES; ILLEGALITY AND SECURITY INTEREST
5256
SECTION 5.01. Increased Costs
5256
SECTION 5.02. Funding Losses
5458
SECTION 5.03. Taxes
5458
SECTION 5.04. Rate Unascertainable; Increased Costs; Illegality; Benchmark Replacement Setting
5862
SECTION 5.05. Selection of Interest Rate Options
6165
SECTION 5.06. Security Interest
6165
ARTICLE VI CONDITIONS to Effectiveness and CREDIT EXTENSIONS
6266
SECTION 6.01. Conditions Precedent to Effectiveness and the Initial Credit Extension
6266
SECTION 6.02. Conditions Precedent to All Credit Extensions
6266
SECTION 6.03. Conditions Precedent to All Releases
6367
ARTICLE VII REPRESENTATIONS AND WARRANTIES
6468
SECTION 7.01. Representations and Warranties of the Borrower
6468
SECTION 7.02. Representations and Warranties of the Servicer
6973
ARTICLE VIII COVENANTS
7377
SECTION 8.01. Covenants of the Borrower
7377
SECTION 8.02. Covenants of the Servicer
8286
SECTION 8.03. Separate Existence of the Borrower
8891
ARTICLE IX ADMINISTRATION AND COLLECTION OF RECEIVABLES
9295
SECTION 9.01. Appointment of the Servicer
9295
SECTION 9.02. Duties of the Servicer
9396
SECTION 9.03. Collection Account Arrangements
9397
SECTION 9.04. Enforcement Rights
9497
SECTION 9.05. Responsibilities of the Borrower
9599
SECTION 9.06. Servicing Fee
9699
ARTICLE X EVENTS OF DEFAULT
96100
SECTION 10.01. Events of Default
96100
ARTICLE XI THE ADMINISTRATIVE AGENT
100103
SECTION 11.01. Authorization and Action
100103
SECTION 11.02. Administrative Agent’s Reliance, Etc.
100104
-ii-
TABLE OF CONTENTS
(continued)
Page
SECTION 11.03. Administrative Agent and Affiliates
101104
SECTION 11.04. Indemnification of Administrative Agent
101104
SECTION 11.05. Delegation of Duties
101104
SECTION 11.06. Action or Inaction by Administrative Agent
101105
SECTION 11.07. Notice of Events of Default; Action by Administrative Agent
101105
SECTION 11.08. Non-Reliance on Administrative Agent and Other Parties
102105
SECTION 11.09. Successor Administrative Agent
102106
SECTION 11.10. Structuring Agent
103106
SECTION 11.11. Erroneous Payments
103106
ARTICLE XII INDEMNIFICATION
105109
SECTION 12.01. Indemnities by the Borrower
105109
SECTION 12.02. Indemnification by the Servicer
108112
ARTICLE XIII MISCELLANEOUS
110113
SECTION 13.01. Amendments, Etc.
110113
SECTION 13.02. Notices, Etc.
111114
SECTION 13.03. Assignability; Addition of Lenders
111114
SECTION 13.04. Costs and Expenses
113117
SECTION 13.05. No Proceedings; Limitation on Payments
114117
SECTION 13.06. Confidentiality
114118
SECTION 13.07. GOVERNING LAW
115119
SECTION 13.08. Execution in Counterparts
116119
SECTION 13.09. Integration; Binding Effect; Survival of Termination
116120
SECTION 13.10. CONSENT TO JURISDICTION
116120
SECTION 13.11. WAIVER OF JURY TRIAL
117121
SECTION 13.12. Ratable Payments
117121
SECTION 13.13. Limitation of Liability
117121
SECTION 13.14. Intent of the Parties
118121
SECTION 13.15. USA Patriot Act
118122
SECTION 13.16. Right of Setoff
118122
SECTION 13.17. Severability
118122
SECTION 13.18. Mutual Negotiations
118122
SECTION 13.19. Captions and Cross References
119122
-iii-
TABLE OF CONTENTS
(continued)
Page
EXHIBITS
EXHIBIT A-1
–
Form of [Loan Request] [LC Request]
EXHIBIT A-2
–
Form of Swingline Purchase Request
EXHIBIT B
–
Form of Reduction Notice
EXHIBIT C
–
Form of Assignment and Acceptance Agreement
EXHIBIT D
–
Form of Letter of Credit Application
EXHIBIT E
–
Credit and Collection Policy
EXHIBIT F
–
Form of Monthly Report
EXHIBIT G
–
Form of Compliance Certificate
EXHIBIT H
–
Closing Memorandum
EXHIBIT I
–
Form of Interim Report
EXHIBIT J
–
U.S. Tax Compliance Certificate
SCHEDULES
SCHEDULE I
–
Commitments
SCHEDULE II
–
Lock-Boxes, Collection Accounts and Collection Account Banks
SCHEDULE III
–
Notice Addresses
-iv-
This RECEIVABLES FINANCING
AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) is entered
into as of April 28, 2017 by and among the following parties:
(i) BRIGHTVIEW FUNDING LLC, a Delaware limited liability company, as Borrower (together with its successors
and assigns, the “Borrower”);
(ii) the Persons from time to time party hereto as Lenders and LC Participants;
(iii) PNC BANK, NATIONAL ASSOCIATION, as LC Bank (in such capacity, together with its successors and assigns
in such capacity, the “LC Bank”);
(iv) PNC BANK, NATIONAL ASSOCIATION (“PNC”), as Administrative Agent and as the sole Swingline
Lender;
(v) BRIGHTVIEW LANDSCAPES, LLC, a Delaware limited liability company, in its individual capacity (“BrightView”)
and as initial Servicer (in such capacity, together with its successors and assigns in such capacity, the “Servicer”);
and
(vi) PNC CAPITAL MARKETS LLC, a Pennsylvania limited liability company, as Structuring Agent.
PRELIMINARY STATEMENTS
The Borrower has acquired,
and will acquire from time to time, Receivables from the Originator(s) pursuant to the Purchase and Sale Agreement. The Borrower
has requested (a) that the Lenders make Loans from time to time to the Borrower and (b) the LC Bank to issue Letters of Credit
for the account of the Borrower from time to time, in each case, on the terms, and subject to the conditions set forth herein, secured
by, among other things, the Receivables.
In consideration of the mutual
agreements, provisions and covenants contained herein, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain
Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
“Account Control
Agreement” means each agreement, in form and substance satisfactory to the Administrative Agent, among the Borrower, the Servicer,
the Administrative Agent and a Collection Account Bank, governing the terms of the related Collection Accounts, that, among other things,
provides the Administrative Agent with control within the meaning of the UCC over the deposit accounts subject to such agreement, as the
same may be amended, restated, supplemented or otherwise modified from time to time.
“Adjusted LC Participation
Amount” means, at any time of determination, the greater of (i) the LC Participation Amount less the amount of cash collateral
held in the LC Collateral Account at such time and (ii) zero ($0).
“Administrative Agent”
means PNC, in its capacity as contractual representative for the Credit Parties, and any successor thereto in such capacity appointed
pursuant to Article XI or Section 13.03(f).
“Adverse Claim”
means any Lien, except any Permitted Lien.
“Advisors”
has the meaning set forth in Section 13.06(c).
“Affected Person”
means each Credit Party and each of their respective Affiliates.
“Affiliate”
means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power
to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities,
by contract or otherwise.
“Aggregate Capital”
means, at any time of determination, the aggregate outstanding Capital of all Lenders and LC Participants at such time.
“Aggregate Interest”
means, at any time of determination, the aggregate accrued and unpaid Interest on the Loans of all Lenders at such time.
“Agreement”
has the meaning set forth in the preamble to this Agreement.
“Anti-Corruption
Law” means (a) the U.S. Foreign Corrupt Practices Act of 1977, as amended; (b) the U.K. Bribery Act 2010, as amended;
and (c) any other Applicable Law relating to anti-bribery or anti-corruption in any jurisdiction in which any Borrower-Related Party
is located or doing business.
“Anti-Terrorism Law”
means any Applicable Law in force or hereinafter enacted related to terrorism, money laundering, or economic sanctions, including the
Bank Secrecy Act, 31 U.S.C. § 5311 et seq., the USA PATRIOT Act, the International Emergency Economic Powers Act, 50 U.S.C.
1701, et seq., the Trading with the Enemy Act, 50 U.S.C. App. 1, et seq., 18 U.S.C. § 2332d, and 18 U.S.C. § 2339B.
“Applicable Law”
means, with respect to any Person, (x) all provisions of law, statute, treaty, constitution, ordinance, rule, regulation, ordinance,
requirement, restriction, permit, executive order, certificate, decision, directive or order of any Governmental Authority applicable
to such Person or any of its property and (y) all judgments, injunctions, orders, writs, decrees and awards of all courts and arbitrators
in proceedings or actions in which such Person is a party or by which any of its property is bound. For the avoidance of doubt, FATCA
shall constitute an “Applicable Law” for all purposes of this Agreement.
2
“Assignment and Acceptance
Agreement” means an assignment and acceptance agreement entered into by a Lender, an Eligible Assignee and the Administrative
Agent, and, if required, the Borrower, pursuant to which such Eligible Assignee may become a party to this Agreement, in substantially
the form of Exhibit C hereto.
“Attorney Costs”
means and includes all fees, costs, expenses and disbursements of any law firm or other external counsel and all disbursements of internal
counsel.
“Available Tenor”
means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark
is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an Tranche Period
pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component
thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark,
in each case, 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 “Tranche Period” pursuant to Section 5.04.
“Bankruptcy Code”
means the United States Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq.), as amended from time to time.
“Base Rate”
means, for any day, a rate per annum equal to the highest of (a) the Prime Rate, (b) the Overnight Bank Funding Rate in effect
on such day plus 0.50% and (c) Daily 1M SOFR in effect on such day plus 1.00%. Any change in the Base Rate
due to a change in the Base Rate, Overnight Bank Funding Rate or Term SOFR shall be effective from and including the effective date of
such change in the Overnight Bank Funding Rate or Daily 1M SOFR, respectively;
provided, however,
if the Base Rate as determined above would be less than zero, then such rate shall be deemed to be zero.
“Base Rate Loan”
means a Loan that bears interest based on the Base Rate.
“Base Rate Option”
means the option of the Borrower to have Loans bear interest at the rate and under the terms specified in Section 2.05(a)(ii)(B);
“Beneficial Ownership
Regulation” means 31 C.F.R. § 1010.230.
“Benchmark”
means, initially, Term SOFR; provided that if a Benchmark Transition Event has occurred with respect to Term SOFR or the then current
Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced
such prior benchmark rate pursuant to Section 5.04.
“Benchmark Replacement”
means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the
Administrative Agent for the applicable Benchmark Replacement Date:
(1) Daily
Simple SOFR; and
3
(2) the
sum of (A) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration
to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant
Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to
the then-current Benchmark, for U.S. dollar-denominated syndicated credit facilities at such time and (B) the related Benchmark Replacement
Adjustment; provided that, in the case of clause (B) above, such adjustment shall not be in the form of an increase of the applicable
margin;
provided; further that
if the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the
Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Transaction Documents.
Notwithstanding anything to the contrary
herein, any such Benchmark Replacement, including any Conforming Changes made to a Benchmark Replacement, or alternate rate of interest
shall meet the standards set forth in Proposed U.S. Treasury Regulations under Section 1.1001-6 (or any successor U.S. Treasury Regulations
or other official Internal Revenue Service guidance promulgated that supersedes such Proposed U.S. Treasury Regulations) so as not to
be treated as a “modification” (and therefor an exchange) of any Loans for purposes of Treasury Regulations Section 1.1001-3.
“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 (a) 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 (b) 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 U.S. Dollar denominated syndicated credit facilities at such time.
“Benchmark Replacement
Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(1) in
the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (A) the
date of the public statement or publication of information referenced therein and (B) the date on which the administrator of such
Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors
of such Benchmark (or such component thereof); or
(2) in
the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark
(or the published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of
such Benchmark (or such component thereof) or 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; or
4
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 solely to the extent such event applies 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 Federal Reserve Board, 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 or on behalf of the administrator of such Benchmark (or the published component used
in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component 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 solely to the extent that a public statement or
publication of information set forth above has occurred with respect to all then-current Available Tenors of such Benchmark (or the published
component used in the calculation thereof).
“Benchmark Unavailability
Period” means the period (if any) (x) 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 Transaction Document in
accordance with Section 5.04 and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark
for all purposes hereunder and under any Transaction Document in accordance with Section 5.04.
5
“Borrower”
has the meaning specified in the preamble to this Agreement.
“Borrower Indemnified
Amounts” has the meaning set forth in Section 12.01(a).
“Borrower Indemnified
Party” has the meaning set forth in Section 12.01(a).
“Borrower Material
Adverse Effect” means a material adverse effect on any of the following:
(a) the
assets, operations, business or financial condition of the Borrower;
(b) the
ability of the Borrower to perform its obligations under this Agreement or any other Transaction Document to which it is a party;
(c) the
validity or enforceability of this Agreement or any other Transaction Document to which the Borrower is a party, or the validity, enforceability,
value or collectibility of any material portion of the Pool Receivables;
(d) the
status, perfection, enforceability or priority of the Administrative Agent’s security interest in the Collateral; or
(e) the
rights and remedies of any Credit Party under the Transaction Documents or associated with its respective interest in the Collateral.
“Borrower Obligations”
means all present and future indebtedness, reimbursement obligations, and other liabilities and obligations (howsoever created, arising
or evidenced, whether direct or indirect, absolute or contingent, or due or to become due) of the Borrower to any Credit Party, Borrower
Indemnified Party and/or any Affected Person, arising under or in connection with this Agreement or any other Transaction Document or
the transactions contemplated hereby or thereby, and shall include, without limitation, all Capital and Interest on the Loans, reimbursement
for drawings under the Letters of Credit, all Fees and all other amounts due or to become due under the Transaction Documents (whether
in respect of fees, costs, expenses, indemnifications or otherwise), including, without limitation, interest, fees and other obligations
that accrue after the commencement of any Insolvency Proceeding with respect to the Borrower (in each case whether or not allowed as a
claim in such proceeding).
“Borrower’s
Net Worth” means, at any time of determination, an amount equal to (i) the Outstanding Balance of all Pool Receivables
at such time, minus (ii) the sum of (A) the Aggregate Capital at such time, plus (B) the Adjusted LC Participation
Amount at such time, plus (C) the Aggregate Interest at such time, plus (D) the aggregate accrued and unpaid Fees
at such time, plus (E) the aggregate outstanding principal balance of all Subordinated Notes at such time, plus (F) the
aggregate accrued and unpaid interest on all Subordinated Notes at such time, plus (G) without duplication, the aggregate
accrued and unpaid other Borrower Obligations at such time.
6
“Borrowing Base”
means, at any time of determination, the amount equal to the lesser of (a) the Facility Limit and (b) the amount equal to (i) the
Net Receivables Pool Balance at such time, minus (ii) the Total Reserves at such time.
“Borrowing Base Deficit”
means, at any time of determination, the amount, if any, by which (a) the Aggregate Capital plus the Adjusted LC Participation Amount
at such time, exceeds (b) the Borrowing Base at such time.
“Borrowing Tranche”
means specified portions of Loans consisting of simultaneous loans of the same Type, and in the case of Term Rate Loans, having the same
Tranche Period. For the avoidance of doubt, Daily Rate Loans of the same Type shall be considered one Borrowing Tranche.
“Breakage Fee”
means (i) for any Tranche Period for which Interest is computed by reference to the SOFR Rate and a reduction of Capital is made
for any reason on any day other than the last day of the related Tranche Period or (ii) to the extent that the Borrower shall for
any reason, fail to borrow on the date specified by the Borrower in connection with any request for funding pursuant to Article II
of this Agreement, the amount, if any, by which (A) the additional Interest (calculated without taking into account any Breakage
Fee or any shortened duration of such Tranche Period pursuant to the definition thereof) which would have accrued during such Tranche
Period on the reductions of Capital relating to such Tranche Period had such reductions not been made (or, in the case of clause (ii) above,
the amounts so failed to be borrowed or accepted in connection with any such request for funding by the Borrower), exceeds (B) the
income, if any, received by the applicable Lender from the investment of the proceeds of such reductions of Capital (or such amounts failed
to be borrowed by the Borrower). A certificate as to the amount of any Breakage Fee (including the computation of such amount) shall be
submitted by the affected Lender to the Borrower and shall be conclusive and binding for all purposes, absent manifest error.
“BrightView”
has the meaning specified in the preamble to this Agreement.
“Business Day”
means any day (other than a Saturday or Sunday) on which: banks are not authorized or required to close in Pittsburgh, Pennsylvania, or
New York City, New York; provided that for purposes of any direct or indirect calculation or determination of, or when used in
connection with any interest rate settings, fundings, disbursements, settlements, payments, or other dealings with respect to any SOFR
Rate Loan, Daily 1M SOFR Loan or Daily Simple SOFR Loan, Business Day means a U.S. Government Securities Business Day.
“Capital”
means, with respect to any Lender, without duplication, the aggregate amounts (i) paid to, or on behalf of, the Borrower in connection
with all Loans made by such Lender pursuant to Article II, (ii) paid by such Lender, as an LC Participant, to the LC
Bank in respect of a Participation Advance made by such Lender to LC Bank pursuant to Section 3.04(b) and (iii) with
respect to the Lender that is the LC Bank, paid by the LC Bank with respect to all drawings under the Letter of Credit to the extent such
drawings have not been reimbursed by the Borrower or funded by Participation Advances, as reduced from time to time by Collections distributed
and applied on account of such Capital pursuant to Section 4.01; provided, that if such Capital shall have been reduced
by any distribution and thereafter all or a portion of such distribution is rescinded or must otherwise be returned for any reason, such
Capital shall be increased by the amount of such rescinded or returned distribution as though it had not been made.
7
“Capital Stock”
means, with respect to any Person, any and all common shares, preferred shares, interests, participations, rights in or other equivalents
(however designated) of such Person’s capital stock, partnership interests, limited liability company interests, membership interests
or other equivalent interests and any rights (other than debt securities convertible into or exchangeable for capital stock), warrants
or options exchangeable for or convertible into such capital stock or other equity interests.
“Change in Control”
means the occurrence of any of the following:
(a) Parent
ceases to own, directly, 100% of the issued and outstanding Capital Stock and all other equity interests of the Borrower free and clear
of all Adverse Claims;
(b) Parent
ceases to own, directly or indirectly, 100% of the issued and outstanding Capital Stock, membership interests or other equity interests
of any Originator;
(c) any
Subordinated Note shall at any time cease to be owned by an Originator, free and clear of all Adverse Claims;
(d) a
“Change of Control” (as defined in the Credit Agreement) shall have occurred;
(e) Holdings
ceases to own, directly or indirectly, 100% of the issued and outstanding Capital Stock, membership interests or other equity interests
of Parent; or
(f) with
respect to Holdings, any “person”, “entity” or “group” (within the meaning of Section 13(d) or
14(d) of the Exchange Act), other than the Permitted Holders, shall at any time have acquired direct or indirect beneficial ownership
of a percentage of the voting power of the outstanding Voting Stock of Holdings that exceeds 35% thereof, unless the Permitted Holders
have, at such time, the right or the ability by voting power, contract or otherwise to elect or designate for election at least a majority
of the board of directors of Holdings.
“Change in Law”
means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not
having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (w) the
final rule titled Risk-Based Capital Guidelines; Capital Adequacy Guidelines; Capital Maintenance: Regulatory Capital; Impact
of Modifications to Generally Accepted Accounting Principles; Consolidation of Asset-Backed Commercial Paper Programs; and Other Related
Issues, adopted by the United States bank regulatory agencies on December 15, 2009, (x) the Dodd-Frank Wall Street Reform
and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all
requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to the agreements
reached by the Basel Committee on Banking Supervision in “Basel III: A Global Regulatory Framework for More Resilient Banks and
Banking Systems” (as amended, supplemented or otherwise modified or replaced from time to time), shall in each case be deemed to
be a “Change in Law”, regardless of the date enacted, adopted or issued.
8
“Closing Date”
means April 28, 2017.
“Code”
means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.
“Collateral”
has the meaning set forth in Section 5.06(a).
“Collection Account”
means each account listed on Schedule II to this Agreement (as such schedule may be modified from time to time in connection with
the closing or opening of any Collection Account in accordance with the terms hereof) (in each case, in the name of the Borrower) and
maintained at a bank or other financial institution acting as a Collection Account Bank pursuant to an Account Control Agreement for the
purpose of receiving Collections.
“Collection Account
Bank” means any of the banks or other financial institutions holding one or more Collection Accounts.
“Collections”
means, with respect to any Pool Receivable: (a) all funds that are received by any Originator, the Borrower, the Servicer or any
other Person on their behalf in payment of any amounts owed in respect of such Pool Receivable (including purchase price, service charges,
finance charges, interest, fees and all other charges), or applied to amounts owed in respect of such Pool Receivable (including insurance
payments, proceeds of drawings under supporting letters of credit and net proceeds of the sale or other disposition of repossessed goods
or other collateral or property of the related Obligor or any other Person directly or indirectly liable for the payment of such Pool
Receivable and available to be applied thereon), (b) all Deemed Collections, (c) all proceeds of all Related Security with respect
to such Pool Receivable and (d) all other proceeds of such Pool Receivable.
“Commitment”
means, with respect to any Lender, LC Participant or LC Bank, as applicable, the maximum aggregate amount which such Person is obligated
to lend or pay hereunder on account of all Loans and all drawings under all Letters of Credit, on a combined basis, as set forth on Schedule
I or in such other agreement pursuant to which it became a Lender and/or LC Participant, as such amount may be modified in connection
with any subsequent assignment pursuant to Section 13.03 or in connection with a reduction in the Facility Limit pursuant
to Section 2.02(e). If the context so requires, “Commitment” also refers to a Lender’s obligation to make
Loans, make Participation Advances and/or issue Letters of Credit hereunder in accordance with this Agreement.
“Concentration Percentage”
means (i) for any Group A Obligor, 7.515.00%,
(ii) for any Group B Obligor, 7.5%, (iii) for any Group C Obligor, 7.5%, (iv) for the two largest Group D Obligors, 5.0%
each, and (v) for any other Group D Obligor, 3.0%.
9
“Concentration Reserve
Percentage” means the largest of: (a) the sum of the five (5) largest Obligor Percentages of the Group D Obligors,
(b) the sum of the three (3) largest Obligor Percentages of the Group C Obligors, (c) the sum of the two (2) largest
Obligor Percentages of the Group B Obligors and (d) the largest Obligor Percentage of the Group A Obligors.
“Conforming Changes”
means, with respect to any SOFR Rate, Daily 1M SOFR or Daily Simple SOFR or the use, administration, adoption or implementation of any
Benchmark Replacement in relation thereto, any technical, administrative or operational changes (including changes to the definition of
“Base Rate,” the definition of “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 breakage provisions, and other technical, administrative or operational matters) that the Administrative
Agent decides may be appropriate to reflect the adoption and implementation of any SOFR Rate, Daily 1M SOFR or Daily Simple SOFR or such
Benchmark Replacement and 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 that no market practice for the administration of any SOFR Rate, Daily 1M SOFR or Daily
Simple SOFR or the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably
necessary in connection with the administration of this Agreement and the other Transaction Documents).
“Consolidated EBITDA”
shall (along with each defined term constituting a component thereof) have the meaning assigned thereto in the Credit Agreement as in
effect on the Third Amendment Date without giving effect to any amendment, restatement, waiver or supplement thereto unless otherwise
agreed to in writing by the Administrative Agent in its sole discretion.
“Contract”
means, with respect to any Receivable, any and all contracts, instruments, agreements, leases, invoices, notes or other writings pursuant
to which such Receivable arises or that evidence such Receivable or under which an Obligor becomes or is obligated to make payment in
respect of such Receivable.
“Controlled Group”
means all members of a controlled group of corporations or other business entities and all trades or businesses (whether or not incorporated)
under common control which, together with Holdings or any of its Subsidiaries, are treated as a single employer under Section 414
of the Code.
“Covered Entity”
means (a) each of Borrower, the Servicer, each Originator, Holdings and each of Holding’s Subsidiaries and (b) each Person
that, directly or indirectly, is in control of a Person described in clause (a) above. For purposes of this definition, control of
a Person means the direct or indirect (x) ownership of, or power to vote, 25% or more of the issued and outstanding equity interests
having ordinary voting power for the election of directors of such Person or other Persons performing similar functions for such Person,
or (y) power to direct or cause the direction of the management and policies of such Person whether by ownership of equity interests,
contract or otherwise.
10
“Credit Agreement”
means that certain Credit Agreement, dated as of December 18, 2013 (as amended, restated, amended and restated or otherwise modified
from time to time), by and among Brightview Holdings, Inc. as holdings, Brightview Landscapes, LLC,
as the borrower, the lending institutions from time to time parties thereto and JPMorgan Chase Bank, N.A., as the administrative
agent, the collateral agent, the swingline lender, a letter of credit issuer and a lender.
“Credit and Collection
Policy” means, as the context may require, those receivables credit and collection policies and practices of the Originators
in effect on the Closing Date and described in Exhibit E, as modified in compliance with this Agreement.
“Credit Extension”
means the making of any Loan or the issuance of any Letter of Credit or any modification, extension or renewal of any Letter of Credit.
“Credit Party”
means each Lender, the LC Bank, each LC Participant and the Administrative Agent.
“Daily 1M SOFR”
means, for any day, the rate per annum determined by the Administrative Agent by dividing (the resulting quotient rounded upwards, at
the Administrative Agent’s discretion, to the nearest 1/100th of 1%) (a) the Term SOFR Reference Rate for such day for a one
(1) month period, as published by the Term SOFR Administrator, by (b) a number equal to 1.00 minus the SOFR Reserve Percentage;
provided, that if Daily 1M SOFR, determined as provided above, would be less than the Floor, then Daily 1M SOFR shall be deemed
to be the Floor. Such rate of interest will be adjusted automatically as of each Business Day based on changes in Daily 1M SOFR without
notice to the Borrower.
“Daily 1M SOFR Loan”
means a Loan that bears interest based on Daily 1M SOFR.
“Daily 1M SOFR Option”
means the option of the Borrower to have Loans bear interest at the rate and under the terms specified in Section 2.05(a)(ii)(C).
“Daily Rate Loan”
means a Loan that bears interest at a rate based on the (i) Base Rate, (ii) Daily Simple SOFR or (iii) Daily 1M SOFR.
“Daily Rate Loan
Option” means the option of the Borrower to have Loans bear interest at the rate and under the terms specified in Section 2.05(a)(ii).
“Daily Simple SOFR”
means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent
in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily
Simple SOFR” for business loans; provided, that if the Administrative Agent decides that any such convention is not administratively
feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Daily Simple SOFR
Loan” means a Loan that bears interest based on Daily Simple SOFR.
“Daily Simple SOFR
Option” means the option of the Borrower to have Loans bear interest at the rate and under the terms specified in Section 2.05(a)(ii)(A).
11
“Days’ Sales
Outstanding” means, for any Fiscal Month, an amount computed as of the last day of such Fiscal Month equal to: (a) the
average of the Outstanding Balance of all Pool Receivables (other than Unbilled Receivables) as of the last day of each of the three most
recent Fiscal Months ended on the last day of such Fiscal Month, divided by (b) (i) the aggregate initial Outstanding
Balance of all Pool Receivables (other than Unbilled Receivables) generated by the Originators during the three most recent Fiscal Months
ended on the last day of such Fiscal Month, divided by (ii) 90.
“Debt”
means, as to any Person at any time of determination, any and all indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or joint or several) of such Person for or in respect of: (i) borrowed
money, (ii) amounts raised under or liabilities in respect of any bonds, debentures, notes, note purchase, acceptance or credit facility,
or other similar instruments or facilities, (iii) reimbursement obligations (contingent or otherwise) under any letter of credit,
(iv) any other transaction (including production payments (excluding royalties), installment purchase agreements, forward sale or
purchase agreements, capitalized leases and conditional sales agreements) having the commercial effect of a borrowing of money entered
into by such Person to finance its operations or capital requirements (but not including (a) accounts payable incurred in the ordinary
course of such Person’s business payable on terms customary in the trade, (b) prepaid or deferred revenue arising in the ordinary
course of business and (c) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase
price of an asset to satisfy warrants or other unperformed obligations of the seller of such asset), (v) all net obligations of such
Person in respect of interest rate or currency hedges or (vi) without duplication, any Guaranty of any such Debt.
“Deemed Collections”
has the meaning set forth in Section 4.01(d).
“Default Ratio”
means the ratio (expressed as a percentage and rounded to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of
the last day of each Fiscal Month by dividing: (a) the aggregate Outstanding Balance of all Pool Receivables that became Defaulted
Receivables during such Fiscal Month, by (b) the aggregate initial Outstanding Balance of all Pool Receivables (other than
Unbilled Receivables) generated by the Originators during the month that is seven (7) Fiscal Months before such Fiscal Month.
“Defaulted Receivable”
means a Receivable:
(a) as
to which any payment, or part thereof, remains unpaid for more than 180 days after the original invoice date for such Receivable;
(b) as
to which an Insolvency Proceeding shall have occurred with respect to the Obligor thereof or any other Person obligated thereon or owning
any Related Security with respect thereto;
(c) that
has been written off the applicable Originator’s or the Borrower’s books as uncollectible and that remains unpaid for less
than 181 days after the original invoice date for such Receivable; or
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(d) that,
consistent with the Credit and Collection Policy, should be written off the applicable Originator’s or the Borrower’s books
as uncollectible;
provided, however, that in each
case above such amount shall be calculated without giving effect to any netting of credits that have not been matched to a particular
Receivable for the purposes of aged trial balance reporting.
“Defaulting Lender”
means any Lender that (a) (i) has failed, within two (2) Business Days of the date required to be funded or paid, to (A) fund
any portion of its Loans or (B) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the
case of clause (A) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such
Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default,
if any) has not been satisfied or (ii) fails to pay the Swingline Lender its Swingline Settlement Amount or any interest accrued
thereon, (b) has notified the Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does
not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates
that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including
the particular default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in which
it commits to extend credit, (c) has failed, within three (3) Business Days after request by a Credit Party, acting in good
faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is
financially able to meet such obligations) to fund prospective Loans under this Agreement, provided that such Lender shall cease to be
a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance
satisfactory to it and the Administrative Agent, or (d) has become the subject of an Insolvency Proceeding.
“Delinquency Ratio”
means the ratio (expressed as a percentage and rounded to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of
the last day of each Fiscal Month by dividing: (a) the aggregate Outstanding Balance of all Pool Receivables that were Delinquent
Receivables on such day, by (b) the aggregate Outstanding Balance of all Pool Receivables on such day.
“Delinquent Receivable”
means a Receivable as to which any payment, or part thereof, remains unpaid for more than 120 days from the original invoice date for
such Receivable; provided, however, that such amount shall be calculated without giving effect to any netting of credits
that have not been matched to a particular Receivable for the purposes of aged trial balance reporting.
“Dilution Horizon
Ratio” means, for any Fiscal Month, the ratio (expressed as a percentage and rounded to the nearest 1/100th of 1%, with 5/1000th
of 1% rounded upward) computed as of the last day of such Fiscal Month by dividing: (a) the aggregate initial Outstanding
Balance of all Pool Receivables (other than Unbilled Receivables) generated by the Originators during the most recently ended Fiscal Month,
by (b) the Net Receivables Pool Balance as of the last day of such Fiscal Month. Within thirty (30) days of the completion
and the receipt by the Administrative Agent of the results of any annual audit or field exam of the Receivables and the servicing and
origination practices of the Servicer and the Originators, the numerator of the Dilution Horizon Ratio may be adjusted by the Administrative
Agent upon not less than five (5) Business Days’ notice to the Borrower to reflect such number of Fiscal Months as the Administrative
Agent reasonably believes best reflects the business practices of the Servicer and the Originators and the actual amount of dilution and
Deemed Collections that occur with respect to Pool Receivables based on the weighted average dilution lag calculation completed as part
of such audit or field exam.
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“Dilution Ratio”
means, for any Fiscal Month, the ratio (expressed as a percentage and rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded
upward), computed as of the last day of each Fiscal Month by dividing: (i) the aggregate amount of Deemed Collections during
such Fiscal Month (other than any Deemed Collections with respect to any Receivables that were both (x) generated by an Originator
during such Fiscal Month and (y) written off the applicable Originator’s or the Borrower’s books as uncollectible during
such Fiscal Month), by (ii) the aggregate initial Outstanding Balance of all Pool Receivables (other than Unbilled Receivables)
generated by the Originators during the Fiscal Month that is one (1) month prior to such Fiscal Month.
“Dilution Reserve
Percentage” means, at any time of determination, the product (expressed as a percentage and rounded to the nearest 1/100th of
1%, with 5/1000th of 1% rounded upward) of (a) the Dilution Horizon Ratio, multiplied by (b) the sum of (i) the
Stress Factor multiplied by the average of the Dilution Ratios for the twelve (12) most recent Fiscal Months, plus (ii) the
Dilution Volatility Component.
“Dilution Volatility
Component” means, for any Fiscal Month, the product (expressed as a percentage and rounded to the nearest 1/100th of 1%, with
5/1000th of 1% rounded upward) of (a) the positive difference, if any, between: (i) the highest Dilution Ratio for any Fiscal
Month during the twelve (12) most recent Fiscal Months and (ii) the arithmetic average of the Dilution Ratios for such twelve (12)
Fiscal Months, multiplied by (b) the quotient of (i) the highest Dilution Ratio for any Fiscal Month during the twelve
(12) most recent Fiscal Months, divided by (ii) the arithmetic average of the Dilution Ratios for such twelve (12) Fiscal
Months.
“Dollars”
and “$” each mean the lawful currency of the United States of America.
“Drawing Date”
has the meaning set forth in Section 3.04(a).
“Eligible Assignee”
means (i) any Lender or any of its Affiliates, (ii) any Person managed by a Lender or any of its Affiliates and (iii) any
other financial or other institution.
“Eligible Canadian
Obligor” means an Obligor that both (i) is organized in or that has a head office (domicile), registered office, and chief
executive office located in Canada and (ii) is not a Governmental Authority.
“Eligible Foreign
Obligor” means a Foreign Obligor whose head office (domicile), registered office and chief executive office is in a country
that is not a Sanctioned Jurisdiction.
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“Eligible Receivable”
means, at any time of determination, a Pool Receivable:
(a) the
Obligor of which is: (i) either a U.S. Obligor, an Eligible Canadian Obligor or an Eligible Foreign Obligor; (ii) not a Sanctioned
Person; (iii) not subject to any Insolvency Proceeding; (iv) not an Affiliate of the Borrower, the Servicer, the Parent, the
Performance Guarantor or any Originator; (v) not the Obligor with respect to Delinquent Receivables with an aggregate Outstanding
Balance exceeding 50% of the aggregate Outstanding Balance of all such Obligor’s Pool Receivables; (vi) not a natural person
and (vii) not a material supplier to any Originator or an Affiliate of a material supplier;
(b) that
is denominated and payable only in Dollars in the United States of America, and the Obligor with respect to which has been instructed
to remit Collections in respect thereof directly to a Lock-Box or Collection Account in the United States of America;
(c) that
does not have a due date which is more than 120 days after the original invoice date of such Receivable;
(d) that
(i) arises under a Contract for the sale of goods or services in the ordinary course of the applicable Originator’s business
and (ii) does not constitute a loan or other similar financial accommodation being provided by the applicable Originator;
(e) that
arises under a duly authorized Contract that (i) is in full force and effect, (ii) is governed by the law of the United States
of America or of any State thereof and (iii) is a legal, valid and binding obligation of the related Obligor, enforceable against
such Obligor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law;
(f) that
has been transferred by an Originator to the Borrower pursuant to the Purchase and Sale Agreement with respect to which transfer all conditions
precedent under the Purchase and Sale Agreement have been met;
(g) that,
together with the Contract related thereto, conforms in all material respects with all Applicable Laws (including any applicable laws
relating to usury, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices
and privacy);
(h) with
respect to which all consents, licenses, approvals or authorizations of, or registrations or declarations with, or notices to, any Governmental
Authority or other Person, required to be obtained by, effected or given to an Originator in connection with the creation of such Receivable,
the execution, delivery and performance by such Originator of the related Contract or the assignment thereof under the Purchase and Sale
Agreement have been duly obtained, effected or given and are in full force and effect;
(i) that
is not subject to any existing dispute, right of rescission, right of set-off, counterclaim, any other defense against the applicable
Originator (or any assignee of such Originator) or Adverse Claim or unexpired volume or pricing discounts or rebates or other adjustments
or dilutions, including such amounts accrued for in BrightView’s general ledger account #4601 or #2101 (or any replacement thereof);
provided that only the portion of such Pool Receivable subject to such dispute, right of rescission, right of set-off, counterclaim,
defense, Adverse Claim or unexpired volume or pricing discount or rebate or other adjustment or dilution shall be ineligible;
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(j) that
satisfies all applicable requirements of the Credit and Collection Policy;
(k) that,
together with the Contract related thereto, has not been modified, waived or restructured since its creation, except as permitted pursuant
to Section 9.02 of this Agreement;
(l) in
which the Borrower owns good and marketable title, free and clear of any Adverse Claims, and that is freely assignable (including without
any consent of the related Obligor or any Governmental Authority unless such consent has been obtained) and that payments thereon are
free and clear of any withholding Tax;
(m) for
which the Administrative Agent (on behalf of the Secured Parties) has a valid and enforceable first priority perfected security interest
therein and in the Related Security and Collections with respect thereto in which a security interest may be perfected by the filing of
a financing statement under the UCC, in each case free and clear of any Adverse Claim;
(n) that
(x) constitutes an “account” or “general intangible” (as defined in the UCC), (y) is not evidenced by
instruments or chattel paper and (z) does not constitute, or arise from the sale of, as extracted collateral (as defined in the UCC);
(o) that
is neither a Defaulted Receivable nor a Delinquent Receivable;
(p) for
which no Originator, the Borrower, the Parent, the Performance Guarantor or the Servicer has established any offset or netting arrangements
with the related Obligor in connection with the ordinary course of payment of such Receivable;
(q) that
represents amounts earned and payable by the Obligor that are not subject to the performance of additional services by the Originator
thereof or by the Borrower and the related goods or merchandise shall have been shipped and/or services performed, other than, in the
case of an Eligible Unbilled Receivable, the billing or invoicing of such Receivable; provided, that if such Receivable is subject
to the performance of additional services, only the portion of such Receivable attributable to such additional services shall be ineligible;
(r) which
(i) does not arise from a sale of accounts made as part of a sale of a business or constitute an assignment for the purpose of collection
only, (ii) is not a transfer of a single account made in whole or partial satisfaction of a preexisting indebtedness or an assignment
of a right to payment under a contract to an assignee that is also obligated to perform under the contract and (iii) is not a transfer
of an interest in or an assignment of a claim under a policy of insurance;
(s) which
does not relate to the sale of any consigned goods or finished goods which have incorporated any consigned goods into such finished goods;
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(t) for
which the related Originator (i) has recognized the related revenue on its financial books and records in accordance with GAAP and
(ii) is not the Puerto Rico Originator;
(u) for
which neither the related Originator nor any Affiliate thereof is holding any deposits received by or on behalf of the related Obligor;
provided that only the portion of such Pool Receivable in an amount equal to such deposits shall be ineligible;
(v) that,
if such Receivable is an Unbilled Receivable, is an Eligible Unbilled Receivable.
“Eligible Unbilled
Receivable” means, at any time, any Unbilled Receivable if (a) the related Originator has recognized the related revenue
on its financial books and records in accordance with GAAP and (b) the Outstanding Balance of such Unbilled Receivable was included
in the definition of Modified Days’ Sales Outstanding, Modified Days’ Sales Outstanding would not exceed the Maximum Term;
provided, however, for purposes of exclusion of any Unbilled Receivable pursuant to this clause (b), Unbilled Receivables
shall be excluded in order based on the Outstanding Balance (with the smallest amount excluded first). For purposes of this definition
of “Eligible Unbilled Receivable”, “Maximum Term” means 75 days.
“Embargoed Property”
means any property: (a) owned, directly or indirectly, by a Sanctioned Person; (b) due to or from a Sanctioned Person; (c) in
which a Sanctioned Person otherwise holds any interest; (d) located in a Sanctioned Jurisdiction; or (e) that otherwise could
cause any actual or possible violation by the Lenders, Administrative Agent, or Structuring Agent of any applicable Anti-Terrorism Law
if the Lenders were to obtain an encumbrance on, lien on, pledge of, or security interest in such property, or provide services in consideration
of such property; provided, however, that property will not be considered Embargoed Property solely due to a limited partner
of KKR & Co. Inc. being designated as a Sanctioned Person if said limited partner’s interest in the property has been blocked.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued thereunder.
“ERISA Affiliate”
means, with respect to any Person, any corporation, trade or business which together with the Person is a member of a controlled group
of corporations or a controlled group of trades or businesses and would be deemed a “single employer” within the meaning of
Sections 414(b), (c), (m) of the Code or Section 4001(b) of ERISA.
“Erroneous Payment”
has the meaning assigned to it in Section 11.11.
“Event of Default”
has the meaning specified in Section 10.01. For the avoidance of doubt, any Event of Default that occurs shall be deemed to
be continuing at all times thereafter unless and until waived in accordance with Section 13.01.
“Excess Concentration”
means the sum of the following amounts, without duplication:
(a) the
sum of the amounts calculated for each of the Obligors equal to the excess (if any) of (i) the aggregate Outstanding Balance of the
Eligible Receivables of such Obligor, over (ii) the product of (x) such Obligor’s Concentration Percentage, multiplied
by (y) the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool; plus
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(b) the
excess (if any) of (i) the aggregate Outstanding Balance of all Eligible Receivables, the Obligor of which is an Eligible Canadian
Obligor, net of any other Excess Concentrations (if any) related to such Eligible Canadian Obligor’s Concentration Percentage, over
(ii) the product of (x) 1.0%, multiplied by (y) the aggregate Outstanding Balance of all Eligible Receivables then
in the Receivables Pool; plus
(c) the
excess (if any) of (i) the aggregate Outstanding Balance of all Eligible Receivables, the Obligor of which is an Eligible Foreign
Obligor, net of any other Excess Concentrations (if any) related to such Eligible Foreign Obligor’s Concentration Percentage, over
(ii) the product of (x) 1.0%, multiplied by (y) the aggregate Outstanding Balance of all Eligible Receivables then
in the Receivables Pool; plus
(d) the
excess (if any) of (i) the aggregate Outstanding Balance of all Eligible Receivables, the Obligor of which is a Federal Governmental
Authority, net of any other Excess Concentrations (if any) related to such Obligor’s Concentration Percentage, over (ii) the
product of (x) 1.0%, multiplied by (y) the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables
Pool; plus
(e) the
excess (if any) of (i) the aggregate Outstanding Balance of all Eligible Receivables that are Eligible Unbilled Receivables, over
(ii) the product of (x) 30.0% (or if a Ratings Event has occurred and is continuing and the Administrative Agent has elected
in its sole discretion to reduce such percentage, 15.0%), multiplied by (y) the aggregate Outstanding Balance of all Eligible
Receivables then in the Receivables Pool; plus
(f) the
excess (if any) of (i) the aggregate Outstanding Balance of all Eligible Receivables that have a due date which is more than 60 days
and less than 91 days after the original invoice date of such Receivable, over (ii) the product of (x) 25.0%, multiplied
by (y) the aggregate Outstanding Balance of all Receivables then in the Receivables Pool; plus
(g) the
excess (if any) of (i) the aggregate Outstanding Balance of all Eligible Receivables that have a due date which is more than 90 days
and less than 121 days after the original invoice date of such Receivable, over (ii) the product of (x) 12.5%, multiplied
by (y) the aggregate Outstanding Balance of all Receivables then in the Receivables Pool.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended or otherwise modified from time to time.
“Excluded Taxes”
means any of the following Taxes imposed on or with respect to an Affected Person or required to be withheld or deducted from a payment
to an Affected Person: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes,
in each case, (i) imposed as a result of such Affected Person being organized under the laws of, or having its principal office or,
in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision
thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts
payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect
on the date on which (i) such Lender makes a Loan or its Commitment or (ii) such Lender changes its lending office, except in
each case to the extent that amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before
such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to a
Lender’s failure to comply with Section 5.03(f) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
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“Facility Limit”
means $325,000,000, as may be reduced or increased from time to time pursuant to Section 2.02(e) or 2.02(h), respectively.
References to the unused portion of the Facility Limit shall mean, at any time of determination, an amount equal to (x) the Facility
Limit at such time, minus (y) the sum of the Aggregate Capital plus the LC Participation Amount.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreement entered into pursuant to Section 1471(b)(1) of the Code, and any laws, regulations, rules or practices adopted
pursuant to any intergovernmental agreement entered into with respect to the foregoing.
“Federal Governmental
Authority” means the government of the United States of America, 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.
“Federal Reserve
Board” means the Board of Governors of the Federal Reserve System, or any entity succeeding to any of its principal functions.
“Fee Letter”
has the meaning specified in Section 2.03(a).
“Fees”
has the meaning specified in Section 2.03(a).
“Fifth Amendment
Date” means June 27, 2024.
“Final Maturity Date”
means the earlier of (i) the date that (iA)
is 120 days following the Termination Date or (iiB)
such earlier date on which the Aggregate Capital and all other Borrower Obligations become due and payable pursuant to Section 10.01.
and (ii) the Springing Maturity Date; provided that
the Final Maturity Date shall be the date set forth in clause (i) if (a) there is no Specified Term Loan Indebtedness outstanding
or (b) the aggregate outstanding principal amount of all Specified Term Loan Indebtedness on the Springing Maturity Date is less
than $100,000,000; provided, that if the date referred to in clause (i) or clause (ii) of this definition is not a Business
Day, then such date shall be the immediately preceding Business Day. For purposes of this definition, the term “Specified Term Loan
Indebtedness” shall have the meaning assigned thereto in the Credit Agreement on the Sixth Amendment Date without giving effect
to any amendment, restatement, waiver or supplement thereto unless otherwise agreed to in writing by the Administrative Agent in its sole
discretion.
“Final Payout Date”
means the date on or after the Termination Date when (i) the Aggregate Capital and Aggregate Interest have been paid in full, (ii) the
LC Participation Amount has been reduced to zero ($0) and no Letters of Credit issued hereunder remain outstanding and undrawn, (iii) all
Borrower Obligations shall have been paid in full, (iv) all other amounts owing to the Credit Parties and any other Borrower Indemnified
Party or Affected Person hereunder and under the other Transaction Documents have been paid in full and (v) all accrued Servicing
Fees have been paid in full.
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“Financial Covenant
Event” shall be deemed to have occurred if, at any time during the Compliance Period, the Leverage Ratio as of the last day
of any Test Period ending during any Compliance Period is greater than 6.50 to 1.00. As used in this definition, “Compliance Period”
and “Test Period” (and any defined term constituting a component of such terms) have the meanings assigned to such terms in
the Credit Agreement as in effect on the Third Amendment Date without giving effect to any amendment, restatement, waiver or supplement
thereto unless otherwise agreed to in writing by the Administrative Agent in its sole discretion. If at any time following the Third Amendment
Date, the Credit Agreement is amended, restated, waived, supplemented or otherwise modified to directly or indirectly modify the covenant,
or any defined term constituting a component thereof, set forth in Section 10.7 of the Credit Agreement (as in effect on the
Third Amendment Date), the Administrative Agent may unilaterally (in its sole discretion) by written notice to the Borrower and each Lender
modify this definition and/or Section 10.01(u) to conform to the Credit Agreement as so amended, restated, waived, supplemented
or otherwise modified.
“Financial Officer”
of any Person means, the president, the chief executive officer, the chief financial officer, the chief accounting officer, the principal
accounting officer, the controller, the treasurer, the assistant treasurer, vice president-finance or any other senior officer of such
Person designated as such in writing to the Administrative Agent by such person.
“First Amendment
Date” means February 21, 2019.
“Fiscal Month”
means each calendar month.
“Floor”
means a rate of interest equal to 0.00%.
“Foreign Obligor”
means an Obligor which is a corporation or other business organization whose head office (domicile), registered office and chief executive
office is in a country that is not the United States or Canada.
“Fourth Amendment
Date” means August 31, 2023.
“GAAP”
means generally accepted accounting principles in the United States of America, consistently applied.
“Governmental Acts”
has the meaning set forth in Section 3.09.
“Governmental Authority”
means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local,
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 and any group or body charged with setting financial accounting or regulatory capital rules or
standards (including the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking
Supervision or any successor or similar authority to any of the foregoing)).
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“Group A Obligor”
means any Obligor (or its parent or majority owner, as applicable, if such Obligor is not rated) with a short-term rating of at least:
(a) “A-1” by S&P, or if such Obligor does not have a short-term rating from S&P, a rating of “A+”
or better by S&P on such Obligor’s, its parent’s, or its majority owner’s (as applicable) long-term senior unsecured
and uncredit-enhanced debt securities, or (b) “P-1” by Moody’s, or if such Obligor does not have a short-term
rating from Moody’s, “Al” or better by Moody’s on such Obligor’s, its parent’s or its majority owner’s
(as applicable) long-term senior unsecured and uncredit-enhanced debt securities; provided, that if an Obligor (or its parent or
majority owner, as applicable, if such Obligor is not rated) receives a split rating from S&P and Moody’s, then such Obligor
(or its parent or majority owner, as applicable) shall be deemed to have only the lower of the two rating for the purpose of determining
whether such rating satisfies clauses (a) or (b) above. Notwithstanding the foregoing, any Obligor that is a Subsidiary
of an Obligor that satisfies the definition of “Group A Obligor” shall be deemed to be a Group A Obligor and shall be aggregated
with the Obligor that satisfies such definition for the purposes of determining the “Concentration Reserve Percentage”, the
“Concentration Reserve” and clause (a) of the definition of “Excess Concentration” for such Obligors,
unless such deemed Obligor separately satisfies the definition of “Group A Obligor”, “Group B Obligor”, or “Group
C Obligor”, in which case such Obligor shall be separately treated as a Group A Obligor, a Group B Obligor or a Group C Obligor,
as the case may be, and shall be aggregated and combined for such purposes with any of its Subsidiaries that are Obligors.
“Group B Obligor”
means an Obligor (or its parent or majority owner, as applicable, if such Obligor is not rated) that is not a Group A Obligor, with a
short-term rating of at least: (a) “A-2” by S&P, or if such Obligor does not have a short-term rating from S&P,
a rating of “BBB+” to “A” by S&P on such Obligor’s, its parent’s or its majority owner’s
(as applicable) long-term senior unsecured and uncredit-enhanced debt securities, or (b) “P-2” by Moody’s,
or if such Obligor does not have a short-term rating from Moody’s, “Baal” to “A2” by Moody’s on such
Obligor’s, its parent’s or its majority owner’s (as applicable) long-term senior unsecured and uncredit-enhanced debt
securities; provided, that if an Obligor (or its parent or majority owner, as applicable, if such Obligor is not rated) receives
a split rating from S&P and Moody’s, then such Obligor (or its parent or majority owner, as applicable) shall be deemed to have
only the lower of the two rating for the purpose of determining whether such rating satisfies clauses (a) or (b) above.
Notwithstanding the foregoing, any Obligor that is a Subsidiary of an Obligor that satisfies the definition of “Group B Obligor”
shall be deemed to be a Group B Obligor and shall be aggregated with the Obligor that satisfies such definition for the purposes of determining
the “Concentration Reserve Percentage”, the “Concentration Reserve” and clause (a) of the definition
of “Excess Concentration” for such Obligors, unless such deemed Obligor separately satisfies the definition of “Group
A Obligor”, “Group B Obligor”, or “Group C Obligor”, in which case such Obligor shall be separately treated
as a Group A Obligor, a Group B Obligor or a Group C Obligor, as the case may be, and shall be aggregated and combined for such purposes
with any of its Subsidiaries that are Obligors.
21
“Group C Obligor”
means an Obligor (or its parent or majority owner, as applicable, if such Obligor is not rated) that is not a Group A Obligor or a Group
B Obligor, with a short-term rating of at least: (a) “A-3” by S&P, or if such Obligor does not have a short-term
rating from S&P, a rating of “BBB-” to “BBB” by S&P on such Obligor’s, its parent’s or its
majority owner’s (as applicable) long-term senior unsecured and uncredit-enhanced debt securities, or (b) “P-3”
by Moody’s, or if such Obligor does not have a short-term rating from Moody’s, “Baa3” to “Baa2” by
Moody’s on such Obligor’s, its parent’s or its majority owner’s (as applicable) long-term senior unsecured and
uncredit-enhanced debt securities; provided, that if an Obligor (or its parent or majority owner, as applicable, if such Obligor
is not rated) receives a split rating from S&P and Moody’s, then such Obligor (or its parent or majority owner, as applicable)
shall be deemed to have only the lower of the two rating for the purpose of determining whether such rating satisfies clauses (a) or
(b) above. Notwithstanding the foregoing, any Obligor that is a Subsidiary of an Obligor that satisfies the definition of
“Group C Obligor” shall be deemed to be a Group C Obligor and shall be aggregated with the Obligor that satisfies such definition
for the purposes of determining the “Concentration Reserve Percentage”, the “Concentration Reserve” and clause
(a) of the definition of “Excess Concentration” for such Obligors, unless such deemed Obligor separately satisfies
the definition of “Group A Obligor”, “Group B Obligor”, or “Group C Obligor”, in which case such Obligor
shall be separately treated as a Group A Obligor, a Group B Obligor or a Group C Obligor, as the case may be, and shall be aggregated
and combined for such purposes with any of its Subsidiaries that are Obligors.
“Group D Obligor”
means any Obligor that is not a Group A Obligor, Group B Obligor or Group C Obligor; provided, that any Obligor (or its parent
or majority owner, as applicable, if such Obligor is unrated) that is not rated by both Moody’s and S&P shall be a Group D Obligor.
“Guaranty”
of any Person means any obligation of such Person guarantying or in effect guarantying any Debt, liability or obligation of any other
Person in any manner, whether directly or indirectly, including any such liability arising by virtue of partnership agreements, including
any agreement to indemnify or hold harmless any other Person, any performance bond or other suretyship arrangement and any other form
of assurance against loss, except endorsement of negotiable or other instruments for deposit or collection in the ordinary course of business.
“Holdings”
means BrightView Holdings, Inc. (f/k/a BrightView Acquisition Holdings, Inc.), a Delaware corporation.
“Indemnified Taxes”
means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of
the Borrower or any of its Affiliates under any Transaction Document and (b) to the extent not otherwise described in clause (a) above,
Other Taxes.
“Independent Director”
has the meaning set forth in Section 8.03(c).
“Interest Period”
means, with respect to each Loan, (i) initially, the period commencing on the date such or
fees payable hereunder, (i) with respect to any Loan is made pursuant to
Section 2.01 on or after the Settlement Date immediately preceding the
Sixth Amendment Date, the period commencing on such Settlement Date immediately preceding the Sixth Amendment Date (or in
the case of anysuch
fees payable hereunder, commencing on (and
including) the ThirdSixth
Amendment Date), and ending on (but not including) the next
Settlementlast day of the calendar month in which the Sixth
Amendment Date occurs and (ii) thereafter, each period
commencing on such Settlement Date(and
including) the first day of a calendar month and ending on (but notand
including) the next Settlement Datelast
day of such calendar month.
22
“Initial Investors”
means Kohlberg Kravis Roberts & Co. L.P., KKR North America Fund XI L.P., KKR North America Fund XI ESC L.P., and KKR North America
Fund XI SBS L.P., and each of their respective Affiliates.
“Insolvency Proceeding”
means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors or (b) any general assignment for the benefit
of creditors of a Person, composition, marshaling of assets for creditors of a Person, or other, similar arrangement in respect of its
creditors generally or any substantial portion of its creditors, in each of clauses (a) and (b) undertaken under U.S. Federal,
state or foreign law, including the Bankruptcy Code.
“Intended Tax Treatment”
has the meaning set forth in Section 13.14.
“Interest”
means, for each Loan for each day during any Interest Period (or portion thereof), the amount of interest accrued on the Capital of such
Loan during such Interest Period (or portion thereof) in accordance with Section 2.03(b).
“Interest Rate Option”
means any Term Rate Loan Option or Daily Rate Loan Option.
“Interim Report”
means a report, in substantially the form of Exhibit I.
“Investment Company
Act” means the Investment Company Act of 1940, as amended or otherwise modified from time to time.
“ISDA Definitions”
means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto,
as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time
to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“LC Bank”
has the meaning set forth in the preamble to this Agreement.
“LC Collateral Account”
means each account at any time designated as an LC Collateral Account established and maintained by the Administrative Agent (for the
benefit of the LC Bank and the LC Participants), or such other account(s) as may be so designated as such by the Administrative Agent.
“LC Fee Expectation”
has the meaning set forth in Section 3.05(c).
“LC Limit”
means $125,000,000. References to the unused portion of the LC Limit shall mean, at any time of determination, an amount equal to (x) the
LC Limit at such time, minus (y) the LC Participation Amount.
23
“LC Participant”
means PNC, MUFG and each other Person that becomes a party to this Agreement in the capacity of an “LC Participant”.
“LC Participation
Amount” means at any time of determination, the sum of the amounts then available to be drawn under all outstanding Letters
of Credit.
“LC Request”
means a letter in substantially the form of Exhibit A-1 hereto executed and delivered by the Borrower to the Administrative
Agent, the LC Bank and the Lenders pursuant to Section 3.02(a).
“LCR Security”
means any commercial paper or security (other than equity securities issued to Parent or any Originator that is a consolidated subsidiary
of Parent under GAAP) within the meaning of Paragraph __.32(e)(viii) of the final rules titled Liquidity Coverage Ratio: Liquidity
Risk Measurement Standards, 79 Fed. Reg. 197, 61440 et seq. (October 10, 2014).
“Lender”
means PNC and each other Person that becomes a party to this Agreement in the capacity of a “Lender”, including PNC as Swingline
Lender.
“Lender’s Account”
means, with respect to any Lender the account(s) from time to time designated in writing by such Lender to the Borrower and the Servicer
for purposes of receiving payments to or for the account of such Lender and its Affiliates hereunder.
“Letter of Credit”
means any stand-by letter of credit issued by the LC Bank at the request of the Borrower pursuant to this Agreement.
“Letter of Credit
Application” has the meaning set forth in Section 3.02(a).
“Leverage Ratio”
shall (along with each defined term constituting a component thereof) have the meaning assigned to the term “Consolidated First
Lien Secured Debt to Consolidated EBITDA Ratio” in the Credit Agreement as in effect on the Third Amendment Date without giving
effect to any amendment, restatement, waiver or supplement thereto unless otherwise agreed to in writing by the Administrative Agent in
its sole discretion.
“Lien”
means any ownership interest or claim, mortgage, deed of trust, pledge, lien, security interest, hypothecation, charge or other encumbrance
or security arrangement of any nature whatsoever, whether voluntarily or involuntarily given, including, but not limited to, any conditional
sale or title retention arrangement, and any assignment, deposit arrangement or lease intended as, or having the effect of, security and
any filed financing statement or other notice of any of the foregoing (whether or not a lien or other encumbrance is created or exists
at the time of the filing).
“Loan”
means any loan made by a Lender pursuant to Section 2.02.
“Loan Request”
means a letter in substantially the form of Exhibit A-1 hereto executed and delivered by the Borrower to the Administrative
Agent and the Lenders pursuant to Section 2.02(a).
24
“Lock-Box”
means each locked postal box with respect to which a Collection Account Bank has executed an Account Control Agreement pursuant to which
it has been granted exclusive access for the purpose of retrieving and processing payments made on the Receivables and which is listed
on Schedule II (as such schedule may be modified from time to time in connection with the addition or removal of any Lock-Box in
accordance with the terms hereof).
“Loss Horizon Ratio”
means, at any time of determination, the ratio (expressed as a percentage and rounded to the nearest 1/100 of 1%, with 5/1000th of 1%
rounded upward) computed by dividing: (a) the sum of (x) aggregate initial Outstanding Balance of all Pool Receivables
(other than Unbilled Receivables) generated by the Originators during the three most recent Fiscal Months plus (y) 87.5% of the aggregate
initial Outstanding Balance of all Pool Receivables (other than Unbilled Receivables) generated by the Originators during the fourth most
recent Fiscal Month; by (b) the Net Receivables Pool Balance as of such date.
“Loss Reserve Percentage”
means, at any time of determination, the product (expressed as a percentage and rounded to the nearest 1/100th of 1%, with 5/1000th of
1% rounded upward) of (a) the Stress Factor, multiplied by (b) the highest average of the Default Ratios for any three
(3) consecutive Fiscal Months during the twelve (12) most recent Fiscal Months, multiplied by (c) the Loss Horizon Ratio.
“Majority Lenders”
means one or more Lenders that, individually or in the aggregate, hold more than 50% of the aggregate Commitments of all Lenders (or,
if the Commitments have been terminated, hold Loans with more than 50% of the Aggregate Capital).
“Material Adverse
Effect” means a circumstance or condition that would, individually or in the aggregate, materially adversely affect:
(a) the
assets, operations, business or financial condition of the Performance Guarantor and its Subsidiaries, taken as a whole;
(b) the
ability of the Servicer, the Performance Guarantor or any Originator, taken as a whole, to perform its obligations under this Agreement
or any other Transaction Document to which it is a party;
(c) the
validity or enforceability of this Agreement or any other Transaction Document, or the validity, enforceability, value or collectibility
of any material portion of the Pool Receivables;
(d) the
status, perfection, enforceability or priority of the Administrative Agent’s security interest in the Collateral; or
(e) the
rights and remedies of any Credit Party under the Transaction Documents or associated with its respective interest in the Collateral.
“Minimum Dilution
Reserve Percentage” means, at any time of determination, the product (expressed as a percentage and rounded to the nearest 1/100th
of 1%, with 5/1000th of 1% rounded upward) of (a) the average of the Dilution Ratios for the twelve (12) most recent Fiscal Months,
multiplied by (b) the Dilution Horizon Ratio.
25
“Minimum Funding
Threshold” means, on any day, an amount equal to the lesser of (a) the product of (i) 50.0% times (ii) the
Facility Limit at such time and (b) the Borrowing Base at such time.
“Modified Days’
Sales Outstanding” means, for any Fiscal Month, an amount computed as of the last day of such Fiscal Month equal to: (a) the
average of the Outstanding Balance of all Pool Receivables as of the last day of each of the three most recent Fiscal Months ended on
the last day of such Fiscal Month, divided by (b) (i) the aggregate initial Outstanding Balance of all Pool Receivables
generated by the Originators during the three most recent Fiscal Months ended on the last day of such Fiscal Month, divided by
(ii) 90.
“Month”,
with respect to a Tranche Period under the Term Rate Loan Option, means the interval between the days in consecutive calendar months numerically
corresponding to the first day of such Tranche Period. If any Tranche Period for a Term Rate Loan begins on a day of a calendar month
for which there is no numerically corresponding day in the month in which such Tranche Period is to end, the final month of such Tranche
Period shall be deemed to end on the last Business Day of such final month.
“Monthly Report”
means a report in substantially the form of Exhibit F.
“Monthly Settlement
Date” means the 20th calendar day of each calendar month (or if such day is not a Business Day, the next occurring
Business Day).
“Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto that is a nationally recognized statistical rating organization.
“MUFG”
means MUFG Bank, Ltd.
“Multiemployer Plan”
means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Borrower, the Servicer, any Originator, the
Parent, the Performance Guarantor or any of their respective ERISA Affiliates (other than one considered an ERISA Affiliate only pursuant
to subsection (m) or (o) of Section 414 of the Code) is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an obligation to make contributions.
“Net Receivables
Pool Balance” means, at any time of determination: (a) the aggregate Outstanding Balance of all Eligible Receivables then
in the Receivables Pool, minus (b) the Excess Concentration.
“Notice Date”
has the meaning set forth in Section 3.02(b).
“Obligor”
means, with respect to any Receivable, the Person obligated to make payments pursuant to the Contract relating to such Receivable.
“Obligor Percentage”
means, at any time of determination, for each Obligor, a fraction, expressed as a percentage, (a) the numerator of which is the aggregate
Outstanding Balance of the Eligible Receivables of such Obligor less the amount (if any) then included in the calculation of the Excess
Concentration with respect to such Obligor and its Pool Receivables and (b) the denominator of which is the aggregate Outstanding
Balance of all Eligible Receivables at such time.
26
“OFAC”
means the U.S. Department of Treasury’s Office of Foreign Assets Control.
“Order”
has the meaning set forth in Section 3.10.
“Originator”
and “Originators” have the meaning set forth in the Purchase and Sale Agreement, as the same may be modified from time
to time by adding new Originators or removing Originators, in each case with the prior written consent of the Administrative Agent.
“Other Connection
Taxes” means, with respect to any Affected Person, Taxes imposed as a result of a present or former connection between such
Affected Person and the jurisdiction imposing such Tax (other than connections arising from such Affected Person having executed, delivered,
become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged
in any other transaction pursuant to or enforced any Transaction Document, or sold or assigned an interest in any Loan or Transaction
Document).
“Other Taxes”
means any and all present or future stamp or documentary Taxes or any other similar excise or property Taxes, charges or levies or fees
arising from any payment made hereunder or from the execution, delivery, filing, recording or enforcement of, or otherwise in respect
of, this Agreement, the other Transaction Documents and the other documents or agreements to be delivered hereunder or thereunder, except
any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“Outstanding Balance”
means, at any time of determination, with respect to any Receivable, the then outstanding principal balance thereof.
“Overnight Bank Funding
Rate” means for any day, the rate comprised of both overnight federal funds and overnight eurocurrency borrowings by U.S.-managed
banking offices of depository institutions, as such composite rate shall be determined by the Federal Reserve Bank of New York (“NYFRB”),
as set forth on its public website from time to time, and as published on the next succeeding Business Day as the overnight bank funding
rate by the NYFRB (or by such other recognized electronic source (such as Bloomberg) selected by the Administrative Agent for the purpose
of displaying such rate); provided, that if such day is not a Business Day, the Overnight Bank Funding Rate for such day shall be such
rate on the immediately preceding Business Day; provided, further, that if such rate shall at any time, for any reason,
no longer exist, a comparable replacement rate determined by the Administrative Agent at such time (which determination shall be conclusive
absent manifest error). If the Overnight Bank Funding Rate determined as above would be less than zero, then such rate shall be deemed
to be zero. The rate of interest charged shall be adjusted as of each Business Day based on changes in the Overnight Bank Funding Rate
without notice to the Borrower.
“Parent”
means BrightView Landscapes, LLC, a Delaware limited liability company.
“Parent Group”
has the meaning set forth in Section 8.03(c).
“Participant”
has the meaning set forth in Section 13.03(d).
27
“Participant Register”
has the meaning set forth in Section 13.03(e).
“Participation Advance”
has the meaning set forth in Section 3.04(b).
“PATRIOT Act”
has the meaning set forth in Section 13.15.
“PBGC”
means the Pension Benefit Guaranty Corporation, or any successor thereto.
“Pension Plan”
means a pension plan as defined in Section 3(2) of ERISA that is subject to Title IV of ERISA with respect to which any Originator,
the Borrower or any other member of the Controlled Group may have any liability, contingent or otherwise.
“Percentage”
means, at any time of determination, with respect to any Lender, a fraction (expressed as a percentage), (a) the numerator of which
is (i) prior to the termination of all Commitments hereunder, its Commitment at such time or (ii) if all Commitments hereunder
have been terminated, the aggregate outstanding Capital of all Loans being funded by such Lender at such time and (b) the denominator
of which is (i) prior to the termination of all Commitments hereunder, the aggregate Commitments of all Lenders at such time or (ii) if
all Commitments hereunder have been terminated, the Aggregate Capital at such time.
“Performance Guarantor”
means Holdings in its capacity as guarantor under the Performance Guaranty.
“Performance Guaranty”
means the Performance Guaranty, dated as of the Closing Date, by the Performance Guarantor in favor of the Administrative Agent for the
benefit of the Secured Parties, as such agreement may be amended, restated, supplemented or otherwise modified from time to time.
“Permitted Holders”
shall (along with each defined term constituting a component thereof) have the meaning assigned to such term in the Credit Agreement as
in effect on the Fourth Amendment Date without giving effect to any amendment, restatement, waiver or supplement thereto unless otherwise
agreed to in writing by the Administrative Agent in its sole discretion.
“Permitted Lien”
means (a) the interests of the Borrower, the Administrative Agent and each of the other Secured Parties under the Transaction Documents,
(b) any inchoate liens for current taxes, assessments, levies, fees and other government and similar charges not yet due and payable
or the amount or validity of which is being contested in good faith by appropriate proceedings and with respect to which adequate reserves
have been established in accordance with GAAP, but only so long as foreclosure with respect to such lien is not imminent and the use and
value of the property to which the liens attach are not impaired during the pendency of such proceedings, (c) liens arising out of
any judgment or award against any Originator with respect to which (i) an appeal or proceeding for review is being taken in good
faith and with respect to which there shall have been secured a bond pending such appeal or proceeding for review and (ii) such judgment
or award does not constitute an Event of Default, (d) any lien in favor of, or assigned to, the Administrative Agent (for the benefit
of the Secured Parties) and (e) any Lien on the Capital Stock or other equity interests of the Originators (excluding, for the avoidance
of doubt, any Lien on the Capital Stock of the Borrower) granted in connection with the Credit Agreement (or any refinancing thereof)
in favor of the secured parties thereunder.
28
“Person”
means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or any Governmental Authority.
“PINACLE”
means PNC’s PINACLE® credit management service and any and all services and systems provided or used in connection therewith,
and any similar or replacement electronic credit administration services implemented by PNC.
“PINACLE
Agreement” means a separate written agreement between Borrower and PNC regarding PINACLE, and any amendments, modifications or replacements
thereof.
“PNC” has
the meaning set forth in the preamble to this Agreement.
“Pool Receivable”
means a Receivable in the Receivables Pool.
“Portion of Capital”
means, with respect to any Lender and its related Capital, the portion of such Capital being funded or maintained by such Lender by reference
to a particular interest rate basis.
“Prime Rate”
means the interest rate per annum announced from time to time by the Administrative Agent at its main offices in Pittsburgh, Pennsylvania
as its then prime rate, which rate may not be the lowest or most favorable rate then being charged to commercial borrowers or others by
the Administrative Agent and may not be tied to any external rate of interest or index. Any change in the Prime Rate shall take effect
at the opening of business on the day such change is announced.
“Pro Forma Basis”
shall (along with each defined term constituting a component thereof) have the meaning assigned thereto in the Credit Agreement as in
effect on the Third Amendment Date without giving effect to any amendment, restatement, waiver or supplement thereto unless otherwise
agreed to in writing by the Administrative Agent in its sole discretion.
“Pro Rata Share”
means, as to any LC Participant, a fraction, the numerator of which equals the Commitment of such LC Participant at such time and the
denominator of which equals the aggregate of the Commitments of all LC Participants at such time.
“Puerto Rico Originator”
means BrightView Puerto Rico, LLC, a Puerto Rico limited liability company.
“Purchase and Sale
Agreement” means the Purchase and Sale Agreement, dated as of the Closing Date, among the Servicer, the Originators and the
Borrower, as such agreement may be amended, supplemented or otherwise modified from time to time.
“Purchase and Sale
Termination Event” has the meaning set forth in the Purchase and Sale Agreement.
“Ratings Event”
shall be deemed to have occurred on any day when Holdings does not have at least one of: (i) a rating of “B” or better
by S&P on the Holdings’ long-term senior unsecured and uncredit-enhanced debt securities or (ii) a rating of “B2”
or better by Moody’s on Holdings’ long-term senior unsecured and uncredit-enhanced debt securities.
29
“Receivable”
means any right to payment of a monetary obligation, whether or not earned by performance, owed to any Originator or the Borrower (as
assignee of an Originator), whether constituting an account, chattel paper, payment intangible, instrument or general intangible, in each
instance arising in connection with the sale of goods that have been or are to be sold or for services rendered or to be rendered, and
includes, without limitation, the obligation to pay any service charges, finance charges, interest, fees and other charges with respect
thereto. Any such right to payment arising from any one transaction, including, without limitation, any such right to payment represented
by an individual invoice or agreement, shall constitute a Receivable separate from a Receivable consisting of any such right to payment
arising from any other transaction.
“Receivables Pool”
means, at any time of determination, all of the then outstanding Receivables transferred (or purported to be transferred) to the Borrower
pursuant to the Purchase and Sale Agreement prior to the Termination Date.
“Register”
has the meaning set forth in Section 13.03(b).
“Reimbursement Obligation”
has the meaning set forth in Section 3.04(a).
“Related Rights”
has the meaning set forth in Section 1.1 of the Purchase and Sale Agreement.
“Related Security”
means, with respect to any Receivable:
(a) all
of the Borrower’s and each Originator’s interest in any goods (including returned goods), and documentation of title evidencing
the shipment or storage of any goods (including returned goods), the sale of which gave rise to such Receivable;
(b) all
instruments and chattel paper that may evidence such Receivable;
(c) all
other security interests or liens and property subject thereto from time to time purporting to secure payment of such Receivable, whether
pursuant to the Contract related to such Receivable or otherwise, together with all UCC financing statements or similar filings relating
thereto;
(d) all
of the Borrower’s and each Originator’s rights, interests and claims under the related Contracts and all guaranties, indemnities,
insurance and other agreements (including the related Contract) or arrangements of whatever character from time to time supporting or
securing payment of such Receivable or otherwise relating to such Receivable, whether pursuant to the Contract related to such Receivable
or otherwise;
(e) all
books and records of the Borrower and each Originator to the extent related to any of the foregoing, and all rights, remedies, powers,
privileges, title and interest (but not obligations) in and to each Lock-Box and all Collection Accounts, into which any Collections or
other proceeds with respect to such Receivables may be deposited, and any related investment property acquired with any such Collections
or other proceeds (as such term is defined in the applicable UCC);
30
(f) all
of the Borrower’s rights, interests and claims under the Purchase and Sale Agreement and the other Transaction Documents; and
(g) all
Collections and other proceeds (as defined in the UCC) of any of the foregoing.
“Release”
has the meaning set forth in Section 4.01(a).
“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.
“Reportable Compliance
Event” means that: (a) any Covered Entity becomes a Sanctioned Person, or is charged by indictment, criminal complaint,
or similar charging instrument, arraigned, custodially detained, penalized or the subject of an assessment for a penalty, or enters into
a settlement with a Governmental Authority in connection with any Anti-Terrorism Law or Anti-Corruption Law, or any predicate crime to
any Anti-Terrorism Law or Anti-Corruption Law, or has knowledge of facts or circumstances to the effect that it is reasonably likely that
any aspect of its operations represents a violation of any Anti-Terrorism Law or Anti-Corruption Law; (b) any Covered Entity engages
in a transaction that has caused or may cause any Credit Party to be in violation of any Anti-Terrorism Laws; (c) any Collateral
becomes Embargoed Property; or (d) any Covered Entity otherwise violates any of the representations, warranties or covenants set
forth in Sections 7.01(n), 7.01(o), 7.02(r), 7.02(s), 8.01(v) or 8.02(n) of this Agreement.
“Reportable Event”
means any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder with respect to a Pension
Plan (other than a Pension Plan maintained by an ERISA Affiliate which is considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of Section 414 of the Code).
“Representatives”
has the meaning set forth in Section 13.06(c).
“Required Capital
Amount” means $33,750,000.
“Restricted Payments”
has the meaning set forth in Section 8.01(r).
“S&P”
means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business, and any successor
thereto that is a nationally recognized statistical rating organization.
“Sanctioned Jurisdiction”
means any country, territory, or region that is the subject of sanctions administered by OFAC (currently the so-called Donetsk People’s
Republic, so-called Luhansk People’s Republic, and the Crimea regions of Ukraine, Cuba, Iran, North Korea, and Syria).
31
“Sanctioned Person”
means (a) a Person that is the subject of sanctions administered by OFAC or the U.S. Department of State (“State”),
including by virtue of being (i) named on OFAC’s list of “Specially Designated Nationals and Blocked Persons”;
(ii) organized under the Applicable Laws of, or physically located in a Sanctioned Jurisdiction; (iii) owned or controlled 50%
or more in the aggregate, by one or more Persons that are the subject of sanctions administered by OFAC; (b) a Person that is the
subject of sanctions maintained by the European Union (“E.U.”), including by virtue of being named on the E.U.’s
“Consolidated list of persons, groups and entities subject to E.U. financial sanctions” or other, similar lists; (c) a
Person that is the subject of sanctions maintained by the United Kingdom (“U.K.”), including by virtue of being named
on the “Consolidated List Of Financial Sanctions Targets in the U.K.” or other, similar lists; or (d) a Person that is
the subject of sanctions imposed by any Governmental Authority of a jurisdiction whose Applicable Laws apply to this Agreement.
“Scheduled Termination
Date” means June 2712,
20272029.
“SEC” means
the U.S. Securities and Exchange Commission or any governmental agencies substituted therefor.
“Secured Parties”
means each Credit Party, each Borrower Indemnified Party and each Affected Person.
“Securities Act”
means the Securities Act of 1933, as amended or otherwise modified from time to time.
“Servicer”
has the meaning set forth in the preamble to this Agreement, including any successor Servicer pursuant to Section 9.01.
“Servicer Indemnified
Amounts” has the meaning set forth in Section 12.02(a).
“Servicer Indemnified
Party” has the meaning set forth in Section 12.02(a).
“Servicing Fee”
means the fee referred to in Section 9.06(a).
“Servicing Fee Rate”
means the rate referred to in Section 9.06(a).
“Settlement Date”
means with respect to any Portion of Capital for any Interest Period or any Interest or Fees, (i) prior to the Termination Date and
so long as no Event of Default has occurred and is continuing, the Monthly Settlement Date and (ii) on and after the Termination
Date or if an Event of Default has occurred and is continuing, each day selected from time to time by the Administrative Agent (with the
consent or at the direction of the Majority Lenders) (it being understood that the Administrative Agent (with the consent or at the direction
of the Majority Lenders) may select such Settlement Date to occur as frequently as daily), or, in the absence of such selection, the Monthly
Settlement Date.
“Side Letter”
means that certain letter agreement, dated as of the Closing Date, among the Borrower, the Servicer and the Administrative Agent, as such
agreement may be amended, restated, supplemented or otherwise modified from time to time.
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“Sixth
Amendment Date” means June 12, 2026.
“SOFR”
means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator”
means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Rate”
means, with respect to Loans comprising any Borrowing Tranche to which Term SOFR applies for any Tranche Period, the rate per annum determined
by the Administrative Agent by dividing (the resulting quotient rounded upwards, at the Administrative Agent’s discretion, to the
nearest 1/100th of 1%) (a) two (2) Business Days prior to the first day of such Tranche Period and having a term comparable
to such Tranche Period; provided that if the rate is not published on such determination date, then the rate per annum for purposes
of this clause (a) shall be SOFR on the first Business Day immediately prior thereto, by (b) a number equal to 1.00 minus
the SOFR Reserve Percentage; provided, that if the SOFR Rate, determined as provided above, would be less than the Floor, then
the SOFR Rate shall be deemed to be the Floor.
“SOFR Rate Loan”
means a Loan that bears interest based on the SOFR Rate.
“SOFR Rate Option”
means the option of the Borrower to have Loans bear interest at the rate and under the terms specified in Section 2.05(a)(i)(A).
“SOFR Reserve Percentage”
shall mean, as of any day, the maximum effective percentage in effect on such day, if any, as prescribed by the Board of Governors of
the Federal Reserve System (or any successor) for determining the reserve requirements (including, without limitation, supplemental, marginal
and emergency reserve requirements) with respect to SOFR funding.
“Solvent”
means, with respect to any Person and as of any particular date, (i) the present fair market value (or present fair saleable value)
of the assets of such Person is not less than the total amount required to pay the probable liabilities of such Person on its total existing
debts and liabilities (including contingent liabilities) as they become absolute and matured, (ii) such Person is able to realize
upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal
course of business, (iii) such Person is not incurring debts or liabilities beyond its ability to pay such debts and liabilities
as they mature and (iv) such Person is not engaged in any business or transaction, and is not about to engage in any business or
transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice
in the industry in which such Person is engaged.
“Springing
Maturity Date” shall mean the date that is 91 days prior to the earliest then-scheduled maturity date for any Specified Term Loan
Indebtedness. For purposes of this definition, the term “Specified Term Loan Indebtedness” shall have the meaning assigned
thereto in the Credit Agreement on the Sixth Amendment Date without giving effect to any amendment, restatement, waiver or supplement
thereto unless otherwise agreed to in writing by the Administrative Agent in its sole discretion.
“Stress Factor”
means 2.25.
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“Structuring Agent”
means PNC Capital Markets LLC, a Pennsylvania limited liability company.
“Subordinated Note”
has the meaning set forth in the Purchase and Sale Agreement.
“Sub-Servicer”
has the meaning set forth in Section 9.01(d).
“Subsidiary”
means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock of each class
or other interests having ordinary voting power (other than stock or other interests having such power only by reason of the happening
of a contingency) to elect a majority of the Board of Directors or other managers of such entity are at the time owned, or management
of which is otherwise controlled: (a) by such Person, (b) by one or more Subsidiaries of such Person or (c) by such Person
and one or more Subsidiaries of such Person.
“Swingline Capital”
means, at any time, the aggregate outstanding Capital held by the Swingline Lender in respect of Swingline Loans to the extent such Capital
has not been purchased by the Lenders pursuant to Section 2.02(c)(iii) or reduced pursuant to Section 2.02(e) or
Section 4.01.
“Swingline Lender”
means PNC.
“Swingline Loan”
means any Loan made by the Swingline Lender pursuant to Section 2.02(c).
“Swingline Loan
Notice” has the meaning specified in Section 2.02(c).
“Swingline Settlement
Amount” has the meaning specified in Section 2.02(c)(iii).
“Swingline Settlement
Date” means (a) Friday of each week (or if any such Friday is not a Business Day, the next succeeding Business Day), (b) such
other Business Day as the Swingline Lender may specify in writing to the other Lenders upon not less than one (1) Business Day’s
prior written notice and (c) the first Business Day following the Termination Date (or, if such Termination Date is declared or
otherwise occurs after 3:00 p.m. on such Termination Date, the second Business Day following the Termination Date). For the avoidance
of doubt, the Swingline Settlement Date shall not be the date such Swingline Loan is made.
“Swingline Statement”
has the meaning specified in Section 2.02(c)(iii).
“Swingline Sub-Limit”
means $50,000,000.
“Taxes”
means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority
and all interest, penalties or additions to tax with respect thereto.
“Term Rate Loan”
means a Loan that bears interest at a rate based on the SOFR Rate.
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“Term Rate Loan Option”
means the option of the Borrower to have Loans bear interest at the rate and under the terms specified in Section 2.05(a)(i).
“Term SOFR”
means, with respect to any Tranche Period, the forward-looking term rate based on SOFR for a tenor comparable to the applicable Tranche
Period on the day (such day, the “Determination Day”) that is two (2) Business Days prior to the first day of
such Tranche 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 Determination Day the Term SOFR 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 Rate has not occurred, then Term SOFR will be the Term SOFR Rate for such
tenor published by the Term SOFR Administrator on the Business Day first preceding such Determination Day so long as such Business Day
is not more than three (3) Business Days prior to such Determination Day; provided, further, that if Term SOFR determined
as provided above shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.
“Term SOFR Administrator”
means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative
Agent in its reasonable discretion).
“Term SOFR Loan”
means a Loan that bears interest based on Term SOFR.
“Termination Date”
means the earliest to occur of (a) the Scheduled Termination Date, (b) the date on which the “Termination Date”
is declared or deemed to have occurred under Section 10.01, (c) the date selected by the Borrower on which all Commitments
have been reduced to zero pursuant to Section 2.02(e) and (d) the date (if any) on which the Borrower, the Servicer
or any Originator delivers to the Administrative Agent a written notice that the Borrower is unable to pay the “Purchase Price”
(as defined in the Purchase and Sale Agreement) for Receivables and Related Rights pursuant to Section 3.2 of the Purchase and Sale
Agreement.
“Test Period”
shall (along with each defined term constituting a component thereof) have the meaning assigned thereto in the Credit Agreement as in
effect on the Third Amendment Date without giving effect to any amendment, restatement, waiver or supplement thereto unless otherwise
agreed to in writing by the Administrative Agent in its sole discretion.
“Third Amendment
Date” shall mean June 22, 2022.
“Total Reserves”
means, at any time of determination, an amount equal to the product of the Net Receivables Pool Balance and the sum of: (a) the Yield
Reserve Percentage, plus (b) the greatest of (i) 15.0%, (ii) the sum of the Concentration Reserve Percentage plus
the Minimum Dilution Reserve Percentage and (iii) the sum of the Loss Reserve Percentage plus the Dilution Reserve Percentage.
“Tranche Period”
means the period of time selected by the Borrower in connection with (and to apply to) any election permitted hereunder by the Borrower
to have Loans bear interest under a Term Rate Loan Option. Subject to the last sentence of this definition, such period shall be one,
three or six Months. Such Interest Period shall commence on the effective date of such Term Rate Loan Option, which shall be (i) the
date of such Loan if the Borrower is requesting new Loans, or (ii) the date of renewal of or conversion to the Term Rate Loan Option
if the Borrower is renewing or converting to Term Rate Loan Option applicable to outstanding Loans. Notwithstanding the second sentence
hereof: (A) any Interest Period which would otherwise end on a date which is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in the next calendar month, in which case such Interest Period shall end on the next preceding
Business Day, and (B) the Borrower shall not select, convert to or renew an Interest Period for any portion of the Loans that would
end after the Scheduled Termination Date.
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“Transaction Documents”
means this Agreement, the Purchase and Sale Agreement, the Account Control Agreements, the Fee Letter, each Subordinated Note, the Performance
Guaranty, the Side Letter and all other certificates, instruments, UCC financing statements, reports, notices, agreements and documents
executed or delivered under or in connection with this Agreement, in each case as the same may be amended, supplemented or otherwise modified
from time to time in accordance with this Agreement.
“Type”,
when used in reference to any Loan or Borrowing Tranche, refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing Tranche, is determined by reference to (a) the Base Rate, (b) SOFR Rate, (c) Daily 1M SOFR or (d) Daily
Simple SOFR.
“UCC” means
the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction.
“Unadjusted Benchmark
Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unmatured Event
of Default” means an event that but for notice or lapse of time or both would constitute an Event of Default.
“Unbilled Receivable”
means, at any time, any Receivable as to which the invoice or bill with respect thereto has not yet been sent to the Obligor thereof.
“U.S. Government
Securities Business Day” means any day except for (a) a Saturday or Sunday or (b) 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. Obligor”
means an Obligor that is a corporation or other business organization and is organized under the laws of the United States of America
(or of a United States of America territory, district, state, commonwealth, or possession, including, without limitation, Puerto Rico
and the U.S. Virgin Islands) or any political subdivision thereof.
“U.S. Person”
means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Tax Compliance
Certificate” has the meaning set forth in Section 5.03(f)(ii)(B)(3).
36
“Volcker Rule”
means Section 13 of the U.S. Bank Holding Company Act of 1956, as amended, and the applicable rules and regulations thereunder.
“Voting Stock”
means, with respect to any Person as of any date, 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.
“Withdrawal Liability”
means 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.
“Yield Reserve Percentage”
means, at any time of determination:
1.50 x DSO x (BR + SFR)
360
where:
BR = the Base Rate;
DSO = the Days’ Sales Outstanding for the most recently ended Fiscal Month; and
SFR = the Servicing Fee Rate.
SECTION 1.02. Other
Interpretative Matters. All accounting terms not specifically defined herein shall be construed in accordance with GAAP. All terms
used in Article 9 of the UCC in the State of New York and not specifically defined herein, are used herein as defined in such Article 9.
Unless otherwise expressly indicated, all references herein to “Article,” “Section,” “Schedule”, “Exhibit”
or “Annex” shall mean articles and sections of, and schedules, exhibits and annexes to, this Agreement. For purposes of this
Agreement, the other Transaction Documents and all such certificates and other documents, unless the context otherwise requires: (a) references
to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (b) the
words “hereof,” “herein” and “hereunder” and words of similar import refer to such agreement (or the
certificate or other document in which they are used) as a whole and not to any particular provision of such agreement (or such certificate
or document); (c) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to
such agreement (or the certificate or other document in which the reference is made), and references to any paragraph, subsection, clause
or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or
definition; (d) the term “including” means “including without limitation”; (e) references to any Applicable
Law refer to that Applicable Law as amended from time to time and include any successor Applicable Law; (f) references to any agreement
refer to that agreement as from time to time amended, restated or supplemented or as the terms of such agreement are waived or modified
in accordance with its terms; (g) references to any Person include that Person’s permitted successors and assigns; (h) headings
are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof; (i) unless
otherwise provided, in the calculation of time from a specified date to a later specified date, the term “from” means “from
and including”, and the terms “to” and “until” each means “to but excluding”; (j) terms
in one gender include the parallel terms in the neuter and opposite gender; (k) references to any amount as on deposit or outstanding
on any particular date means such amount at the close of business on such day and (l) the term “or” is not exclusive.
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SECTION 1.03. SOFR
Notification. Section 5.04 provides a mechanism for determining an alternative rate of interest in the event that the SOFR Rate,
Daily 1M SOFR or Daily Simple SOFR is no longer available or in certain other circumstances. The Administrative Agent does not warrant
or accept any responsibility for and shall not have any liability with respect to, the administration, submission or any other matter
related to the SOFR Rate, Daily 1M SOFR or Daily Simple SOFR, or with respect to any alternative or successor rate thereto, or replacement
rate therefor.
SECTION 1.04. Conforming
Changes Relating to SOFR, Daily 1M SOFR or Daily Simple SOFR. With respect to SOFR, Daily 1M SOFR or Daily Simple SOFR, the Administrative
Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any
other Transaction Document, any amendments implementing such Conforming Changes will become effective without any further action or consent
of any other party to this Agreement or any other Transaction Document; provided that, with respect to any such amendment effected,
the Administrative Agent shall provide notice to the Borrower and the Lenders each such amendment implementing such Conforming Changes
reasonably promptly after such amendment becomes effective.
ARTICLE II
TERMS
OF THE LOANS
SECTION 2.01. Loan
Facility. Upon a request by the Borrower (i) pursuant to Section 2.02, and on the terms and subject to the conditions
hereinafter set forth, the Lenders shall, ratably in accordance with their respective Commitments, severally and not jointly, make Loans
to the Borrower or (ii) pursuant to Section 2.02(c), and on the terms and subject to the conditions hereinafter set forth, the
Swingline Lender shall make payments of Capital to the Borrower, in each case, from time to time during the period from the Closing Date
to the Termination Date. Under no circumstances shall any Lender be obligated to make any such Loan if, after giving effect to such Loan:
(i) the
Aggregate Capital plus the LC Participation Amount would exceed the Facility Limit, at such time;
(ii) the
sum of (A) the aggregate outstanding Capital of such Lender (excluding, in the case of the Swingline Lender, any then-outstanding
Swingline Capital attributable to any other Lender’s Swingline Settlement Amounts) plus (B) the related LC Participant’s
Pro Rata Share of the LC Participation Amount, would exceed the Commitment of such Lender; or
(iii) the
Aggregate Capital plus the Adjusted LC Participation Amount would exceed the Borrowing Base at such time.
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SECTION 2.02. Making
Loans; Repayment of Loans. (a) Each Loan (other than a Swingline Loan) hereunder shall be made on at least one (1) Business
Day’s prior written request from the Borrower to the Administrative Agent and each Lender in
the form of a Loan Request attached hereto as Exhibit A-1. Each such request for a Loan (1) in
the case of a Loan Request made pursuant to PINACLE, noon Eastern Time on the proposed date of such Loan or (2) in the case of any
other Loan Request, shall be made no later than noon (New York City time)Eastern
Time on a Business Day (it being understood that any such request made after such time shall be deemed to have been made
on the following Business Day) and shall specify (i) the amount of the Loan(s) requested (which shall not be less than $50,000
and shall be an integral multiple of $50,000 in excess thereof), (ii) the allocation of such amount among the Lenders (which shall
be ratable based on the Commitments), (iii) the account to which the proceeds of such Loan shall be distributed and (iv) the
date such requested Loan is to be made (which shall be a Business Day). Each Swingline Loan shall be requested and made in accordance
with Section 2.02(c).
(b) Funding
Loans. With respect to any Loan other than a Swingline Loan:
(i) On
the date of each Loan specified in the applicable Loan Request, the Lenderseach
Lender shall, upon satisfaction of the applicable conditions set forth in Article VI and pursuant to the other conditions
set forth in this Article II, deliverremit
to the Administrative Agent by wire transfer of immediately available funds atto
the account from time to time designated in writingspecified
by the Administrative Agent, an amount equal to for
such purpose, such Lender’s ratable share of the amount of such Loan requestedsuch
Loan (pursuant to Section 2.01) such that the Administrative Agent is able to, and the Administrative Agent shall, to the extent
the Lenders have made funds available to it for such purpose and subject to Section 6.02 and the other conditions set forth herein,
fund such Loan to the Borrower on the date of such Loan; provided that if any Lender fails to remit such funds to the Administrative Agent
in a timely manner, the Administravie Agent may elect in its sole discretion to fund with its own funds such Lender’s portion of
such Loan on the date thereof and such Lender shall be subject to the repayment obligation in Section 2.02(b)(ii). On the
date of each Loan, the Administrative Agent will make available to the Borrower, in immediately available funds, at the account set forth
in the related Loan Request, the amount of such Loan to be funded by all Lenders in respect of such Loan.
(ii) Unless
the Administrative Agent shall have received notice from a Lender, with a copy to the Borrower, prior to the proposed date of any Loan
that such Lender will not make available to the Administrative Agent such Lender’s share of such Loan, the Administrative Agent
may assume that such Lender has made such share available on such date in accordance with the foregoing clause (b)(i) and
may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Loan available to the Administrative Agent, then such Lender and the Borrower severally agree to pay
to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date
such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case
of such Lender, the greater of the Overnight Bank Funding Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower, the Base Rate. If such Lender pays such amount
to the Administrative Agent, then such amount shall constitute such Lender’s InvestmentLoan.
If the Borrower and such Lender shall pay such 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 interest paid by the Borrower for such period. Any such 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.
39
(c) Swingline
Loans.
(i) Swingline
Loan Notices. If the Borrower desires that the Swingline Lender make a Swingline Loan on any Business Day, the Borrower shall provide
the Swingline Lender and the Administrative Agent with prior irrevocable written notice thereof in the form of Exhibit A-2
(each, a “Swingline Loan Notice”) no later than 3:30 p.m. (New York City time) on such Business Day. Each Swingline
Loan Notice shall specify: (A) the amount of Capital requested to be paid to the Borrower (such amount, which shall not be less than
$50,000 (or such lesser amount as agreed to by the Swingline Lender) and shall be in integral multiples of $50,000, (B) the date
of such Swingline Loan (which shall be a Business Day and which may be the same Business Day on which such Swingline Loan Notice is delivered)
and (C) the pro forma calculation of the Borrowing Base after giving effect to the increase in the Aggregate Capital.
(ii) Funding
Swingline Loans. On the applicable date of such Swingline Loan, upon satisfaction of the applicable conditions precedent set forth
in Section 6.02, the Swingline Lender shall make available to the Borrower in same day funds no later than two (2) hours after
the Borrower provides the Swingline Loan Notice to the Swingline Lender and the Administrative Agent), at the account from time to time
designated in writing by the Borrower to the Swingline Lender, an amount equal to the Capital requested by the Borrower pursuant to the
related Swingline Loan Notice. Only one (1) Swingline Loan Notice may be outstanding for any Business Day.
(iii) Swingline
Settlements. Each of the Lenders acknowledges that the Swingline Lender will make Swingline Loans on same-day notice to facilitate
the administration of the facility evidenced by this Agreement, but that the Swingline Lender will do so based on its expectation that
not later than the next succeeding Swingline Settlement Date, each other Lender will purchase its ratable share of the aggregate outstanding
Swingline Capital at par. Accordingly, not later than 3:00 p.m. (New York City time) on the Business Day before each Swingline Settlement
Date, if any Swingline Capital is then outstanding, the Swingline Lender shall send a written statement (a “Swingline Statement”)
to each of the other Lender setting forth the amount of the outstanding Swingline Capital and each such Lender ratable share thereof (such
Lender’s “Swingline Settlement Amount”). Not later than 3:00 p.m. (New York City time) on the related Swingline
Settlement Date (and notwithstanding the occurrence of any intervening Event of TerminationDefault
or whether or not the conditions to making Loans are then satisfied), each Lender shall purchase from the Swingline Lender an amount of
the outstanding Swingline Capital equal to its Swingline Settlement Amount by paying to the Swingline Lender in immediately available
funds an amount equal to such Lender’s Swingline Settlement Amount; provided that the Lender that is also the Swingline Lender
shall be automatically deemed to have made such payment in its capacity as a Lender. Upon payment to the Swingline Lender of the Swingline
Settlement Amount, the paying Lender’s aggregate outstanding Capital shall be increased by the amount of such payment and the Swingline
Lender’s aggregate outstanding Capital shall be reduced by the amount of such payment. All Interest (and Fees) accrued on or with
respect to the Swingline Capital prior to such payment shall remain payable to the Swingline Lender for its own account.
40
(iv) Failure
to Settle. If any Lender fails to pay its Swingline Settlement Amount in full to the Swingline Lender by the time and date required
by Section 2.02(c)(iii), (i) the unpaid amount of such Swingline Settlement Amount shall bear interest, payable by such
Lender to the Swingline Lender upon demand, at a rate per annum equal to the SOFR Rate in effect on such day, and if not paid within three
(3) Business Days of the Swingline Lender’s demand, at a rate per annum equal to 3.00% per annum above the greater of (x) the
Base Rate in effect on such day and (y) the SOFR Rate in effect on such day and (ii) the Swingline Lender may cancel or suspend
availability of the Swingline Sub-Limit and shall have no obligation to make additional Swingline Loans. The Swingline Lender (whether
individually or as Administrative Agent) shall not be obligated to transfer any payments received by it for the benefit of such Lender
to any Lender that has failed to pay any Swingline Settlement Amount, nor shall any Lender that has failed to pay any Swingline Settlement
Amount be entitled to the sharing of any payments hereunder (including any Capital, Interest, Fees or other amounts). Amounts payable
to such Lender that has failed to pay any Swingline Settlement Amount shall instead be paid to the Swingline Lender in reduction of the
obligation of such Lender that has failed to pay any Swingline Settlement Amount to pay its Swingline Settlement Amount or interest thereon.
This Section shall remain effective with respect to a Lender that has failed to pay any Swingline Settlement Amount until such failure
is cured. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve
or excuse the performance by the SellerBorrower
of its duties and obligations hereunder.
(d) Each
Lender’s obligation shall be several, such that the failure of any Lender to make available to the Administrative
Agent or the Borrower any funds in connection with any Loan shall not relieve any other Lender of its obligation, if any, hereunder
to make funds available on the date such Loans are requested (it being understood, that no Lender shall be responsible for the
failure of any other Lender to make funds available to the Administrative
Agent or the Borrower in connection with any Loan hereunder).
41
(e) The
Borrower shall repay in full the outstanding Capital of each Lender on the Final Maturity Date. Prior thereto, the Borrower shall, on
each Settlement Date, make a prepayment of the outstanding Capital of the Lenders to the extent required under Section 4.01
and otherwise in accordance therewith. Notwithstanding the foregoing, the Borrower, in its discretion, shall have the right to make a
prepayment, in whole or in part, of the outstanding Capital of the Lenders (i) on
any Business Day upon one (1) Business Day’s prior written notice thereof if,
at such time, (A) PNC (or an Affiliate thereof) is the Administravie Agent, (B) Borrower has entered into a PINACLE Agreement
and (C) such prepayment is made with PINACLE, or (ii) upon one (1) Business Day’s prior written notice thereof to
the Administrative Agent and each Lender in the form of a Reduction Notice attached hereto
as Exhibit B; provided, however, that (i) each such prepayment shall be in a minimum aggregate amount of
$50,000 and shall be an integral multiple of $50,000 in excess thereof; provided, however that the Borrower shall not provide
a Reduction Notice or corresponding notice through PINACLE as contemplated
above, if such prepayment will cause the Aggregate Capital plus the Adjusted LC Participation Amount to be less than the Minimum
Funding Threshold; provided, however that notwithstanding the foregoing, a prepayment may be in an amount necessary to reduce
any Borrowing Base Deficit existing at such time to zero, and (ii) any accrued Interest and Fees in respect of such prepaid Capital
shall be paid on the immediately following Settlement Date. All prepayments made pursuant to this Section 2.02(e) (including
prepayments required under Section 4.01), shall first be applied to the principal amount of the Base Rate Loans, then to Daily Simple
SOFR Loans and Daily 1M SOFR Loans, then to Term SOFR Loans.
(f) The
Borrower may, at any time upon at least thirty (30) days’ prior written notice to the Administrative Agent and each Lender, terminate
the Facility Limit in whole or ratably reduce the Facility Limit in part. Each partial reduction in the Facility Limit shall be in a minimum
aggregate amount of $3,000,000 or integral multiples of $1,000,000 in excess thereof, and no such partial reduction shall reduce the Facility
Limit to an amount less than $100,000,000. In connection with any partial reduction in the Facility Limit, the Commitment of each Lender
and LC Participant, as well as the LC Limit, shall be ratably reduced.
(g) In
connection with any reduction of the Commitments, the Borrower shall remit to the Administrative Agent (i) instructions regarding
such reduction and (ii) for payment to the Lenders, cash in an amount sufficient to (A) repay the Capital of each Lender such
that its Capital will not exceed its Commitment as so reduced and (B) pay all other outstanding Borrower Obligations with respect
to such reduction (determined based on the ratio of the reduction of the Commitments being effected to the amount of the Commitments prior
to such reduction or, if the Administrative Agent reasonably determines that any portion of the outstanding Borrower Obligations is allocable
solely to that portion of the Commitments being reduced or has arisen solely as a result of such reduction, all of such portion) including,
without duplication, any associated Breakage Fees. Upon receipt of any such amounts, the Administrative Agent shall apply such amounts
first to the reduction of the Aggregate Capital, and second to the payment of the remaining outstanding Borrower Obligations with respect
to such reduction, including any Breakage Fees, by paying such amounts to the Lenders. Notwithstanding the forgoing, any such reduction
of the Commitments shall not be effective to the extent that after giving effect thereto the sum of (A) the aggregate outstanding
Capital of any Lender plus (B) the related LC Participant’s Pro Rata Share of the LC Participation Amount, would exceed
such Lender’s Commitment.
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(h) So
long as no Event of Default has occurred and is continuing, upon notice to the Administrative Agent and each Lender, the Borrower may
request an increase in the Facility Limit at any time following the Fifth Amendment Date, to an amount not to exceed $425,000,000; provided
that each request of an increase shall be in a minimum amount of $5,000,000. At the time of sending such notice, the Borrower (in consultation
with the Administrative Agent and the Lenders) shall specify the time period within which the Lenders and the Administrative Agent are
requested to respond to the Borrower’s request (which shall in no event be less than ten (10) days from the date of delivery
of such notice to the Administrative Agent and the Lenders, except to the extent such time period is waived). Each Lender shall notify
the Borrower and the Servicer within the applicable time period whether or not such Person agrees, in its respective sole discretion,
to the increase to the Facility Limit. Any such Person not responding within such time period shall be deemed to have declined to consent
to an increase in the Facility Limit. If the Facility Limit is increased in accordance with this clause (g), the Administrative
Agent, the Lenders, the Borrower and the Servicer shall determine the effective date with respect to such increase and shall enter into
such documents agreed to by such parties to document such increase and the corresponding increase in the Commitments of each Lender, it
being understood and agreed that the Administrative Agent or any Lender may request any of (x) resolutions approving or consenting
to such Facility Limit increase and authorizing the execution, delivery and performance of any amendment to this Agreement, (y) a
corporate and enforceability opinion of counsel of the Borrower and the Servicer and (z) such other documents, agreements and opinions
reasonably requested by such Lender or the Administrative Agent.
SECTION 2.03. Interest
and Fees.
(a) On
each Settlement Date, the Borrower shall, in accordance with the terms and priorities for payment set forth in Section 4.01,
pay to each Lender, each LC Participant, the LC Bank, the Administrative Agent and the Structuring Agent certain fees (collectively, the
“Fees”) in the amounts set forth in the fee letter agreements from time to time entered into, among the Borrower, the
Lenders, the LC Participants, the LC Bank and/or the Administrative Agent (each such fee letter agreement, as amended, restated, supplemented
or otherwise modified from time to time, collectively being referred to herein as the “Fee Letter”). Commitment Fees
(as defined in the Fee Letter) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender as provided in
Section 2.06.
(b) Each
Loan of each Lender and the Capital thereof (without duplication) shall accrue Interest on each day when such Capital remains outstanding
at the then applicable interest rate for the Borrowing Tranche relating to such Loan. The Borrower shall pay all Interest (including,
for the avoidance of doubt, all Interest accrued on SOFR Rate Loans during an Interest Period regardless of whether the applicable Tranche
Period has ended), (except as otherwise specified in the applicable Fee Letter)
Fees and Breakage Fees accrued during each Interest Period on each Settlement Date in accordance with the terms and priorities
for payment set forth in Section 4.01.
SECTION 2.04. Records
of Loans and Participation Advances. Each Lender shall record in its records, the date and amount of each Loan and Participation Advance
made by such Lender hereunder, the interest rate with respect thereto, the Interest accrued thereon and each repayment and payment thereof.
Subject to Section 13.03(c), such records shall be conclusive and binding absent manifest error. The failure to so record
any such information or any error in so recording any such information shall not, however, limit or otherwise affect the obligations of
the Borrower hereunder or under the other Transaction Documents to repay the Capital of each Lender, together with all Interest accruing
thereon and all other Borrower Obligations.
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SECTION 2.05. Interest
Rate Options. The Borrower shall pay interest in respect of the outstanding unpaid principal amount of the Loans as selected by it
from the applicable Interest Rate Options specified below applicable to the Loans, it being understood that, subject to the provisions
of this Agreement, the Borrower may select different Interest Rate Options and different Tranche Periods to apply simultaneously to the
Loans comprising different Borrowing Tranches and may convert to or renew one or more Interest Rate Options with respect to all or any
portion of the Loans comprising any Borrowing Tranche; provided that there shall not be at any one time outstanding more than five
(5) Borrowing Tranches; provided further that if an Event of Default or Unmatured Event of Default exists and is continuing,
the Borrower may not request, convert to, or renew any Term Rate Loan Option, Daily 1M SOFR Option or Daily Simple SOFR Option for any
Loans and the Majority Lenders may demand that all existing Borrowing Tranches bearing interest under any Term Rate Loan Option, Daily
1M SOFR Option or Daily Simple SOFR Option shall be converted immediately to the Base Rate Option, subject to the obligation of the Borrower
to pay any Breakage Fees in connection with such conversion. If at any time the designated rate applicable to any Loan made by any Lender
exceeds such Lender’s highest lawful rate, the rate of interest on such Lender’s Loan shall be limited to such Lender’s
highest lawful rate. The applicable Base Rate, SOFR Rate, Daily 1M SOFR Option or Daily Simple SOFR shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.
(a) Interest
Rate Options. Subject to the proviso hereto, the Borrower shall have the right to select from the following Interest Rate Options
applicable to the Loans:
(i) Term
Rate Loan Options:
(A) SOFR
Rate Option. In the case of SOFR Rate Loans, a rate per annum (computed on the basis of a year of 360 days and actual days elapsed)
equal to the SOFR Rate as determined for each applicable Tranche Period.
(ii) Daily
Rate Loan Options:
(A) Daily
Simple SOFR Option. In the case of Daily Simple SOFR Loans, a fluctuating rate per annum (computed on the basis of a year of 360 days
and actual days elapsed) equal to Daily Simple SOFR, such interest rate to change automatically from time to time effective as of the
effective date of each change in the SOFR Rate;
(B) Base
Rate Option. In the case of Base Rate Loans, a fluctuating rate per annum (computed on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed) equal to the Base Rate, such interest rate to change automatically from time to time effective
as of the effective date of each change in the Base Rate; or
(C) Daily
1M SOFR Option. In the case of Daily 1M SOFR Loans, a fluctuating rate per annum (computed on the basis of a year of 360 days and
actual days elapsed) equal to Daily 1M SOFR, such interest rate to change automatically from time to time effective as of the effective
date of each change in the SOFR Rate;
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provided, that, until such time
as the Administrative Agent and each Lender otherwise agree in writing or such Loans are converted to Base Rate Loans or a Benchmark Replacement
in accordance with the terms of this Agreement, the Borrower shall be deemed to have made the following selections: (x) with respect
to the principal amount of the Loans up to the Minimum Funding Threshold as of the most recent Settlement Date, the SOFR Rate Option with
a Tranche Period of one monthMonth,
(y) with respect to the principal amount of Loans, if any, held by PNC in excess of its Percentage of the Minimum Funding Threshold,
Daily 1M SOFR Option and (z) with respect to the principal amount of Loans, if any, held by any other Lender in excess of its Percentage
of the Minimum Funding Threshold, the Daily Simple SOFR Option.
(b) Rate
Quotations. The Borrower may call the Administrative Agent on or before the date on which a Loan Request is to be delivered to receive
an indication of the rates then in effect, but it is acknowledged that such projection shall not be binding on the Administrative Agent
or the Lenders nor affect the rate of interest which thereafter is actually in effect when the election is made.
SECTION 2.06. Defaulting
Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following
provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Commitment
Fees (as defined in the Fee Letter) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender.
(b) The
Commitment and Capital of such Defaulting Lender shall not be included in determining whether the Majority Lenders have taken or may take
any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 13.01); provided,
that, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification
requiring the consent of such Lender or each Lender directly affected thereby (if such Lender is directly affected thereby).
(c) In
the event that the Administrative Agent, the Borrower and the Servicer each agrees in writing that a Defaulting Lender has adequately
remedied all matters that caused such Lender to be a Defaulting Lender, then on such date such Lender shall purchase at par such of the
Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans ratably
in accordance its applicable Commitment; provided, that no adjustments shall be made retroactively with respect to fees accrued
or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender, and provided, further, that except to the
extent otherwise agreed by the affected parties, no change hereunder from Defaulting Lender to Lender that is not a Defaulting Lender
will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
SECTION 2.07. Tranche
Periods. At any time when the Borrower shall select, convert to or renew a Term Rate Loan Option, the Borrower shall notify the Administrative
Agent thereof at least three (3) Business Days prior to the effective date of such Term Rate Loan Option by delivering a Loan Request.
The notice shall specify a Tranche Period during which such Interest Rate Option shall apply. Notwithstanding the preceding sentence,
the following provisions shall apply to any selection of, renewal of, or conversion to a Term Rate Loan Option:
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(a) Amount
of Borrowing Tranche. Each Borrowing Tranche of Loans under the Term Rate Loan Option shall be in integral multiples of, and not less
than, the respective amounts specified in Section 2.02(a); and
(b) Renewals.
In the case of the renewal of a Term Rate Loan Option at the end of a Tranche Period, the first day of the new Tranche Period shall be
the last day of the preceding Tranche Period, without duplication in payment of interest for such day.
ARTICLE III
LETTER
OF CREDIT FACILITY
SECTION 3.01. Letters
of Credit.
(a) Subject
to the terms and conditions hereof and the satisfaction of the applicable conditions set forth in Article VI, the LC Bank
shall issue or cause the issuance of Letters of Credit on behalf of the Borrower (and, if applicable, on behalf of, or for the account
of, an Originator or an Affiliate of such Originator in favor of such beneficiaries as such Originator or an Affiliate of such Originator
may elect with the consent of the Borrower); provided further, however, that the LC Bank will not be required to issue or
cause to be issued any Letters of Credit to the extent that after giving effect thereto:
(i) the
Aggregate Capital plus the LC Participation Amount would exceed the Facility Limit at such time;
(ii) the
Aggregate Capital plus the Adjusted LC Participation Amount would exceed the Borrowing Base at such time;
(iii) the
LC Participation Amount would exceed the LC Limit at such time; or
(iv) the
LC Participation Amount would exceed the aggregate of the Commitments of the LC Participants at such time.
(b) Interest
shall accrue on all amounts drawn under Letters of Credit for each day on and after the applicable Drawing Date so long as such drawn
amounts shall have not been reimbursed to the LC Bank pursuant to the terms hereof.
SECTION 3.02. Issuance
of Letters of Credit; Participations.
(a) The
Borrower may request the LC Bank, upon two (2) Business Days’ prior written notice submitted on or before noon (New York City
time), to issue a Letter of Credit by delivering to the Administrative Agent, each Lender and the LC Bank, the LC Bank’s form of
Letter of Credit Application (the “Letter of Credit Application”), substantially in the form of Exhibit D
attached hereto and an LC Request, in each case completed to the satisfaction of the Administrative Agent and the LC Bank; and such other
certificates, documents and other papers and information as the Administrative Agent or the LC Bank may reasonably request.
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(b) Each
Letter of Credit shall, among other things, (i) provide for the payment of sight drafts or other written demands for payment when
presented for honor thereunder in accordance with the terms thereof and when accompanied by the documents described therein and (ii) have
an expiry date not later than sixty (60) months after such Letter of Credit’s date of issuance, extension or renewal, as the case
may be, and in no event later than twelve (12) months after the Scheduled Termination Date. The terms of each Letter of Credit may include
customary “evergreen” provisions providing that such Letter of Credit’s expiry date shall automatically be extended
for additional periods not to exceed sixty (60) months unless, not less than thirty (30) days (or such longer period as may be specified
in such Letter of Credit) (the “Notice Date”) prior to the applicable expiry date, the LC Bank delivers written notice
to the beneficiary thereof declining such extension; provided, however, that if (x) any such extension would cause
the expiry date of such Letter of Credit to occur after the date that is twelve (12) months after the Scheduled Termination Date or (y) the
LC Bank determines that any condition precedent (including, without limitation, those set forth in Sections 3.01 and Article VI)
to issuing such Letter of Credit hereunder are not satisfied (other than any such condition requiring the Borrower to submit an LC Request
or Letter of Credit Application in respect thereof), then the LC Bank, in the case of clause (x) above, may (or, at the written
direction of any LC Participant, shall) or, in the case of clause (y) above, shall, use reasonable efforts in accordance with
(and to the extent permitted by) the terms of such Letter of Credit to prevent the extension of such expiry date (including notifying
the Borrower and the beneficiary of such Letter of Credit in writing prior to the Notice Date that such expiry date will not be so extended).
Each Letter of Credit shall be subject either to the Uniform Customs and Practice for Documentary Credits (2007 Revision), International
Chamber of Commerce Publication No. 600, and any amendments or revisions thereof adhered to by the LC Bank or the International Standby
Practices (ISP98-International Chamber of Commerce Publication Number 590), and any amendments or revisions thereof adhered to by the
LC Bank, as determined by the LC Bank.
(c) Immediately
upon the issuance by the LC Bank of any Letter of Credit (or any amendment to a Letter of Credit increasing the amount thereof), the LC
Bank shall be deemed to have sold and transferred to each LC Participant, and each LC Participant shall be deemed irrevocably and unconditionally
to have purchased and received from the LC Bank, without recourse or warranty, an undivided interest and participation, to the extent
of such LC Participant’s Pro Rata Share, in such Letter of Credit, each drawing made thereunder and the obligations of the Borrower
hereunder with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Commitments or Pro Rata
Shares of the LC Participants pursuant to this Agreement, it is hereby agreed that, with respect to all outstanding Letters of Credit
and unreimbursed drawings thereunder, there shall be an automatic adjustment to the participations pursuant to this clause (c) to
reflect the new Pro Rata Shares of the assignor and assignee LC Participant or of all LC Participants with Commitments, as the case may
be. In the event that the LC Bank makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount
in full to the LC Bank pursuant to Section 3.04(a), each LC Participant shall be obligated to make Participation Advances
with respect to such Letter of Credit in accordance with Section 3.04(b).
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SECTION 3.03. Requirements
For Issuance of Letters of Credit. The Borrower shall authorize and direct the LC Bank to name the Borrower, an Originator or an Affiliate
of an Originator as the “Applicant” or “Account Party” of each Letter of Credit.
SECTION 3.04. Disbursements,
Reimbursement.
(a) In
the event of any request for a drawing under a Letter of Credit by the beneficiary or transferee thereof, the LC Bank will promptly notify
the Administrative Agent and the Borrower of such request. The Borrower shall reimburse (such obligation to reimburse the LC Bank shall
sometimes be referred to as a “Reimbursement Obligation”) the LC Bank prior to 5:00 p.m. (New York City time),
on each date that an amount is paid by the LC Bank under any Letter of Credit (each such date, a “Drawing Date”) in
an amount equal to the amount so paid by the LC Bank. Such Reimbursement Obligation shall be satisfied by the Borrower (i) first,
by the remittance by the Administrative Agent to the LC Bank of any available amounts then on deposit in the LC Collateral Account and
(ii) second, by the remittance by or on behalf of the Borrower to the LC Bank of any other funds of the Borrower then available for
disbursement. In the event the Borrower fails to reimburse the LC Bank for the full amount of any drawing under any Letter of Credit by
4:00 p.m. (New York City time) on the Drawing Date (including because the conditions precedent to a Loan requested by the Borrower
pursuant to Section 2.01 shall not have been satisfied), the LC Bank will promptly notify each LC Participant thereof. Any
notice given by the LC Bank pursuant to this Section may be oral if promptly confirmed in writing; provided that the lack
of such a prompt written confirmation shall not affect the conclusiveness or binding effect of such oral notice.
(b) Each
LC Participant shall upon any notice pursuant to clause (a) above make available to the LC Bank an amount in immediately available
funds equal to its Pro Rata Share of the amount of the drawing (a “Participation Advance”), whereupon the LC Participants
shall each be deemed to have made a Loan to the Borrower in that amount. If any LC Participant so notified fails to make available to
the LC Bank the amount of such LC Participant’s Pro Rata Share of such amount by 4:00 p.m. (New York City time) on the Drawing
Date, then interest shall accrue on such LC Participant’s obligation to make such payment, from the Drawing Date to the date on
which such LC Participant makes such payment (i) at a rate per annum equal to the Overnight Bank Funding Rate during the first three
days following the Drawing Date and (ii) at a rate per annum equal to the Base Rate on and after the fourth day following the Drawing
Date. The LC Bank will promptly give notice to each LC Participant of the occurrence of the Drawing Date, but failure of the LC Bank to
give any such notice on the Drawing Date or in sufficient time to enable any LC Participant to effect such payment on such date shall
not relieve such LC Participant from its obligation under this clause (b). Each LC Participant’s Commitment shall continue
until the last to occur of any of the following events: (A) the LC Bank ceases to be obligated to issue or cause to be issued Letters
of Credit hereunder, (B) no Letter of Credit issued hereunder remains outstanding and uncancelled or (C) all Credit Parties
have been fully reimbursed for all payments made under or relating to Letters of Credit.
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SECTION 3.05. Repayment
of Participation Advances.
(a) Upon
(and only upon) receipt by the LC Bank for its account of immediately available funds from or for the account of the Borrower (i) in
reimbursement of any payment made by the LC Bank under a Letter of Credit with respect to which any LC Participant has made a Participation
Advance to the LC Bank or (ii) in payment of Interest on the Loans made or deemed to have been made in connection with any such draw,
the LC Bank will pay to each LC Participant, ratably (based on the outstanding drawn amounts funded by each such LC Participant in respect
of such Letter of Credit), in the same funds as those received by the LC Bank; it being understood, that the LC Bank shall retain
a ratable amount of such funds that were not the subject of any payment in respect of such Letter of Credit by any LC Participant.
(b) If
the LC Bank is required at any time to return to the Borrower, or to a trustee, receiver, liquidator, custodian, or any official in any
Insolvency Proceeding, any portion of the payments made by the Borrower to the LC Bank pursuant to this Agreement in reimbursement of
a payment made under a Letter of Credit or interest or fee thereon, each LC Participant shall, on demand of the LC Bank, forthwith return
to the LC Bank the amount of its Pro Rata Share of any amounts so returned by the LC Bank plus interest at the Overnight Bank Funding
Rate, from the date the payment was first made to such LC Participant through, but not including, the date the payment is returned by
such LC Participant.
(c) If
any Letters of Credit are outstanding and undrawn on the Termination Date, the LC Collateral Account shall be funded from Collections
(or, in the Borrower’s sole discretion, by other funds available to the Borrower) in an amount equal to the aggregate undrawn face
amount of such Letters of Credit plus all related fees to accrue through the stated expiration dates thereof, including any customary
presentation, amendment and other processing fees, and other standard costs and charges, of the LC Bank relating to letters of credit
(such fees to accrue, as reasonably estimated by the LC Bank, the “LC Fee Expectation”).
SECTION 3.06. Documentation;
Documentary and Processing Charges. The Borrower agrees to be bound by the terms of the Letter of Credit Application and by the LC
Bank’s interpretations of any Letter of Credit issued for the Borrower and by the LC Bank’s written regulations and customary
practices relating to letters of credit, though the LC Bank’s interpretation of such regulations and practices may be different
from the Borrower’s own. In the event of a conflict between the Letter of Credit Application and this Agreement, this Agreement
shall govern. The LC Bank shall not be liable for any error, negligence and/or mistakes, whether of omission or commission, in following
the Borrower’s instructions or those contained in the Letters of Credit or any modifications, amendments or supplements thereto.
In addition to any other fees or expenses owing under the Fee Letter or any other Transaction Document or otherwise pursuant to any Letter
of Credit Application, the Borrower shall pay to the LC Bank for its own account any customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the LC Bank relating to letters of credit as from time to time in effect. Such
customary fees shall be due and payable upon demand and shall be nonrefundable.
SECTION 3.07. Determination
to Honor Drawing Request. In determining whether to honor any request for drawing under any Letter of Credit by the beneficiary thereof,
the LC Bank shall be responsible only to determine that the documents and certificates required to be delivered under such Letter of Credit
have been delivered and that they comply on their face with the requirements of such Letter of Credit and that any other drawing condition
appearing on the face of such Letter of Credit has been satisfied in the manner so set forth.
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SECTION 3.08. Nature
of Participation and Reimbursement Obligations. Each LC Participant’s obligation in accordance with this Agreement to make Participation
Advances as a result of a drawing under a Letter of Credit, and the obligations of the Borrower to reimburse the LC Bank upon a draw under
a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement and under all circumstances, including the following circumstances:
(i) any
set-off, counterclaim, recoupment, defense or other right which such LC Participant may have against the LC Bank, the other Credit Parties,
the Borrower, the Servicer, an Originator, the Performance Guarantor or any other Person for any reason whatsoever;
(ii) the
failure of the Borrower or any other Person to comply with the conditions set forth in this Agreement for the making of a purchase, reinvestments,
requests for Letters of Credit or otherwise, it being acknowledged that such conditions are not required for the making of Participation
Advances hereunder;
(iii) any
lack of validity or enforceability of any Letter of Credit or any set-off, counterclaim, recoupment, defense or other right which the
Borrower, the Performance Guarantor, the Servicer, an Originator or any Affiliate thereof on behalf of which a Letter of Credit has been
issued may have against the LC Bank, or any other Credit Party or any other Person for any reason whatsoever;
(iv) any
claim of breach of warranty that might be made by the Borrower, an Originator or any Affiliate thereof, the LC Bank, or any LC Participant
against the beneficiary of a Letter of Credit, or the existence of any claim, set-off, defense or other right which the Borrower, the
Servicer, the LC Bank or any LC Participant may have at any time against a beneficiary, any successor beneficiary or any transferee of
any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the LC Bank, any other Credit
Party or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction
(including any underlying transaction between the Borrower or any Affiliates of the Borrower and the beneficiary for which any Letter
of Credit was procured);
(v) the
lack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft,
demand, instrument, certificate or other document presented under any Letter of Credit, or any such draft, demand, instrument, certificate
or other document proving to be forged, fraudulent, invalid, defective or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect, even if the Administrative Agent or the LC Bank has been notified thereof;
(vi) payment
by the LC Bank under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply
with the terms of such Letter of Credit;
(vii) the
solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction
or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of
any property or services relating to a Letter of Credit;
50
(viii) any
failure by the LC Bank or any of the LC Bank’s Affiliates to issue any Letter of Credit in the form requested by the Borrower;
(ix) any
Material Adverse Effect or Borrower Material Adverse Effect;
(x) any
breach of this Agreement or any other Transaction Document by any party thereto;
(xi) the
occurrence or continuance of an Insolvency Proceeding with respect to the Borrower, the Performance Guarantor, any Originator or any Affiliate
thereof;
(xii) the
fact that an Event of Default or an Unmatured Event of Default shall have occurred and be continuing;
(xiii) the
fact that this Agreement or the obligations of the Borrower or the Servicer hereunder shall have been terminated; and
(xiv) any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
SECTION 3.09. Indemnity.
In addition to other amounts payable hereunder, the Borrower hereby agrees to protect, indemnify, pay and save harmless the Administrative
Agent, the LC Bank, each LC Participant, each other Credit Party and each of the LC Bank’s Affiliates that have issued a Letter
of Credit from and against any and all claims, demands, liabilities, damages, taxes, penalties, interest, judgments, losses, costs, charges
and expenses (including Attorney Costs) which the Administrative Agent, the LC Bank, any LC Participant, any other Credit Party or any
of their respective Affiliates may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit,
except to the extent resulting from (a) the gross negligence or willful misconduct of the party to be indemnified as determined by
a final non-appealable judgment of a court of competent jurisdiction or (b) the wrongful dishonor by the LC Bank or any of its Affiliates
of a proper demand for payment made under any Letter of Credit, except if such dishonor resulted from any act or omission, whether rightful
or wrongful, of any present or future de jure or de facto Governmental Authority (all such acts or omissions herein called “Governmental
Acts”). Under no circumstances shall the Servicer (or any Affiliate thereof (other than the Borrower)) have any reimbursement
or recourse obligations in respect of any Letter of Credit.
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SECTION 3.10. Liability
for Acts and Omissions. As between the Borrower, on the one hand, and the Administrative Agent, the LC Bank, the LC Participants,
and the other Credit Parties, on the other, the Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit
by, the respective beneficiaries of such Letter of Credit. In furtherance and not in limitation of the foregoing, none of the Administrative
Agent, the LC Bank, the LC Participants, or any other Credit Party shall be responsible for any of the following, including any losses
or damages to the Borrower, any of its Affiliates or any other Person or property related therefrom: (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for an issuance of any
such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged
(even if the LC Bank, any LC Participant or any other Credit Party shall have been notified thereof); (ii) the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder
or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) the failure of the beneficiary
of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions
required in order to draw upon such Letter of Credit or any other claim of the Borrower against any beneficiary of such Letter of Credit,
or any such transferee, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit or any such transferee;
(iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, electronic mail, cable, telegraph,
telex, facsimile or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss
or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the
proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such
Letter of Credit; or (viii) any consequences arising from causes beyond the control of the Administrative Agent, the LC Bank, the
LC Participants, and the other Credit Parties, including any Governmental Acts, and none of the above shall affect or impair, or prevent
the vesting of, any of the LC Bank’s rights or powers hereunder. In no event shall the Administrative Agent, the LC Bank, the LC
Participants, or the other Credit Parties or their respective Affiliates, be liable to the Borrower or any other Person for any indirect,
consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation Attorney Costs), or for any
damages resulting from any change in the value of any property relating to a Letter of Credit.
Without limiting the generality
of the foregoing, the Administrative Agent, the LC Bank, the LC Participants, and the other Credit Parties and each of their respective
Affiliates (i) may rely on any written communication believed in good faith by such Person to have been authorized or given by or
on behalf of the applicant for a Letter of Credit; (ii) may honor any presentation if the documents presented appear on their face
to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under
a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise,
and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest
paid by the LC Bank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation
or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately),
and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter
of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place
where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrative Agent, the LC Bank, the
LC Participants, or the other Credit Parties or their respective Affiliates, in any way related to any order issued at the applicant’s
request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”)
and may honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or
other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
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In furtherance and extension
and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with
any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without
gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not
put the LC Bank under any resulting liability to the Borrower, any Credit Party or any other Person.
SECTION 3.11. LC Collateral
Account. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over the
LC Collateral Account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option
and sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest
or profits, if any, on such investments shall accumulate in the LC Collateral Account. Moneys in the LC Collateral Account shall be applied
by the Administrative Agent to reimburse the LC Bank for each drawing under a Letter of Credit and for repayment of amounts owing by the
Borrower hereunder and under each of the other Transaction Documents to each of the other Secured Parties. Amounts, if any, on deposit
in the LC Collateral Account on the Final Payout Date shall be promptly remitted by the Administrative Agent to the Borrower.
ARTICLE IV
SETTLEMENT
PROCEDURES AND PAYMENT PROVISIONS
SECTION 4.01. Settlement
Procedures.
(a) The
Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrative Agent, segregate
in a separate account designated by the Administrative Agent, which shall be an account maintained and controlled by the Administrative
Agent unless the Administrative Agent otherwise instructs in its sole discretion), for application in accordance with the priority of
payments set forth below, all Collections on Pool Receivables that are received by the Servicer or the Borrower or received in any Lock-Box
or Collection Account; provided, however, that so long as each of the conditions precedent set forth in Section 6.03
are satisfied on such date, the Servicer may release to the Borrower from such Collections the amount (if any) necessary to pay (i) the
purchase price for Receivables purchased by the Borrower on such date in accordance with the terms of the Purchase and Sale Agreement
or (ii) amounts owing by the Borrower to the Originators under the Subordinated Notes (each such release, a “Release”).
On each Settlement Date, the Servicer (or, following its assumption of control of the Collection Accounts, the Administrative Agent) shall,
distribute such Collections in the following order of priority:
(i) first,
to the Servicer for the payment of the accrued Servicing Fees payable for the immediately precedingthrough
the end of the most recently-ended Interest Period (plus, if applicable, the amount of Servicing Fees payable for any prior Interest
Period to the extent such amount has not been distributed to the Servicer);
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(ii) second,
to the Administrative Agent for further distribution to each Lender
and other Credit Party (ratably, based on the amount then due and owing), all accrued and unpaid Interest, Fees and Breakage Fees due
to such Lender and other Credit Party for the immediately precedingthrough
the end of the most recently-ended Interest Period (including any additional amounts or indemnified amounts payable under Sections
5.03 and 12.01 in respect of such payments), plus, if applicable, the amount of any such Interest, Fees and Breakage Fees (including
any additional amounts or indemnified amounts payable under Sections 5.03 and 12.01 in respect of such payments) payable
for any priorthrough the
end of the most recently-ended Interest Period or otherwise due and
payable pursuant to the applicable Fee Letter to the extent such amount has not been distributed to such Lender or Credit Party;
(iii) third,
as set forth in clause (x) or (y) below, as applicable:
(x) prior
to the occurrence of the Termination Date, to the extent that a Borrowing Base Deficit exists on such date: (I) first, to
the Administrative Agent for further distribution to the Lenders (ratably,
based on the aggregate outstanding Capital of each Lender at such time) for the payment of a portion of the outstanding Aggregate Capital
at such time, in an aggregate amount equal to (1) the amount necessary to reduce the Borrowing Base Deficit to zero ($0) Dollars
or (2) at the election of the Borrower, such greater amount in accordance with Section 2.02(e) and (II) second,
to the LC Collateral Account, in reduction of the Adjusted LC Participation Amount, in an amount equal to the amount necessary (after
giving effect to clause (I) above) to reduce the Borrowing Base Deficit to zero ($0); or
(y) on
and after the occurrence of the Termination Date: (I) first, to each Lenderthe
Administrative Agent for further distribution to the Lenders (ratably, based on the aggregate outstanding Capital of each Lender
at such time) for the payment in full of the aggregate outstanding Capital of such Lender at such time and (II) second, to
the LC Collateral Account (A) the amount necessary to reduce the Adjusted LC Participation Amount to zero ($0) and (B) an amount
equal to the LC Fee Expectation at such time;
(iv) fourth,
to the Administrative Agent for further distribution to the Administrative
Agent for further distribution to the Credit Parties, the Affected Persons and the Borrower Indemnified Parties (ratably, based
on the amount due and owing at such time), for the payment of all other Borrower Obligations then due and owing by the Borrower to the
Credit Parties, the Affected Persons and the Borrower Indemnified Parties; and
(v) fifth,
the balance, if any, to be paid to the Borrower for its own account.
(b) Notwithstanding
anything to the contrary set forth in this Section 4.01, the Administrative Agent shall have no obligation to distribute or
pay any amount under this Section 4.01 except to the extent actually received by the Administrative Agent.
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(c) Notwithstanding
anything contained herein to the contrary, if and to the extent that for any reason any payment by or on behalf of any Person of any amount
owed hereunder is rescinded or must otherwise be restored by the Administrative Agent, any Credit Party, any Affected Person or any Borrower
Indemnified Party, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, such amount shall be deemed not
to have been so received but rather to have been retained by the Borrower and, accordingly, the Administrative Agent, such Credit Party,
such Affected Person or such Borrower Indemnified Party, as the case may be, shall have a claim against the Borrower for such amount.
(d) For
the purposes of this Section 4.01:
(i) if
on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected, returned, repossessed
or foreclosed goods or services, or any revision, cancellation, allowance, rebate, credit memo, discount or other adjustment made by the
Borrower, any Originator, the Servicer or any Affiliate of the Servicer, or any setoff, counterclaim or dispute between the Borrower or
any Affiliate of the Borrower, an Originator or any Affiliate of an Originator, or the Servicer or any Affiliate of the Servicer, and
an Obligor, the Borrower shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction
or adjustment and, if an Event of Default or Unmatured Event of Default exists or if the Purchase and Sale Termination Date has occurred
and, in each case, if an Originator has made a related payment in cash to the Borrower pursuant to Section 3.2(c) of the Purchase
and Sale Agreement, shall immediately pay (or cause the applicable Originator to pay pursuant to Section 3.3 of the Purchase and
Sale Agreement) any and all such amounts in respect thereof to a Collection Account (or as otherwise directed by the Administrative Agent
at such time) for the benefit of the Credit Parties for application pursuant to Section 4.01(a); provided that if a
Receivable’s “Purchase Price” has been reduced by the full Outstanding Balance thereof pursuant to Section 3.3(a) of
the Purchase and Sale Agreement and such reduction has been made in accordance with Section 3.3(c) of the Purchase and Sale
Agreement, then the Borrower shall deliver to the applicable Originator any payments thereafter received by the Borrower on account of
such Receivable’s Outstanding Balance in accordance with the Borrower’s obligations under the proviso to Section 3.3(a) of
the Purchase and Sale Agreement;
(ii) if
on any day any of the representations or warranties in Section 7.01 is not true with respect to any Pool Receivable, the Borrower
shall be deemed to have received on such day a Collection of such Pool Receivable in full and, if an Event of Default or Unmatured Event
of Default exists or if the Purchase and Sale Termination Date shall have occurred and, in each case, if an Originator has made a related
payment in cash to the Borrower pursuant to Section 3.2(c) of the Purchase and Sale Agreement, shall immediately pay the amount
of such deemed Collection to a Collection Account (or as otherwise directed by the Administrative Agent at such time) for the benefit
of the Credit Parties for application pursuant to Section 4.01(a) (Collections deemed to have been received pursuant
to Section 4.01(d) are hereinafter sometimes referred to as “Deemed Collections”);
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(iii) except
as provided in clauses (i) or (ii) above or otherwise required by Applicable Law or the relevant Contract, all
Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in the order of the age of
such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific
Receivables; and
(iv) if
and to the extent the Administrative Agent, any Credit Party, any Affected Person or any Borrower Indemnified Party shall be required
for any reason to pay over to an Obligor (or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount
received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by
the Borrower and, accordingly, such Person shall have a claim against the Borrower for such amount, payable when and to the extent that
any distribution from or on behalf of such Obligor is made in respect thereof.
SECTION 4.02. Payments
and Computations, Etc. (a) All amounts to be paid by the Borrower or the Servicer to the Administrative Agent, any Credit Party,
any Affected Person or any Borrower Indemnified Party hereunder shall be paid no later than 12:00
noon (New York City time) on the day when due in same day funds to the applicable Lender’s
AccountAdministrative Agent for the account of such Credit
Party at the account specified by the Administrative Agent for such purpose.
(b) Each
of the Borrower and the Servicer shall, to the extent permitted by Applicable Law, pay interest on any amount other than Capital (which
Capital shall accrue Interest) not paid or deposited by it when due hereunder, at an interest rate per annum equal to 2.00% per annum
above the Base Rate, payable on demand.
(c) All
computations of interest under subsection (b) above and all computations of Interest, Fees and other amounts hereunder shall
be made on the basis of a year of 360 days (or, in the case of amounts determined by reference to the Base Rate, 365 or 366 days, as applicable)
for the actual number of days (including the first but excluding the last day) elapsed. Whenever any payment or deposit to be made hereunder
shall be due on a day other than a Business Day, such payment or deposit shall be made on the next succeeding Business Day and such extension
of time shall be included in the computation of such payment or deposit.
ARTICLE V
INCREASED
COSTS; FUNDING LOSSES; TAXES; ILLEGALITY AND SECURITY INTEREST
SECTION 5.01. Increased
Costs.
(a) Increased
Costs Generally. If any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit, liquidity, 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 Affected Person;
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(ii) subject any Affected
Person to any Taxes (except to the extent such Taxes are Indemnified Taxes or Excluded Taxes) on its loans, loan principal, letters of
credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any
Affected Person any other condition, cost or expense (other than Taxes) (A) affecting the Collateral, this Agreement, any other
Transaction Document, any Loan or any Letter of Credit or participation therein or (B) affecting its obligations or rights to make
Loans or issue or participate in Letters of Credit;
and the result of any of the foregoing shall be
to increase the cost to such Affected Person of (A) acting as the Administrative Agent or a Lender hereunder with respect to the
transactions contemplated hereby, (B) funding or maintaining any Loan or issuing or participating in, any Letter of Credit (or interests
therein) or (C) maintaining its obligation to fund or maintain any Loan or issuing or participating in, any Letter of Credit, or
to reduce the amount of any sum received or receivable by such Affected Person hereunder, then, upon request of such Affected Person (or
its related Lender), the Borrower shall pay to such Affected Person such additional amount or amounts as will compensate such Affected
Person for such additional costs incurred or reduction suffered.
(b) Capital and Liquidity
Requirements. If any Affected Person determines that any Change in Law affecting such Affected Person or any lending office of such
Affected Person or such Affected Person’s holding company, if any, regarding capital or liquidity requirements, has or would have
the effect of (x) increasing the amount of capital required to be maintained by such Affected Person or Affected Person’s
holding company, if any, (y) reducing the rate of return on such Affected Person’s capital or on the capital of such Affected
Person’s holding company, if any, or (z) causing an internal capital or liquidity charge or other imputed cost to be assessed
upon such Affected Person or Affected Person’s holding company, if any, in each case, as a consequence of (A) this Agreement
or any other Transaction Document, (B) the commitments of such Affected Person hereunder or under any other Transaction Document,
(C) the Loans, Letters of Credit or participations in Letters of Credit, made or issued by such Affected Person or (D) any
Capital, to a level below that which such Affected Person or such Affected Person’s holding company could have achieved but for
such Change in Law (taking into consideration such Affected Person’s policies and the policies of such Affected Person’s
holding company with respect to capital adequacy and liquidity), then from time to time, upon request of such Affected Person (or its
related Lender), the Borrower will pay to such Affected Person such additional amount or amounts as will compensate such Affected Person
or such Affected Person’s holding company for any such increase, reduction or charge.
(c) Certificates
for Reimbursement. A certificate of an Affected Person (or its related Lender on its behalf) setting forth the amount or amounts necessary
to compensate such Affected Person or its holding company, as the case may be, as specified in clause (a) or (b) of
this Section and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall, subject to the priorities
of payment set forth in Section 4.01, pay such Affected Person the amount shown as due on any such certificate on the first
Settlement Date occurring after the Borrower’s receipt of such certificate.
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(d) Delay
in Requests. Failure or delay on the part of any Affected Person to demand compensation pursuant to this Section shall not constitute
a waiver of such Affected Person’s right to demand such compensation; provided that the Borrower shall not be required to
compensate an Affected Person pursuant to this Section for any increased costs incurred or reductions suffered more than nine (9) months
prior to the date that such Affected Person notifies the Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Affected Person’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased
costs or reductions is retroactive, then the nine (9) month period referred to above shall be extended to include the period of retroactive
effect thereof).
SECTION 5.02. Funding
Losses.
(a) The
Borrower will pay each Lender all Breakage Fees.
(b) A
certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender, as specified in clause (a) above
and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall, subject to the priorities of payment set
forth in Section 4.01, pay such Lender the amount shown as due on any such certificate on the first Settlement Date occurring
after the Borrower’s receipt of such certificate.
SECTION 5.03. Taxes.
(a) Payments
Free of Taxes. Any and all payments by or on account of any obligation of the Borrower under any Transaction Document shall be made
without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good
faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment to an Affected
Person, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount
deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law, and, if such Tax is an Indemnified Tax,
then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including
such deductions and withholdings applicable to additional sums payable under this Section), the applicable Affected Person receives an
amount equal to the sum it would have received had no such deduction or withholding been made.
(b) Payment
of Other Taxes by the Borrower. 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.
(c) Indemnification
by the Borrower. The Borrower shall indemnify each Affected Person, within ten days after demand therefor, for the full amount of
any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable
or paid by such Affected Person or required to be withheld or deducted from a payment to such Affected Person and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified 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 the Borrower
by an Affected Person (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of an Affected
Person, shall be conclusive absent manifest error.
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(d) Indemnification
by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten days after demand therefor, for (i) any
Indemnified Taxes attributable to such Lender or any of its Affiliates that are Affected Persons (but only to the extent that the Borrower
has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting any obligation of the Borrower to
do so), (ii) any Taxes attributable to the failure of such Lender or any of its Affiliates that are Affected Persons to comply with
Section 13.03(e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable
to such Lender or any of its Affiliates that are Affected Persons, in each case, that are payable or paid by the Administrative Agent
in connection with any Transaction 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 or any of its Affiliates that are Affected
Persons under any Transaction Document or otherwise payable by the Administrative Agent to such Lender or any of its Affiliates that are
Affected Persons from any other source against any amount due to the Administrative Agent under this clause (d).
(e) Evidence
of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 5.03,
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 of such payment reasonably satisfactory to the
Administrative Agent.
(f) Status
of Affected Persons. (i) Any Affected Person that is entitled to an exemption from or reduction of withholding Tax with respect
to payments made under any Transaction Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably
requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the
Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.
In addition, any Affected Person, 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 Affected Person is subject to backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such
documentation set forth in Sections 5.03(f)(ii)(A), 5.03(f)(ii)(B) and 5.03(g)) shall not be required if, in
the Affected Person’s reasonable judgment, such completion, execution or submission would subject such Affected Person to any material
unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Affected Person.
(ii) Without
limiting the generality of the foregoing:
(A) a
Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes
a party to this Agreement and from time to time upon the reasonable request of the Borrower or the Administrative Agent, executed originals
of Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
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(B) any
Lender that is not a U.S. Person shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative
Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Lender becomes a party to
this Agreement and from time to time upon the reasonable request of the Borrower or the Administrative Agent, whichever of the following
is applicable:
(1) in
the case of such a Lender claiming the benefits of an income tax treaty to which the United States is a party, (x) with respect to
payments of interest under any Transaction Document, executed originals of Internal Revenue Service Form W-8BEN or Internal Revenue
Service Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest”
article of such tax treaty and (y) with respect to any other applicable payments under any Transaction Document, Internal Revenue
Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal
withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed
originals of Internal Revenue Service Form W-8ECI;
(3) in
the case of such a Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a
certificate in substantially the form of Exhibit J hereto to the effect that such Lender is not a “bank” within
the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of
Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service Form W-8BEN
or Internal Revenue Service Form W-8BEN-E; or
(4) to
the extent such Lender is not the beneficial owner, executed originals of Internal Revenue Service Form W-8IMY, accompanied by Internal
Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN, Internal Revenue Service Form W-8BEN-E a U.S.
Tax Compliance Certificate, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner,
as applicable; provided that, if such Lender is a partnership and one or more direct or indirect partners of such Lender are claiming
the portfolio interest exemption, such Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect
partner; and
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(C) any
Lender that is not a U.S. Person shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative
Agent (in such number of copies as shall be requested by the recipient), on or prior to the date on which such Lender becomes a party
to this Agreement and from time to time upon the reasonable request of the Borrower or the Administrative Agent, executed originals of
any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly
completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative
Agent to determine the withholding or deduction required to be made.
(g) Documentation
Required by FATCA. If a payment made to a Credit Party under any Transaction Document would be subject to U.S. federal withholding
Tax imposed by FATCA if such Credit Party were to fail to comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Credit Party shall deliver to the Borrower and
the Administrative Agent at the time or times prescribed by Applicable 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 and to determine that such Credit Party has complied
with such Affected Person’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely
for purposes of this clause (g), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(h) Treatment
of Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as
to which it has been indemnified pursuant to this Section 5.03 (including by the payment of additional amounts pursuant to
this Section 5.03), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity
payments made under this Section 5.03 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses
(including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party
the amount paid over pursuant to this clause (h) (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) in the event such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything
to the contrary in this clause (h), in no event will the indemnified party be required to pay any amount to an indemnifying party
pursuant to this clause (h) the payment of which would place the indemnified party in a less favorable net after Tax position
than the indemnified party 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 any indemnified party to make available its Tax returns (or other information relating to
its Taxes that it deems confidential) to the indemnifying party or any other Person.
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(i) Survival.
Each party’s obligations under this Section 5.03 shall survive the resignation or replacement of the Administrative
Agent or any assignment of rights by, or the replacement of, a Credit Party, the termination of the Commitments and the repayment, satisfaction
or discharge of all the Borrower Obligations and the Servicer’s obligations hereunder.
(j) Updates.
Each Credit Party agrees that if any form or certification it previously delivered pursuant to this Section 5.03 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 inability to do so.
SECTION 5.04. Rate
Unascertainable; Increased Costs; Illegality; Benchmark Replacement Setting.
(a) Unascertainable;
Increased Costs. If, on or prior to the first day of a Tranche Period:
(i) the
Administrative Agent shall have determined (which determination shall be conclusive and binding absent manifest error) that (x) the
SOFR Rate, Daily 1M SOFR or Daily Simple SOFR cannot be determined because it is not available or published on a current basis or (y) a
fundamental change has occurred with respect to such rate (including, without limitation, changes in national or international financial,
political or economic conditions),
(ii) the
Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the SOFR Rate, Daily
1M SOFR or Daily Simple SOFR cannot be determined pursuant to the definition thereof, or
(iii) on
or prior to the first day of any Tranche Period, any Lender determines that for any reason in connection with any request for a Term Rate
Loan or a conversion thereto or a continuation thereof that the Term Rate Loan Option for any requested Tranche Period with respect to
a proposed Term Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding, establishing or maintaining such
Loan and, in each case, any Lender has provided notice of such determination to the Administrative Agent,
then the Administrative Agent shall have the rights specified
in Section 5.04(c).
(b) Illegality.
If at any time any Lender shall have determined, or any Governmental Authority shall have asserted, that the making, maintenance or funding
of any Loan to which any Interest Rate Option applies, or the determination or charging of interest rates based upon any Interest Rate
Option has been made impracticable or unlawful, by compliance by such Lender in good faith with any law or any interpretation or application
thereof by any Governmental Authority or with any request or directive of any such Governmental Authority (whether or not having the force
of law), then the Administrative Agent shall have the rights specified in Section 5.04(c).
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(c) Administrative
Agent’s and Lender’s Rights. In the case of any event specified in Section 5.04(a) above, the Administrative
Agent shall promptly so notify the Lenders and the Borrower thereof, and in the case of an event specified in Section 5.04(b) above,
such Lender shall promptly so notify the Administrative Agent and endorse a certificate to such notice as to the specific circumstances
of such notice, and the Administrative Agent shall promptly send copies of such notice and certificate to the other Lenders and the Borrower.
Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the obligation of
(i) the Lenders, in the case of such notice given by the Administrative Agent, or (ii) such Lender, in the case of such notice
given by such Lender, to allow the Borrower to select, convert to or renew a Loan under the affected Interest Rate Option shall be suspended
(to the extent of the affected Interest Rate Option or Tranche Periods) until the Administrative Agent shall have later notified the Borrower,
or such Lender shall have later notified the Administrative Agent, of the Administrative Agent’s or such Lender’s, as the
case may be, determination that the circumstances giving rise to such previous determination no longer exist. If at any time the Administrative
Agent makes a determination under Section 5.04(a) and the Borrower has previously notified the Administrative Agent of
its selection of, conversion to or renewal of an affected Interest Rate Option and such Interest Rate Option has not yet gone into effect,
such notification shall be deemed to provide for selection of, conversion to or renewal of the Base Rate Option otherwise available with
respect to such Loans. If any Lender notifies the Administrative Agent of a determination under Section 5.04(b), the Borrower
shall, subject to the Borrower’s obligation to pay any Breakage Fees, as to any Loan of the Lender to which an affected Interest
Rate Option applies, on the date specified in such notice either convert such Loan to the Base Rate Option otherwise available with respect
to such Loan or prepay such Loan in accordance with Section 2.02(e). Absent due notice from the Borrower of conversion or
prepayment, such Loan shall automatically be converted to the Base Rate Option otherwise available with respect to such Loan upon such
specified date.
(d) Benchmark
Replacement Setting.
(i) Benchmark
Replacement. Notwithstanding anything to the contrary herein or in any other Transaction Document, if a Benchmark Transition Event
and its related Benchmark Replacement Date have occurred prior to any setting of the then-current Benchmark, then (x) if a Benchmark
Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such
Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction
Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent
of any other party to, this Agreement or any other Transaction Document and (y) if a Benchmark Replacement is determined in accordance
with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark
Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of any Benchmark setting
at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is
provided to the Lenders and the Borrower without any amendment to, or further action or consent of any other party to, this Agreement
or any other Transaction Document so long as the Administrative Agent has not received, by such time, written notice of objection to such
Benchmark Replacement from Lenders comprising the Majority Lenders.
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(ii) No
swap agreement shall be deemed to be a “Transaction Document” for purposes of this Section.
(iii) Benchmark
Replacement Conforming Changes. In connection with the implementation and administration of a Benchmark Replacement, the Administrative
Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any
other Transaction Document, any amendments implementing such Conforming Changes will become effective without any further action or consent
of any other party to this Agreement or any other Transaction Document.
(iv) Notices;
Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (A) any
occurrence of a Benchmark Transition Event and its related Benchmark Replacement Date, (B) the implementation of any Benchmark Replacement,
(C) the effectiveness of any Conforming Changes, (D) the removal or reinstatement of any tenor of a Benchmark pursuant to paragraph
(v) below and (E) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or
election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section, 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 Transaction Document
except, in each case, as expressly required pursuant to this Section.
(v) Unavailability
of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Transaction Document, at any time (including
in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term
SOFR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate
from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the administrator of such Benchmark
or 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 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, non-representative,
non-compliant or non-aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is
subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is
no longer, subject to an announcement that it is not or will not be representative, then the Administrative Agent may 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.
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(vi) Benchmark
Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower
may revoke any pending request for a Loan bearing interest based on the SOFR Rate, conversion to or continuation of Loans bearing interest
based on such Interest Rate Option to be made, converted or continued during any Benchmark Unavailability Period and, failing that, (i) the
Borrower will be deemed to have converted any such request into a request for a Loan of or conversion to Loans bearing interest under
the Base Rate Option and (ii) any outstanding affected Loans bearing interest based on the SOFR Rate will be deemed to have been
converted to Loans bearing interest under the Base Rate Option at the end of the applicable Tranche 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 5.05. Selection
of Interest Rate Options. If the Borrower fails to select a new Tranche Period to apply to any Borrowing Tranche of Loans under any
Term Rate Loan Option at the expiration of an existing Tranche Period applicable to such Borrowing Tranche in accordance with the provisions
of Section 2.07, the Borrower shall be deemed to have converted such Borrowing Tranche to the SOFR Rate Option with a Tranche
Period of one (1) month commencing upon the last day of the existing Tranche Period. If the Borrower provides any Loan Request related
to a Loan at the SOFR Rate Option but fails to identify a Tranche Period therefor, such Loan Request shall be deemed to request a Tranche
Period of one (1) monthMonth.
SECTION 5.06. Security
Interest.
(a) As
security for the performance by the Borrower of all the terms, covenants and agreements on the part of the Borrower to be performed under
this Agreement or any other Transaction Document, including the punctual payment when due of the Aggregate Capital and all Interest in
respect of the Loans and all other Borrower Obligations, the Borrower hereby grants to the Administrative Agent for its benefit and the
ratable benefit of the Secured Parties, a continuing security interest in, all of the Borrower’s right, title and interest in, to
and under all of the following, whether now or hereafter owned, existing or arising (collectively, the “Collateral”):
(i) all Pool Receivables, (ii) all Related Security with respect to such Pool Receivables, (iii) all Collections with respect
to such Pool Receivables, (iv) the Lock-Boxes and Collection Accounts and all amounts on deposit therein, and all certificates and
instruments, if any, from time to time evidencing such Lock-Boxes and Collection Accounts and amounts on deposit therein, (v) the
LC Collateral Account and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing LC
Collateral Account and amounts on deposit therein, (vi) all rights (but none of the obligations) of the Borrower under the Purchase
and Sale Agreement, (vii) all other personal and fixture property or assets of the Borrower of every kind and nature including, without
limitation, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents,
accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter of credit
rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights
or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each
as defined in the UCC) and (viii) all proceeds of, and all amounts received or receivable under any or all of, the foregoing.
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The Administrative Agent (for
the benefit of the Secured Parties) shall have, with respect to all the Collateral, and in addition to all the other rights and remedies
available to the Administrative Agent (for the benefit of the Secured Parties), all the rights and remedies of a secured party under any
applicable UCC. The Borrower hereby authorizes the Administrative Agent to file financing statements describing as the collateral covered
thereby as “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such wording
may be broader in scope than the collateral described in this Agreement.
Immediately upon the occurrence
of (i) the Final Payout Date or (ii) the repurchase of any Receivable as set forth in Section 3.3(a) of the Purchase
and Sale Agreement, the Collateral, in the case of clause (i), or the applicable Receivable and any Related Security solely with respect
to such Receivable, in the case of clause (ii), shall be automatically released from the lien created hereby, and this Agreement and all
obligations (other than those expressly stated to survive such termination) of the Administrative Agent, the Lenders and the other Credit
Parties hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the
Collateral shall revert to the Borrower; provided, however, that promptly following written request therefor by the Borrower
delivered to the Administrative Agent following any such termination, and at the expense of the Borrower, the Administrative Agent shall
deliver to the Borrower written authorization for the Borrower to file (or have filed on its behalf) UCC-3 termination statements and
such other documents as the Borrower shall reasonably request to evidence such termination.
ARTICLE VI
CONDITIONS
to Effectiveness and CREDIT EXTENSIONS
SECTION 6.01. Conditions
Precedent to Effectiveness and the Initial Credit Extension. This Agreement shall become effective as of the Closing Date when (a) the
Administrative Agent shall have received each of the documents, agreements (in fully executed form), opinions of counsel, lien search
results, UCC filings, certificates and other deliverables listed on the closing memorandum attached as Exhibit H hereto, in
each case, in form and substance acceptable to the Administrative Agent and (b) all fees and expenses payable by the Borrower on
the Closing Date to the Credit Parties have been paid in full in accordance with the terms of the Transaction Documents.
SECTION 6.02. Conditions
Precedent to All Credit Extensions. Each Credit Extension hereunder on or after the Closing Date shall be subject to the conditions
precedent that:
(a) in
the case of a Loan, the Borrower shall have delivered to the Administrative Agent and each Lender a
Loan Request for such Loan, and in the case of a Letter of Credit, the Borrower shall have delivered to the Administrative Agent and the
LC Bank, a Letter of Credit Application and an LC Request, in each case, in accordance with Section 2.02(a) or Section 3.02(a),
as applicable;
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(b) the
Servicer shall have delivered to the Administrative Agent and each Lender all Monthly Reports and Interim Reports required to be delivered
hereunder;
(c) the
conditions precedent to such Credit Extension specified in Section 2.01(i) through (iii) and Section 3.01(a),
as applicable, shall be satisfied;
(d) on
the date of such Credit Extension the following statements shall be true and correct (and upon the occurrence of such Credit Extension,
the Borrower and the Servicer shall be deemed to have represented and warranted that such statements are then true and correct):
(i) the
representations and warranties of the Borrower and the Servicer contained in Sections 7.01 and 7.02 are true and correct
in all material respects on and as of the date of such Credit Extension as though made on and as of such date unless such representations
and warranties by their terms refer to an earlier date, in which case they shall be true and correct in all material respects on and as
of such earlier date;
(ii) no
Event of Default or Unmatured Event of Default has occurred and is continuing, and no Event of Default or Unmatured Event of Default would
result from such Credit Extension;
(iii) no
Borrowing Base Deficit exists or would exist after giving effect to such Credit Extension; and
(iv) the
Termination Date has not occurred; and
(e) if
such Loan is a Swingline Loan, after giving effect thereto:
(i) the
Swingline Capital shall not extend the Swingline Sub-Limit; and
(ii) the
Aggregate Capital shall not (after giving effect to all Loans on such date) exceed the aggregate Commitments of all Lenders that are not
Defaulting Lenders.
SECTION 6.03. Conditions
Precedent to All Releases. Each Release hereunder on or after the Closing Date shall be subject to the conditions precedent that:
(a) after
giving effect to such Release, the Servicer shall be holding in trust for the benefit of the Secured Parties an amount of Collections
sufficient to pay the sum of (x) all accrued and unpaid Servicing Fees, Interest, Fees and Breakage Fees, in each case, through
the date of such Release, (y) the amount of any Borrowing Base Deficit (after giving effect to such Release and the Borrower’s
related purchase of Receivables pursuant to the Purchase and Sale Agreement on the date of such Release) and (z) the amount of all
other accrued and unpaid Borrower Obligations through the date of such Release;
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(b) the
Borrower shall use the proceeds of such Release solely to pay the purchase price for Receivables purchased by the Borrower in accordance
with the terms of the Purchase and Sale Agreement; and
(c) on
the date of such Release the following statements shall be true and correct (and upon the occurrence of such Release, the Borrower and
the Servicer shall be deemed to have represented and warranted that such statements are then true and correct):
(i) the
representations and warranties of the Borrower and the Servicer contained in Sections 7.01 and 7.02 are true and correct
in all material respects on and as of the date of such Release as though made on and as of such date unless such representations and warranties
by their terms refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier
date;
(ii) no
Event of Default or Unmatured Event of Default has occurred and is continuing, and no Event of Default or Unmatured Event of Default would
result from such Release;
(iii) no
Borrowing Base Deficit exists or would exist after giving effect to such Release;
(iv) the
Termination Date has not occurred; and
(v) the
Aggregate Capital plus the Adjusted LC Participation Amount exceeds the Minimum Funding Threshold.
ARTICLE VII
REPRESENTATIONS
AND WARRANTIES
SECTION 7.01. Representations
and Warranties of the Borrower. The Borrower represents and warrants to each Credit Party as of the Closing Date, on each Settlement
Date and on each day on which a Credit Extension shall have occurred:
(a) Organization
and Good Standing. The Borrower is a limited liability company and validly existing in good standing under the laws of the State of
Delaware and has full power and authority to own its properties and to conduct its business as such properties are currently owned and
such business is presently conducted.
(b) Due
Qualification. The Borrower is duly qualified to do business, is in good standing as a foreign entity and has obtained all necessary
licenses and approvals in all jurisdictions in which the conduct of its business requires such qualification, licenses or approvals, except
where the failure to do so could not reasonably be expected to have a Borrower Material Adverse Effect.
(c) Power
and Authority; Due Authorization. The Borrower (i) has all necessary power and authority to (A) execute and deliver this
Agreement and the other Transaction Documents to which it is a party, (B) perform its obligations under this Agreement and the other
Transaction Documents to which it is a party and (C) grant a security interest in the Collateral to the Administrative Agent on the
terms and subject to the conditions herein provided and (ii) has duly authorized by all necessary action such grant and the execution,
delivery and performance of, and the consummation of the transactions provided for in, this Agreement and the other Transaction Documents
to which it is a party.
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(d) Binding
Obligations. This Agreement and each of the other Transaction Documents to which the Borrower is a party constitutes legal, valid
and binding obligations of the Borrower, enforceable against the Borrower in accordance with their respective terms, except (i) as
such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and (ii) as such enforceability may be limited by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) No
Conflict or Violation. The execution, delivery and performance of, and the consummation of the transactions contemplated by, this
Agreement and the other Transaction Documents to which the Borrower is a party, and the fulfillment of the terms hereof and thereof, will
not (i) conflict with, result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse
of time or both) a default under its organizational documents or any indenture, sale agreement, credit agreement, loan agreement, security
agreement, mortgage, deed of trust, or other agreement or instrument to which the Borrower is a party or by which it or any of its properties
is bound, (ii) result in the creation or imposition of any Adverse Claim upon any of the Collateral pursuant to the terms of any
such indenture, credit agreement, loan agreement, security agreement, mortgage, deed of trust, or other agreement or instrument other
than this Agreement and the other Transaction Documents or (iii) conflict with or violate any Applicable Law.
(f) Litigation
and Other Proceedings. (i) There is no action, suit, proceeding or investigation pending or, to the best knowledge of the Borrower,
threatened, against the Borrower before any Governmental Authority and (ii) the Borrower is not subject to any order, judgment, decree,
injunction, stipulation or consent order of or with any Governmental Authority that, in the case of either of the foregoing clauses
(i) and (ii), (A) asserts the invalidity of this Agreement or any other Transaction Document, (B) seeks to prevent
the grant of a security interest in any Collateral by the Borrower to the Administrative Agent, the ownership or acquisition by the Borrower
of any Pool Receivable or other Collateral or the consummation of any of the transactions contemplated by this Agreement or any other
Transaction Document, (C) seeks any determination or ruling that could materially and adversely affect the performance by the Borrower
of its obligations under, or the validity or enforceability of, this Agreement or any other Transaction Document or (D) individually
or in the aggregate for all such actions, suits, proceedings and investigations could reasonably be expected to have a Borrower Material
Adverse Effect.
(g) Governmental
Approvals. Except where the failure to obtain or make such authorization, consent, order, approval or action could not reasonably
be expected to have a Borrower Material Adverse Effect, all authorizations, consents, orders and approvals of, or other actions by, any
Governmental Authority that are required to be obtained by the Borrower in connection with the grant of a security interest in the Collateral
to the Administrative Agent hereunder or the due execution, delivery and performance by the Borrower of this Agreement or any other Transaction
Document to which it is a party and the consummation by the Borrower of the transactions contemplated by this Agreement and the other
Transaction Documents to which it is a party have been obtained or made and are in full force and effect.
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(h) Margin
Regulations. The Borrower is not engaged, principally or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meanings of Regulations T, U and X of the Board of Governors of the Federal
Reserve System).
(i) Solvency.
After giving effect to the transactions contemplated by this Agreement and the other Transaction Documents, the Borrower is Solvent.
(j) Offices;
Legal Name. The Borrower’s sole jurisdiction of organization is the State of Delaware and such jurisdiction has not changed
within four months prior to the date of this Agreement. The office of the Borrower is located at 980 Jolly Road, Blue Bell, PA 19422.
The legal name of the Borrower is BrightView Funding LLC.
(k) Investment
Company Act; Volcker Rule. The Borrower (i) is not, and is not controlled by, an “investment company” registered
or required to be registered under the Investment Company Act and (ii) is not a “covered fund” under the Volcker Rule.
In determining that the Borrower is not a “covered fund” under the Volcker Rule, the Borrower relies on an exemption from
the definition of “investment company” set forth in Section 3(c)(5) of the Investment Company Act, although other
exemptions from the definition of “investment company” set forth in the Investment Company Act may be also be available.
(l) No
Material Adverse Effect. Since the date of formation of the Borrower there has been no Borrower Material Adverse Effect.
(m) Accuracy
of Information. All Monthly Reports, Interim Reports, Loan Requests, LC Requests, Letter of Credit Applications, certificates,
reports, statements, documents and other written information furnished to the Administrative Agent or any other Credit Party by or on
behalf of the Borrower pursuant to any provision of this Agreement or any other Transaction Document, or in connection with or pursuant
to any amendment or modification of, or waiver under, this Agreement or any other Transaction Document, is, at the time the same are so
furnished, complete and correct in all material respects on the date the same are furnished to the Administrative Agent or such other
Credit Party, and does not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the
statements contained therein not misleading; provided that, with respect to projected financial information, if any, such representation
is made only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
(n) Anti-Money
Laundering/International Trade Law Compliance. No: (a) Covered Entity, nor any officers or directors, nor to the Borrower’s
knowledge any employees, consultants, brokers, or agents acting on a Covered Entity’s behalf in connection with this Agreement:
(i) is a Sanctioned Person; (ii) directly, or knowingly indirectly through any third party, is engaged in any transactions or
other dealings with or for the benefit of any Sanctioned Person or Sanctioned Jurisdiction, or any transactions or other dealings that
otherwise are prohibited by any Anti-Terrorism Laws; (b) Collateral is Embargoed Property.
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(o) Anti-Corruption
Laws. Each Covered Entity has (a) conducted its business in compliance with all applicable Anti-Corruption Laws and (b) has
instituted and maintains or is subject to policies and procedures reasonably designed to ensure compliance with such Anti-Corruption Laws.
(p) Perfection
Representations.
(i) This
Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Borrower’s right, title and
interest in, to and under the Collateral which (A) security interest has been perfected and is enforceable against creditors of and
purchasers from the Borrower (in the case of the Related Security, in only that portion of the Related Security in which a security interest
may be perfected by the filing of a financing statement under the UCC) and (B) will be free of all Adverse Claims in such Collateral.
(ii) The
Receivables constitute “accounts” or “general intangibles” within the meaning of Section 9-102 of the UCC.
(iii) The
Borrower owns and has good and marketable title to the Collateral free and clear of any Adverse Claim of any Person.
(iv) All
appropriate financing statements, financing statement amendments and continuation statements have been filed in the proper filing office
in the appropriate jurisdictions under Applicable Law in order to perfect (and continue the perfection of) the sale and contribution of
the Receivables and Related Security from each Originator to the Borrower pursuant to the Purchase and Sale Agreement and the grant by
the Borrower of a security interest in the Collateral to the Administrative Agent pursuant to this Agreement.
(v) Other
than the security interest granted to the Administrative Agent pursuant to this Agreement, the Borrower has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Collateral except as permitted by this Agreement and the other Transaction
Documents. The Borrower has not authorized the filing of and is not aware of any financing statements filed against the Borrower that
include a description of collateral covering the Collateral other than any financing statement (i) in favor of the Administrative
Agent or (ii) that has been terminated. The Borrower is not aware of any judgment lien, ERISA lien or tax lien filings against the
Borrower.
(vi) Notwithstanding
any other provision of this Agreement or any other Transaction Document, the representations contained in this Section 7.01(p) shall
be continuing and remain in full force and effect until the Final Payout Date.
(q) The
Lock-Boxes and Collection Accounts.
(i) Nature
of Collection Accounts. Each Collection Account constitutes a “deposit account” within the meaning of the applicable UCC.
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(ii) Ownership.
Each Lock-Box and Collection Account is in the name of the Borrower, and the Borrower owns and has good and marketable title to the Collection
Accounts free and clear of any Adverse Claim.
(iii) Perfection.
The Borrower has delivered to the Administrative Agent a fully executed Account Control Agreement relating to each Lock-Box and Collection
Account. The Administrative Agent has “control” (as defined in Section 9-104 of the UCC) over each Collection Account.
(iv) Instructions.
Neither the Lock-Boxes nor the Collection Accounts are in the name of any Person other than the Borrower. Neither the Borrower nor the
Servicer has consented to the applicable Collection Account Bank complying with instructions of any Person other than the Administrative
Agent.
(r) Ordinary
Course of Business. Each remittance of Collections by or on behalf of the Borrower to the Credit Parties under this Agreement will
have been (i) in payment of a debt incurred by the Borrower in the ordinary course of business or financial affairs of the Borrower
and (ii) made in the ordinary course of business or financial affairs of the Borrower.
(s) Compliance
with Law. The Borrower has complied in all material respects with all Applicable Laws to which it may be subject.
(t) Bulk
Sales Act. No transaction contemplated by this Agreement requires compliance by it with any bulk sales act or similar law.
(u) Eligible
Receivables. Each Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance as of any date
is an Eligible Receivable as of such date.
(v) Taxes.
The Borrower has (i) timely filed all tax returns (federal, state and local) required to be filed by it and (ii) paid, or caused
to be paid, all taxes, assessments and other governmental charges, if any, other than taxes, assessments and other governmental charges
being contested in good faith by appropriate proceedings and as to which adequate reserves have been provided in accordance with GAAP,
except in each case to the extent that such failure to file or pay could not reasonably be expected to have a Borrower Material Adverse
Effect.
(w) Tax
Status. The Borrower (i) is, and shall at all relevant times continue to be, a “disregarded entity” within the meaning
of U.S. Treasury Regulation § 301.7701-3 for U.S. federal income tax purposes and (ii) is not and will not at any relevant time
become an association (or publicly traded partnership) taxable as a corporation for U.S. federal income tax purposes.
(x) Opinions.
The facts regarding the Borrower, the Servicer, each Originator, the Performance Guarantor, the Receivables, the Related Security and
the related matters set forth or assumed in each of the opinions of counsel delivered in connection with this Agreement and the Transaction
Documents are true and correct in all material respects.
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(y) Other
Transaction Documents. Each representation and warranty made by the Borrower under each other Transaction Document to which it is
a party is true and correct in all material respects as of the date when made.
(z) Liquidity
Coverage Ratio. The Borrower has not issued any LCR Securities, and the Borrower is a consolidated subsidiary of BrightView
under GAAP.
(aa) Beneficial
Ownership Regulation. As of the First Amendment Date, the Borrower is an entity that is organized under the laws of the United
States or of any state and at least 51% of whose common stock or analogous equity interest is owned directly or indirectly by a company
listed on the New York Stock Exchange or the American Stock Exchange or designated as a NASDAQ National Market Security listed on the
NASDAQ stock exchange and is excluded on that basis from the definition of “Legal Entity Customer” as defined in the Beneficial
Ownership Regulation.
(bb) Reaffirmation
of Representations and Warranties. On the date of each Credit Extension, on the date of each Release, on each Settlement Date
and on the date each Monthly Report, Interim Report or other report is delivered to the Administrative Agent or any Lender hereunder,
the Borrower shall be deemed to have certified that (i) all representations and warranties of the Borrower hereunder are true and
correct in all material respects on and as of such day as though made on and as of such day, except for representations and warranties
which apply as to an earlier date (in which case such representations and warranties shall be true and correct in all material respects
as of such date) and (ii) no Event of Default or an Unmatured Event of Default has occurred and is continuing or will result from
such Credit Extension or Release.
Notwithstanding any other
provision of this Agreement or any other Transaction Document, the representations and warranties contained in this Section shall
be continuing, and remain in full force and effect until the Final Payout Date.
SECTION 7.02. Representations
and Warranties of the Servicer. The Servicer represents and warrants to each Credit Party as of the Closing Date, on each Settlement
Date and on each day on which a Credit Extension shall have occurred:
(a) Organization
and Good Standing. The Servicer is a duly organized and validly existing limited liability company in good standing under the laws
of the State of Delaware, with the power and authority under its organizational documents and under the laws of Delaware to own its properties
and to conduct its business as such properties are currently owned and such business is presently conducted.
(b) Due
Qualification. The Servicer is duly qualified to do business, is in good standing as a foreign entity and has obtained all necessary
licenses and approvals in all jurisdictions in which the conduct of its business or the servicing of the Pool Receivables as required
by this Agreement requires such qualification, licenses or approvals, except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect.
(c) Power
and Authority; Due Authorization. The Servicer has all necessary power and authority to (i) execute and deliver this Agreement
and the other Transaction Documents to which it is a party and (ii) perform its obligations under this Agreement and the other Transaction
Documents to which it is a party and the execution, delivery and performance of, and the consummation of the transactions provided for
in, this Agreement and the other Transaction Documents to which it is a party have been duly authorized by the Servicer by all necessary
action.
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(d) Binding
Obligations. This Agreement and each of the other Transaction Documents to which the Servicer is a party constitutes legal, valid
and binding obligations of the Servicer, enforceable against the Servicer in accordance with their respective terms, except (i) as
such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and (ii) as such enforceability may be limited by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) No
Conflict or Violation. The execution and delivery of this Agreement and each other Transaction Document to which the Servicer is a
party, the performance of the transactions contemplated by this Agreement and such other Transaction Documents and the fulfillment of
the terms of this Agreement and such other Transaction Documents by the Servicer will not (i) conflict with, result in any breach
of any of the terms or provisions of, or constitute (with or without notice or lapse of time or both) a default under, the organizational
documents of the Servicer or any indenture, sale agreement, credit agreement (including the Credit Agreement), loan agreement, security
agreement, mortgage, deed of trust or other agreement or instrument to which the Servicer is a party or by which it or any of its property
is bound, (ii) result in the creation or imposition of any Adverse Claim upon any of its properties pursuant to the terms of any
such indenture, credit agreement, loan agreement, security agreement, mortgage, deed of trust or other agreement or instrument, other
than this Agreement and the other Transaction Documents or (iii) conflict with or violate any Applicable Law, except to the extent
that any such conflict, breach, default, Adverse Claim or violation could not reasonably be expected to have a Material Adverse Effect.
(f) Litigation
and Other Proceedings. There is no action, suit, proceeding or investigation pending, or to the Servicer’s knowledge threatened,
against the Servicer before any Governmental Authority: (i) asserting the invalidity of this Agreement or any of the other Transaction
Documents; (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or any other Transaction
Document; or (iii) seeking any determination or ruling that could materially and adversely affect the performance by the Servicer
of its obligations under, or the validity or enforceability of, this Agreement or any of the other Transaction Documents.
(g) No
Consents. The Servicer is not required to obtain the consent of any other party or any consent, license, approval, registration, authorization
or declaration of or with any Governmental Authority in connection with the execution, delivery, or performance of this Agreement or any
other Transaction Document to which it is a party that has not already been obtained or the failure of which to obtain could not reasonably
be expected to have a Material Adverse Effect.
(h) Compliance
with Applicable Law. The Servicer (i) shall duly satisfy all obligations on its part to be fulfilled under or in connection with
the Pool Receivables and the related Contracts, (ii) has maintained in effect all qualifications required under Applicable Law in
order to properly service the Pool Receivables and (iii) has complied in all material respects with all Applicable Laws in connection
with servicing the Pool Receivables.
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(i) Accuracy
of Information. All Monthly Reports, Interim Reports, Loan Requests, LC Requests, Letter of Credit Applications, certificates,
reports, statements, documents and other written information furnished to the Administrative Agent or any other Credit Party by the Servicer
pursuant to any provision of this Agreement or any other Transaction Document, or in connection with or pursuant to any amendment or modification
of, or waiver under, this Agreement or any other Transaction Document, is, at the time the same are so furnished, complete and correct
in all material respects on the date the same are furnished to the Administrative Agent or such other Credit Party, and does not contain
any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not
misleading; provided that, with respect to projected financial information, if any, such representation is made only that such
information was prepared in good faith based upon assumptions believed to be reasonable at the time.
(j) Location
of Records. The offices where the initial Servicer keeps all of its records relating to the servicing of the Pool Receivables are
located at 980 Jolly Road, Blue Bell, PA 19422.
(k) Credit
and Collection Policy. The Servicer has complied in all material respects with the Credit and Collection Policy in connection with
its servicing of the Pool Receivables and the related Contracts.
(l) Eligible
Receivables. Each Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance as of any date
is an Eligible Receivable as of such date.
(m) Servicing
Programs. No material license or approval is required for the Administrative Agent’s use of any software or other computer program
used by the Servicer, any Originator or any Sub-Servicer in the servicing of the Pool Receivables, other than those which have been obtained
and are in full force and effect.
(n) Servicing
of Pool Receivables. Since the Closing Date there has been no material adverse change in the ability of the Servicer or any Sub-Servicer
to service and collect the Pool Receivables and the Related Security.
(o) Other
Transaction Documents. Each representation and warranty made by the Servicer under each other Transaction Document to which it is
a party (including, without limitation, the Purchase and Sale Agreement) is true and correct in all material respects as of the date when
made.
(p) No
Material Adverse Effect. Since December 31, 2016 there has been no Material Adverse Effect on the Servicer.
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(q) Investment
Company Act. The Servicer is not an “investment company,” or a company “controlled” by an “investment
company,” within the meaning of the Investment Company Act.
(r) Sanctions
and other Anti-Terrorism Laws. No: (a) Covered Entity, nor any officers or directors, nor to such Servicer’s knowledge
any employees, consultants, brokers, or agents acting on a Covered Entity’s behalf in connection with this Agreement: (i) is
a Sanctioned Person; (ii) directly, or knowingly indirectly through any third party, is engaged in any transactions or other dealings
with or for the benefit of any Sanctioned Person or Sanctioned Jurisdiction, or any transactions or other dealings that otherwise are
prohibited by any Anti-Terrorism Laws; (b) Collateral is Embargoed Property.
(s) Anti-Corruption
Laws. Each Covered Entity has (a) conducted its business in compliance with all applicable Anti-Corruption Laws and (b) has
instituted and maintains or is subject to policies and procedures reasonably designed to ensure compliance with such Anti-Corruption Laws.
(t) Financial
Condition. The consolidated balance sheets of the Servicer and its consolidated Subsidiaries as of December 31, 2016 and the
related statements of income and shareholders’ equity of the Servicer and its consolidated Subsidiaries for the fiscal year then
ended, copies of which have been furnished to the Administrative Agent and the Lenders, present fairly in all material respects the consolidated
financial position of the Servicer and its consolidated Subsidiaries for the period ended on such date, all in accordance with GAAP.
(u) Bulk
Sales Act. No transaction contemplated by this Agreement requires compliance by it with any bulk sales act or similar law.
(v) Taxes.
The Servicer has (i) timely filed all tax returns (federal, state and local) required to be filed by it and (ii) paid, or caused
to be paid, all taxes, assessments and other governmental charges, if any, other than taxes, assessments and other governmental charges
being contested in good faith by appropriate proceedings and as to which adequate reserves have been provided in accordance with GAAP,
except in each case to the extent that the failure to file or pay could not reasonably be expected to have a Material Adverse Effect.
(w) Opinions.
The facts regarding the Borrower, the Servicer, each Originator, the Performance Guarantor, the Receivables, the Related Security and
the related matters set forth or assumed in each of the opinions of counsel delivered in connection with this Agreement and the Transaction
Documents are true and correct in all material respects.
(x) Reaffirmation
of Representations and Warranties. On the date of each Credit Extension, on the date of each Release, on each Settlement Date
and on the date each Monthly Report, Interim Report or other report is delivered to the Administrative Agent or any Lender hereunder,
the Servicer shall be deemed to have certified that (i) all representations and warranties of the Servicer hereunder are true and
correct in all material respects on and as of such day as though made on and as of such day, except for representations and warranties
which apply as to an earlier date (in which case such representations and warranties shall be true and correct in all material respects
as of such date) and (ii) no Event of Default or an Unmatured Event of Default has occurred and is continuing or will result from
such Credit Extension or Release.
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Notwithstanding any other
provision of this Agreement or any other Transaction Document, the representations contained in this Section shall be continuing,
and remain in full force and effect until the Final Payout Date.
ARTICLE VIII
COVENANTS
SECTION 8.01. Covenants
of the Borrower. At all times from the Closing Date until the Final Payout Date:
(a) Payment
of Principal and Interest. The Borrower shall duly and punctually pay Capital, Interest, Fees and all other amounts payable by
the Borrower hereunder in accordance with the terms of this Agreement.
(b) Existence.
The Borrower shall keep in full force and effect its existence and rights as a limited liability company under the laws of the State of
Delaware, and shall obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of this Agreement, the other Transaction Documents and the Collateral.
(c) Financial
Reporting. The Borrower will maintain a system of accounting established and administered in accordance with GAAP, and the Borrower
(or the Servicer on its behalf) shall furnish to the Administrative Agent, the LC Bank and each Lender:
(i) Annual
Financial Statements of the Borrower. Promptly upon completion and in no event later than 105 days after the close of each
fiscal year of the Borrower, annual unaudited financial statements of the Borrower certified by a Financial Officer of the Borrower that
they fairly present in all material respects, in accordance with GAAP, the financial condition of the Borrower as of the date indicated
and the results of its operations for the periods indicated.
(ii) Monthly
Reports and Interim Reports. As soon as available and in any event (a) not later than two (2) Business Days prior to each
Settlement Date, a Monthly Report as of the most recently completed Fiscal Month and (b) not later than two (2) Business Days
following the Borrower’s receipt of a request thereof, an Interim Report with respect to the Pool Receivables with data as of the
close of business on the applicable date specified by the Administrative Agent (which date in any event shall not be later than the immediately
preceding Business Day).
(iii) Other
Information. Such other information relating to the Collateral and the Borrower and the transactions contemplated hereby (including
non-financial information) as the Administrative Agent or any Lender may from time to time reasonably request.
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(iv) Quarterly
Financial Statements of Performance Guarantor. As soon as available and in any event not later than the date on which such financial
statements are required to be filed with the SEC (after giving effect to any permitted extensions) (or, if such financial statements are
not required to be filed with the SEC, in no event later than 60 days following the end of each of the first three fiscal quarters in
each of Performance Guarantor’s fiscal years), (i) the unaudited consolidated balance sheet and statements of income of Performance
Guarantor and its consolidated Subsidiaries (including the Borrower, the Servicer and each Originator) as at the end of such fiscal quarter
and the related unaudited consolidated statements of earnings and cash flows for such fiscal quarter and for the elapsed portion of the
fiscal year ended with the last day of such fiscal quarter, in each case setting forth comparative figures for the corresponding fiscal
quarter in the prior fiscal year, all of which shall be certified by a Financial Officer of Performance Guarantor that they fairly present
in all material respects, in accordance with GAAP, the financial condition of Performance Guarantor and its consolidated Subsidiaries
as of the dates indicated and the results of their operations for the periods indicated, subject to normal year-end audit adjustments
and the absence of footnotes and (ii) to the extent required to be filed with the SEC, management’s discussion and analysis
of the important operational and financial developments during such fiscal quarter.
(v) Annual
Financial Statements of Performance Guarantor. As soon as available and in any event no later than the date on which such financial
statements are required to be filed with the SEC (after giving effect to any permitted extensions) or, if such financial statements are
not required to be filed with the SEC, on or before the date that is 105 days after the close of each of Performance Guarantor’s
fiscal years, the consolidated balance sheet of Performance Guarantor and its consolidated Subsidiaries (including the Borrower, the Servicer
and each Originator) as at the end of such fiscal year and the related consolidated statements of earnings and cash flows for such fiscal
year setting forth comparative figures for the preceding fiscal year, all reported on by independent certified public accountants of recognized
national standing (without a “going concern” or like qualification or exception) to the effect that such consolidated financial
statements present fairly in all material respects, in accordance with GAAP, the financial condition of Performance Guarantor and its
consolidated Subsidiaries as of the dates indicated and the results of their operations for the periods indicated.
(vi) Other
Reports and Filings. Promptly (but in any event within ten days) after the filing or delivery thereof, copies of all financial information,
proxy materials and reports, if any, which Performance Guarantor or any of its consolidated Subsidiaries shall publicly file with the
SEC or deliver to holders (or any trustee, agent or other representative therefor) of any of its material Debt pursuant to the terms of
the documentation governing the same.
Notwithstanding anything herein
to the contrary, any financial information, proxy statements or other material required to be delivered pursuant to this paragraph (c) shall
be deemed to have been furnished to each of the Administrative Agent and each Lender on the date that such report, proxy statement or
other material is posted on the SEC’s website at www.sec.gov.
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(d) Notices.
The Borrower (or the Servicer on its behalf) will notify the Administrative Agent and each Lender in writing of any of the following events
promptly upon (but in no event later than three (3) Business Days after) a Financial Officer or other officer learning of the occurrence
thereof, with such notice describing the same, and if applicable, the steps being taken by the Person(s) affected with respect thereto:
(i) Notice
of Events of Default or Unmatured Events of Default. A statement of a Financial Officer of the Borrower setting forth details of any
Event of Default or Unmatured Event of Default that has occurred and is continuing and the action which the Borrower proposes to take
with respect thereto.
(ii) Litigation.
The institution of any litigation, arbitration proceeding or governmental proceeding on the Servicer, the Parent, Performance Guarantor
or any Originator, which could reasonably be expected to have a Material Adverse Effect, or the institution of any litigation, arbitration
proceeding or governmental proceeding on the Borrower.
(iii) Adverse
Claim. (A) Any Person shall obtain an Adverse Claim upon the Collateral or any portion thereof, (B) any Person other
than the Borrower, the Servicer or the Administrative Agent shall obtain any rights or direct any action with respect to any Collection
Account (or related Lock-Box) or (C) any Obligor shall receive any change in payment instructions with respect to Pool Receivable(s) from
a Person other than the Servicer or the Administrative Agent.
(iv) Name
Changes. At least thirty (30) days before any change in any Originator’s or the Borrower’s name, jurisdiction of organization
or any other change requiring the amendment of UCC financing statements filed against the Borrower or any Originator.
(v) Change
in Accountants or Accounting Policy. Any change in (i) the external accountants of the Borrower, the Servicer, any Originator,
Performance Guarantor or the Parent, (ii) any accounting policy of the Borrower or (iii) any material accounting policy of any
Originator that is relevant to the transactions contemplated by this Agreement or any other Transaction Document (it being understood
that any change to the manner in which any Originator accounts for the Pool Receivables shall be deemed “material” for such
purpose).
(vi) Termination
Event. The occurrence of a Purchase and Sale Termination Event under the Purchase and Sale Agreement.
(vii) Material
Adverse Change. Promptly after the occurrence thereof, notice of any Borrower Material Adverse Effect or Material Adverse Effect.
(e) Conduct
of Business. The Borrower will carry on and conduct its business in substantially the same manner and in substantially the same fields
of enterprise as it is presently conducted and will do all things necessary to remain duly organized, validly existing and in good standing
as a domestic organization in its jurisdiction of organization and maintain all requisite authority to conduct its business in each jurisdiction
in which its business is conducted.
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(f) Compliance
with Laws. The Borrower will comply with all Applicable Laws to which it may be subject if the failure to comply could reasonably
be expected to have a Borrower Material Adverse Effect.
(g) Furnishing
of Information and Inspection of Receivables. The Borrower will furnish or cause to be furnished to the Administrative Agent, the
LC Bank and each Lender from time to time such information with respect to the Pool Receivables and the other Collateral as the Administrative
Agent, the LC Bank or any Lender may reasonably request. The Borrower will, at the Borrower’s expense, during regular business hours
with prior written notice (i) permit the Administrative Agent, the LC Bank and each Lender or their respective agents or representatives
to (A) examine and make copies of and abstracts from all books and records relating to the Pool Receivables or other Collateral,
(B) visit the offices and properties of the Borrower for the purpose of examining such books and records and (C) discuss matters
relating to the Pool Receivables, the other Collateral or the Borrower’s performance hereunder or under the other Transaction Documents
to which it is a party with any of the officers, directors, employees or independent public accountants of the Borrower having knowledge
of such matters and (ii) without limiting the provisions of clause (i) above, during regular business hours, at the Borrower’s
expense, upon prior written notice from the Administrative Agent, permit certified public accountants or other auditors acceptable to
the Administrative Agent to conduct a review of its books and records with respect to such Pool Receivables and other Collateral; provided,
that the Borrower shall be required to reimburse the Administrative Agent for only one (1) combined review of the Servicer, the Borrower
and the Originators pursuant to Section 8.02(e) and the Borrower pursuant to clause (ii) above in any twelve-month
period, unless an Event of Default has occurred and is continuing.
(h) Payments
on Receivables, Collection Accounts. The Borrower (or the Servicer on its behalf) will, and will cause each Originator to, at all
times, instruct all Obligors to deliver payments on the Pool Receivables to a Collection Account or a Lock-Box. The Borrower (or the Servicer
on its behalf) will, and will cause each Originator to, at all times, maintain such books and records necessary to identify Collections
received from time to time on Pool Receivables and to segregate such Collections from other property of the Servicer and the Originators.
If any payments on the Pool Receivables or other Collections are received by the Borrower, the Servicer or an Originator, it shall hold
such payments in trust for the benefit of the Administrative Agent, the Lenders and the other Secured Parties and promptly remit such
funds into a Collection Account; provided, however, that (x) no less than 98.0% of such payments received shall be
remitted to a Collection Account within one (1) Business Day after becoming aware of such receipt and (y) no more than 2.0%
of such payments received shall be remitted to a Collection Account within five (5) Business Days after becoming aware of such receipt.
The Borrower shall use commercially reasonable efforts to ensure that no funds other than Collections on Pool Receivables and other Collateral
are deposited into any Collection Account. If such funds are nevertheless deposited into any Collection Account, the Borrower (or the
Servicer on its behalf) will within two (2) Business Days identify and transfer such funds to the appropriate Person entitled to
such funds. The Borrower will not, and will not permit the Servicer, any Originator or any other Person to commingle Collections or other
funds to which the Administrative Agent, any Lender or any other Secured Party is entitled, with any other funds. The Borrower shall only
add a Collection Account (or a related Lock-Box) or a Collection Account Bank to those listed on Schedule II to this Agreement,
if the Administrative Agent has received notice of such addition and an executed and acknowledged copy of an Account Control Agreement
(or an amendment thereto) from the applicable Collection Account Bank. The Borrower shall only terminate a Collection Account Bank or
close a Collection Account (or a related Lock-Box) with the prior written consent of the Administrative Agent.
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(i) Sales,
Liens, etc. Except as otherwise provided herein, the Borrower will not sell, assign (by operation of law or otherwise) or otherwise
dispose of, or create or suffer to exist any Adverse Claim upon (including, without limitation, the filing of any financing statement)
or with respect to, any Pool Receivable or other Collateral, or assign any right to receive income in respect thereof.
(j) Extension
or Amendment of Pool Receivables. Except as otherwise permitted in Section 9.02, the Borrower will not, and will
not permit the Servicer to, alter the delinquency status or adjust the Outstanding Balance or otherwise modify the terms of any Pool Receivable
in any material respect, or amend, modify or waive, in any material respect, any term or condition of any related Contract. The Borrower
shall at its expense, timely and fully perform and comply in all material respects with all provisions, covenants and other promises required
to be observed by it under the Contracts related to the collectability of the Pool Receivables, and timely and fully comply with the Credit
and Collection Policy with regard to each Pool Receivable and the related Contract.
(k) Change
in Credit and Collection Policy. The Borrower will not make any material change in the Credit and Collection Policy that would be
reasonably expected to either (x) have a material adverse effect on the collectability of the Pool Receivables or (y) have a
Borrower Material Adverse Effect or a Material Adverse Effect, in each case, without the prior written consent of the Administrative Agent
and the Majority Lenders. Promptly following any material change in the Credit and Collection Policy, the Borrower will deliver a copy
of the updated Credit and Collection Policy to the Administrative Agent and each Lender.
(l) Fundamental
Changes. The Borrower shall not, without the prior written consent of the Administrative Agent and the Majority Lenders, permit itself
to merge or consolidate with or into, or convey, transfer, lease or otherwise 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, any Person. The Borrower shall provide
the Administrative Agent with at least 30 days’ prior written notice before making any change in the Borrower’s name or location
or making any other change in the Borrower’s identity or corporate structure that could impair or otherwise render any UCC financing
statement filed in connection with this Agreement or any other Transaction Document “seriously misleading” as such term (or
similar term) is used in the applicable UCC; each notice to the Administrative Agent and the Lenders pursuant to this sentence shall set
forth the applicable change and the proposed effective date thereof.
(m) Books
and Records. The Borrower shall maintain and implement (it being understood and agreed that the Servicer may maintain and implement
on the Borrower’s behalf) administrative and operating procedures (including an ability to recreate records evidencing Pool Receivables
and related Contracts in the event of the destruction of the originals thereof), and keep and maintain (it being understood and agreed
that the Servicer may keep and maintain on the Borrower’s behalf) all documents, books, records, computer tapes and disks and other
information reasonably necessary or advisable for the collection of all Pool Receivables (including records adequate to permit the daily
identification of each Pool Receivable and all Collections of and adjustments to each existing Pool Receivable).
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(n) Identifying
of Records. The Borrower shall: identify (it being understood and agreed that the Servicer may identify on the Borrower’s behalf)
its master data processing records relating to Pool Receivables and related Contracts with a legend that indicates that the Pool Receivables
have been pledged in accordance with this Agreement.
(o) Change
in Payment Instructions to Obligors. The Borrower shall not (and shall not instruct or encourage the Servicer or any Sub-Servicer
to) add, replace or terminate any Collection Account (or any related Lock-Box) or make any change in its (or their) instructions to the
Obligors regarding payments to be made to the Collection Accounts (or any related Lock-Box), other than any instruction to remit payments
to a different Collection Account (or any related Lock-Box), unless the Administrative Agent shall have received (i) prior written
notice of such addition, termination or change and (ii) a signed and acknowledged Account Control Agreement (or amendment thereto)
with respect to such new Collection Accounts (or any related Lock-Box), in each case (x) in form and substance reasonably satisfactory
to the Administrative Agent and (y) in accordance with the terms hereof and, if applicable, such Account Control Agreement.
(p) Security
Interest, Etc. The Borrower shall (and shall cause the Servicer to), at its expense, take all action necessary to establish and maintain
a valid and enforceable first priority perfected security interest in the Receivables and that portion of the Collateral in which an ownership
or security interest may be created under the UCC and perfected by the filing of a financing statement under the UCC, in each case free
and clear of any Adverse Claim, in favor of the Administrative Agent (on behalf of the Secured Parties), including taking such action
to perfect, protect or more fully evidence the security interest of the Administrative Agent (on behalf of the Secured Parties) as the
Administrative Agent or any Secured Party may reasonably request. In order to evidence the security interests of the Administrative Agent
under this Agreement, the Borrower shall, from time to time take such action, or execute (if necessary) and deliver such instruments as
may be necessary (including, without limitation, such actions as are reasonably requested by the Administrative Agent) to maintain and
perfect, as a first-priority interest, the Administrative Agent’s security interest in the Receivables and that portion of the Related
Security and Collections in which a security interest may be perfected by the filing of a financing statement under the UCC. The Borrower
shall, from time to time and within the time limits established by law, prepare and present to the Administrative Agent for the Administrative
Agent’s authorization and approval, all financing statements, amendments, continuations or initial financing statements in lieu
of a continuation statement, or other filings necessary to continue, maintain and perfect the Administrative Agent’s security interest
as a first-priority interest. The Administrative Agent’s approval of such filings shall authorize the Borrower to file such financing
statements under the UCC without the signature of the Borrower, any Originator or the Administrative Agent where allowed by Applicable
Law. Notwithstanding anything else in the Transaction Documents to the contrary, the Borrower shall not have any authority to file a termination,
partial termination, release, partial release, or any amendment that deletes the name of a debtor or excludes collateral of any such financing
statements filed in connection with the Transaction Documents, without the prior written consent of the Administrative Agent.
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(q) Certain
Agreements. Without the prior written consent of the Administrative Agent and the Majority Lenders, the Borrower will not amend, modify,
waive, revoke or terminate any Transaction Document to which it is a party or any provision of the Borrower’s organizational documents
which requires the consent of the “Independent Director” (as such term is used in the Borrower’s Certificate of Formation
and Limited Liability Company Agreement).
(r) Restricted
Payments. (i) Except pursuant to clause (ii) below, the Borrower will not: (A) purchase or redeem any of its
membership interests, (B) declare or pay any dividend or set aside any funds for any such purpose, (C) prepay, purchase or redeem
any Debt (other than any Loans pursuant to this Agreement), (D) lend or advance any funds or (E) repay any loans or advances
to, for or from any of its Affiliates (the amounts described in clauses (A) through (E) being referred to as “Restricted
Payments”).
(ii) Subject
to the limitations set forth in clause (iii) below, the Borrower may make Restricted Payments so long as such Restricted Payments
are made only in one or more of the following ways: (A) the Borrower may make cash payments (including prepayments) on the Subordinated
Notes in accordance with their respective terms (it being understood that the foregoing shall not restrict any adjustment to the balance
of any Subordinated Note pursuant to Sections 3.2, 3.3 or 3.4 of the Purchase and Sale Agreement as a result of the issuance or expiration
of any Letter of Credit) and (B) the Borrower may declare and pay dividends if, both immediately before and immediately after giving
effect thereto, the Borrower’s Net Worth is not less than the Required Capital Amount.
(iii) The
Borrower may make Restricted Payments only out of the funds, if any, it receives pursuant to Sections 4.01 of this Agreement; provided
that the Borrower shall not pay, make or declare any Restricted Payment (including any dividend) if, after giving effect thereto, any
Event of Default or Unmatured Event of Default shall have occurred and be continuing.
(s) Other
Business. The Borrower will not: (i) engage in any business other than the transactions contemplated by the Transaction Documents,
(ii) create, incur or permit to exist any Debt of any kind (or cause or permit to be issued for its account any letters of credit
(excluding, for the avoidance of doubt, Letters of Credit issued hereunder)) or bankers’ acceptances other than pursuant to this
Agreement or the Subordinated Notes or (iii) form any Subsidiary or make any investments in any other Person.
(t) Use
of Collections Available to the Borrower. The Borrower shall apply the Collections available to the Borrower to make payments in the
following order of priority: (i) the payment of its obligations under this Agreement and each of the other Transaction Documents
(other than the Subordinated Notes), (ii) the payment of accrued and unpaid interest on the Subordinated Notes and (iii) other
legal and valid purposes.
(u) Further
Assurances; Change in Name or Jurisdiction of Origination, etc. (i) The Borrower hereby authorizes and hereby agrees
from time to time, at its own expense, promptly to execute (if necessary) and deliver all further instruments and documents, and to
take all further actions, that may be necessary or desirable, or that the Administrative Agent may reasonably request, to perfect,
protect or more fully evidence the security interest granted pursuant to this Agreement or any other Transaction Document, or to
enable the Administrative Agent (on behalf of the Secured Parties) to exercise and enforce the Secured Parties’ rights and
remedies under this Agreement and the other Transaction Document. Without limiting the foregoing, the Borrower hereby authorizes,
and will, upon the request of the Administrative Agent, at the Borrower’s own expense, execute (if necessary) and file such
financing statements or continuation statements, or amendments thereto, and such other instruments and documents, that may be
necessary, or that the Administrative Agent may reasonably request, to perfect, protect or evidence any of the foregoing.
(ii) The
Borrower authorizes the Administrative Agent to file financing statements, continuation statements and amendments thereto and assignments
thereof, relating to the Receivables, the Related Security, the related Contracts, Collections with respect thereto and the other Collateral
without the signature of the Borrower. A photocopy or other reproduction of this Agreement shall be sufficient as a financing statement
where permitted by law.
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(iii) The
Borrower shall at all times be organized under the laws of the State of Delaware and shall not take any action to change its jurisdiction
of organization.
(iv) The
Borrower will not change its name, location, identity or corporate structure unless (x) the Borrower, at its own expense, shall have
taken all action necessary or appropriate to perfect or maintain the perfection of the security interest under this Agreement (including,
without limitation, the filing of all financing statements and the taking of such other action as the Administrative Agent may request
in connection with such change or relocation) and (y) if requested by the Administrative Agent, the Borrower shall cause to be delivered
to the Administrative Agent, an opinion, in form and substance satisfactory to the Administrative Agent as to such UCC perfection and
priority matters as the Administrative Agent may request at such time.
(v) Sanctions
and other Anti-Terrorism Laws; Anti-Corruption Laws. The Borrower covenants and agrees that:
(i) it
shall as soon as reasonably practicable notify any Credit Party in writing upon learning of the occurrence of a Reportable Compliance
Event;
(ii) if,
at any time, any Collateral becomes Embargoed Property, then, in addition to all other rights and remedies available to any Credit Party,
upon reasonable request by any Credit Party, the Borrower shall provide substitute Collateral acceptable to the Administrative Agent that
is not Embargoed Property;
(iii) it
shall, and shall require each other Covered Entity to, conduct its business in material compliance with all Anti-Corruption Laws and maintain
or remain subject to policies and procedures reasonably designed to ensure compliance with such Anti-Corruption Laws;
(iv) it
and its Subsidiaries will not: (A) to it and its Subsidiaries’ knowledge, become a Sanctioned Person or knowingly allow any
employees, officers, directors, consultants, brokers, or agents, acting on its behalf in connection with this Agreement to become a Sanctioned
Person; (B) directly, or knowingly indirectly through a third party, engage in any transactions or other dealings with or for the
benefit of any Sanctioned Person or Sanctioned Jurisdiction, including any use of the proceeds of the Credit Extensions (x) for the
purpose of violating sanctions against a Sanctioned Jurisdiction, anti-money laundering rules and regulations, or any transactions
or other dealings that otherwise are prohibited by any Anti-Terrorism Laws, to the extent such activities would be prohibited by applicable
Anti-Terrorism Laws or (y) in any manner that could result in a violation by any Person of Anti-Corruption Law (including the Administrative
Agent, any Lender, underwriter, advisor, investor, or otherwise); (C) pay or repay any Borrower Obligations with Embargoed Property
or funds derived from any unlawful activity; or (D) cause any Credit Party to violate any Anti-Terrorism Law; and
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(v) it
will not, and will not permit any its Subsidiaries to, directly or knowingly indirectly, use the Credit Extensions or any proceeds thereof
for any purpose which would breach applicable Anti-Corruption Laws in any jurisdiction in which any Covered Entity conducts business.
(w) Borrower’s
Net Worth. The Borrower shall not permit the Borrower’s Net Worth to be less than the Required Capital Amount.
(x) Taxes. The
Borrower will (i) timely file all tax returns (federal, state and local) required to be filed by it and (ii) pay, or cause to
be paid, all taxes, assessments and other governmental charges, if any, other than taxes, assessments and other governmental charges being
contested in good faith by appropriate proceedings and as to which adequate reserves have been provided in accordance with GAAP, except
in each case to the extent that the failure to file or pay could not reasonably be expected to have a Borrower Material Adverse Effect.
(y) Borrower’s
Tax Status. The Borrower will remain a wholly-owned subsidiary of a United States person (within the meaning of Section 7701(a)(30)
of the Code). No action will be taken that would cause the Borrower to (i) be treated other than as a “disregarded entity”
within the meaning of U.S. Treasury Regulation § 301.7701-3 for U.S. federal income tax purposes or (ii) become an association
taxable as a corporation or a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes.
(z) Liquidity
Coverage Ratio. The Borrower shall not issue any LCR Security.
(aa) Minimum
Funding Threshold. The Aggregate Capital plus the Adjusted LC Participation Amount shall exceed the Minimum Funding Threshold.
(bb) Federal
Assignment of Claims Act, Etc. If requested by the Administrative Agent at any time following the occurrence of an Event of Default,
the Borrower shall prepare and make any filings under the Federal Assignment of Claims Act (or any other similar Applicable Law, including
any state or municipal law or regulation) with respect to Receivables from Obligors that are Governmental Authorities, that are necessary
or desirable in order for the Administrative Agent to enforce such Receivable against the Obligor thereof.
(cc) Beneficial
Ownership Regulation. Promptly following any change that would result in a change to the status as an excluded “Legal
Entity Customer” under (and as defined in) the Beneficial Ownership Regulation, the Borrower shall execute and deliver to the Administrative
Agent a Certification of Beneficial Owner(s) complying with the Beneficial Ownership Regulation, in form and substance reasonably
acceptable to the Administrative Agent.
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SECTION 8.02. Covenants
of the Servicer. At all times from the Closing Date until the Final Payout Date:
(a) Financial
Reporting. The Servicer will maintain a system of accounting established and administered in accordance with GAAP, and the Servicer
shall furnish to the Administrative Agent, the LC Bank and each Lender:
(i) Compliance
Certificates.(a) A compliance certificate promptly upon completion of the annual report of the Performance Guarantor and in no
event later than 90 days after the close of the Performance Guarantor’s fiscal year (or, if later, in the manner and period set
forth in Section 8.01(c)(v)), in form and substance substantially similar to Exhibit G signed by a Financial Officer
of the Servicer stating that no Event of Default or Unmatured Event of Default has occurred and is continuing, or if any Event of Default
or Unmatured Event of Default has occurred and is continuing, stating the nature and status thereof and (b) within 45 days after
the close of each fiscal quarter of the Servicer (or, if later, in the manner set forth in Section 8.01(c)(iv)), a compliance
certificate in form and substance substantially similar to Exhibit G signed by a Financial Officer of the Servicer stating
that no Event of Default or Unmatured Event of Default has occurred and is continuing, or if any Event of Default or Unmatured Event of
Default has occurred and is continuing, stating the nature and status thereof.
(ii) Monthly
Reports and Interim Reports. As soon as available and in any event (a) not later than two (2) Business Days prior to each
Settlement Date, a Monthly Report as of the most recently completed Fiscal Month and (b) not later than two (2) Business Days
following the Servicer’s receipt of a request thereof, an Interim Report with respect to the Pool Receivables with data as of the
close of business on the applicable date specified by the Administrative Agent (which date in any event shall not be later than the immediately
preceding Business Day).
(iii) Other
Information. Such other information (including non-financial information) relating to the Borrower, the Servicer, the Originators
and the Collateral as the Administrative Agent or any Lender may from time to time reasonably request.
(b) Notices.
The Servicer will notify the Administrative Agent and each Lender in writing of any of the following events promptly upon (but in no event
later than three (3) Business Days after) a Financial Officer or other officer learning of the occurrence thereof, with such notice
describing the same, and if applicable, the steps being taken by the Person(s) affected with respect thereto:
(i) Notice
of Events of Default or Unmatured Events of Default. A statement of a Financial Officer of the Servicer setting forth details of any
Event of Default or Unmatured Event of Default that has occurred and is continuing and the action which the Servicer proposes to take
with respect thereto.
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(ii) Litigation.
The institution of any litigation, arbitration proceeding or governmental proceeding which could reasonably be expected to be determined
adversely and, if so determined, could reasonably be expected to have a Material Adverse Effect.
(iii) Adverse
Claim. (A) Any Person shall obtain an Adverse Claim upon the Collateral or any portion thereof, (B) any Person other
than the Borrower, the Servicer or the Administrative Agent shall obtain any rights or direct any action with respect to any Collection
Account (or related Lock-Box) or (C) any Obligor shall receive any change in payment instructions with respect to Pool Receivable(s) from
a Person other than the Servicer or the Administrative Agent.
(iv) Name
Changes. At least thirty (30) days before any change in the Borrower’s name or any other change requiring the amendment of UCC
financing statements filed against the Borrower, a notice setting forth such changes and the effective date thereof.
(v) Change
in Accountants or Accounting Policy. Any change in (i) the external accountants of the Borrower, the Servicer, any Originator,
Performance Guarantor or the Parent, (ii) any accounting policy of the Borrower or (iii) any material accounting policy of any
Originator that is relevant to the transactions contemplated by this Agreement or any other Transaction Document (it being understood
that any change to the manner in which any Originator accounts for the Pool Receivables shall be deemed “material” for such
purpose).
(vi) Termination
Event. The occurrence of a Purchase and Sale Termination Event.
(vii) Material
Adverse Change. Promptly after the occurrence thereof, notice of any Borrower Material Adverse Effect or Material Adverse Effect.
(c) Conduct
of Business. The Servicer will carry on and conduct its business in substantially the same manner and in substantially the same fields,
or fields complimentary or ancillary thereto, of enterprise as it is presently conducted, and will do all things necessary to remain duly
organized, validly existing and in good standing as a domestic limited liability company in its jurisdiction of organization and maintain
all requisite authority to conduct its business in each jurisdiction in which its business is conducted if the failure to have such authority
could reasonably be expected to have a Material Adverse Effect.
(d) Compliance
with Laws. The Servicer will comply with all Applicable Laws to which it may be subject if the failure to comply could reasonably
be expected to have a Material Adverse Effect.
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(e) Furnishing
of Information and Inspection of Receivables. The Servicer will furnish or cause to be furnished to the Administrative Agent, the
LC Bank and each Lender from time to time such information with respect to the Pool Receivables and the other Collateral as the Administrative
Agent, the LC Bank or any Lender may reasonably request. The Servicer will, at the Servicer’s expense, during regular business hours
with prior written notice, (i) permit the Administrative Agent, the LC Bank and each Lender or their respective agents or representatives
to (A) examine and make copies of and abstracts from all books and records relating to the Pool Receivables or other Collateral,
(B) visit the offices and properties of the Servicer for the purpose of examining such books and records and (C) discuss matters
relating to the Pool Receivables, the other Collateral or the Servicer’s performance hereunder or under the other Transaction Documents
to which it is a party with any of the officers, directors, employees or independent public accountants of the Servicer (provided that
representatives of the Servicer are present during such discussions) having knowledge of such matters and (ii) without limiting the
provisions of clause (i) above, during regular business hours, at the Servicer’s expense, upon prior written notice
from the Administrative Agent, permit certified public accountants or other auditors acceptable to the Administrative Agent to conduct
a review of its books and records with respect to the Pool Receivables and other Collateral; provided, that the Servicer shall
be required to reimburse the Administrative Agent for only one (1) combined review of the Borrower pursuant to Section 8.01(g) and
the Servicer, the Borrower and the Originators pursuant to clause (ii) above in any twelve-month period unless an Event of
Default has occurred and is continuing.
(f) Payments
on Receivables, Collection Accounts. The Servicer will at all times, instruct all Obligors to deliver payments on the Pool Receivables
to a Collection Account or a Lock-Box. The Servicer will, at all times, maintain such books and records necessary to identify Collections
received from time to time on Pool Receivables and to segregate such Collections from other property of the Servicer and the Originators.
If any payments on the Pool Receivables or other Collections are received by the Borrower, the Servicer or an Originator, it shall hold
such payments in trust for the benefit of the Administrative Agent, the Lenders and the other Secured Parties and promptly remit such
funds into a Collection Account; provided, however, that (x) no less than 98.0% of such payments received shall be
remitted to a Collection Account within one (1) Business Day after receipt and (y) no more than 2.0% of such payments received
shall be remitted to a Collection Account within five (5) Business Days after receipt. The Servicer shall not permit funds other
than Collections on Pool Receivables and other Collateral to be deposited into any Collection Account. If such funds are nevertheless
deposited into any Collection Account, the Servicer will within two (2) Business Days identify and transfer such funds to the appropriate
Person entitled to such funds. The Servicer will not, and will not permit the Borrower, any Originator or any other Person to commingle
Collections or other funds to which the Administrative Agent, any Lender or any other Secured Party is entitled, with any other funds.
The Servicer shall only add a Collection Account (or a related Lock-Box), or a Collection Account Bank to those listed on Schedule
II to this Agreement, if the Administrative Agent has received notice of such addition and an executed and acknowledged copy of an
Account Control Agreement (or an amendment thereto) from the applicable Collection Account Bank. The Servicer shall only terminate a Collection
Account Bank or close a Collection Account (or a related Lock-Box) with the prior written consent of the Administrative Agent.
(g) Extension
or Amendment of Pool Receivables. Except as otherwise permitted in Section 9.02, the Servicer will not alter the delinquency
status or adjust the Outstanding Balance or otherwise modify the terms of any Pool Receivable in any material respect, or amend, modify
or waive, in any material respect, any term or condition of any related Contract. The Servicer shall at its expense, timely and fully
perform and comply in all material respects with all provisions, covenants and other promises required to be observed by it under the
Contracts related to the Pool Receivables (if any), and timely and fully comply with the Credit and Collection Policy with regard to each
Pool Receivable and the related Contract.
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(h) Change
in Credit and Collection Policy. The Servicer will not make any material change in the Credit and Collection Policy that would be
reasonably expected to either (x) have a material adverse effect on the collectability of the Pool Receivables or (y) have a
Borrower Material Adverse Effect or a Material Adverse Effect, in each case, without the prior written consent of the Administrative Agent
and the Majority Lenders. Promptly following any material change in the Credit and Collection Policy, the Servicer will deliver a copy
of the updated Credit and Collection Policy to the Administrative Agent and each Lender.
(i) Records.
The Servicer will maintain and implement administrative and operating procedures (including an ability to recreate records evidencing
Pool Receivables and related Contracts in the event of the destruction of the originals thereof), and keep and maintain all documents,
books, records, computer tapes and disks and other information reasonably necessary or advisable for the collection of all Pool Receivables
(including records adequate to permit the daily identification of each Pool Receivable and all Collections of and adjustments to each
existing Pool Receivable).
(j) Identifying
of Records. The Servicer shall identify its master data processing records relating to Pool Receivables and related Contracts with
a legend that indicates that the Pool Receivables have been pledged in accordance with this Agreement.
(k) Change
in Payment Instructions to Obligors. The Servicer shall not (and shall not permit any Sub-Servicer to) add, replace or terminate any
Collection Account (or any related Lock-Box) or make any change in its instructions to the Obligors regarding payments to be made to the
Collection Accounts (or any related Lock-Box), other than any instruction to remit payments to a different Collection Account (or any
related Lock-Box), unless the Administrative Agent shall have received (i) prior written notice of such addition, termination or
change and (ii) a signed and acknowledged Account Control Agreement (or an amendment thereto) with respect to such new Collection
Accounts (or any related Lock-Box) in each case (x) in form and substance reasonably satisfactory to the Administrative Agent and
(y) in accordance with the terms hereof and, if applicable, such Account Control Agreement.
(l) Security
Interest, Etc. The Servicer shall, at its expense, take all action necessary to establish and maintain a valid and enforceable first
priority perfected security interest in the Receivables and that portion of the Collateral in which a security interest may be created
under the UCC and perfected by the filing of a financing statement under the UCC, in each case free and clear of any Adverse Claim in
favor of the Administrative Agent (on behalf of the Secured Parties), including taking such action to perfect, protect or more fully evidence
the security interest of the Administrative Agent (on behalf of the Secured Parties) as the Administrative Agent or any Secured Party
may reasonably request. In order to evidence the security interests of the Administrative Agent under this Agreement, the Servicer shall,
from time to time take such action, or execute (if necessary) and deliver such instruments as may be necessary (including, without limitation,
such actions as are reasonably requested by the Administrative Agent) to maintain and perfect, as a first-priority interest, the Administrative
Agent’s security interest in the Receivables and that portion of the Related Security and Collections in which a security interest
may be perfected by the filing of a financing statement under the UCC. The Servicer shall, from time to time and within the time limits
established by law, prepare and present to the Administrative Agent for the Administrative Agent’s authorization and approval, all
financing statements, amendments, continuations or initial financing statements in lieu of a continuation statement, or other filings
necessary to continue, maintain and perfect the Administrative Agent’s security interest as a first-priority interest. The Administrative
Agent’s approval of such filings shall authorize the Servicer to file such financing statements under the UCC without the signature
of the Borrower, any Originator or the Administrative Agent where allowed by Applicable Law. Notwithstanding anything else in the Transaction
Documents to the contrary, the Servicer shall not have any authority to file a termination, partial termination, release, partial release,
or any amendment that deletes the name of a debtor or excludes collateral of any such financing statements filed in connection with the
Transaction Documents, without the prior written consent of the Administrative Agent.
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(m) Further
Assurances; Change in Name or Jurisdiction of Origination, etc. The Servicer hereby authorizes and hereby agrees from time to
time, at its own expense, promptly to execute (if necessary) and deliver all further instruments and documents, and to take all further
actions, that may be necessary, or that the Administrative Agent may reasonably request, to perfect, protect or more fully evidence the
security interest granted pursuant to this Agreement or any other Transaction Document, or to enable the Administrative Agent (on behalf
of the Secured Parties) to exercise and enforce their respective rights and remedies under this Agreement or any other Transaction Document.
Without limiting the foregoing, the Servicer hereby authorizes, and will, upon the request of the Administrative Agent (with such request
being hereby deemed to be an authorization as to such filing by the Administrative Agent), at the Servicer’s own expense, execute
(if necessary) and file such financing statements or continuation statements, or amendments thereto, and such other instruments and documents,
that may be necessary or desirable, or that the Administrative Agent may reasonably request (with such request being hereby deemed to
be an authorization as to such filing by the Administrative Agent), to perfect, protect or evidence any of the foregoing.
(n) Sanctions
and other Anti-Terrorism Laws; Anti-Corruption Laws. The Servicer covenants and agrees that:
(a) it
shall as soon as reasonably practicable notify any Credit Party in writing upon learning of the occurrence of a Reportable Compliance
Event;
(b) if,
at any time, any Collateral becomes Embargoed Property, then, in addition to all other rights and remedies available to any Credit Party,
upon request by any Credit Party, it shall cause the Borrower to provide substitute Collateral acceptable to the Administrative Agent
that is not Embargoed Property;
(c) it
shall, and shall require each other Covered Entity to, conduct its business in compliance with all applicable Anti-Corruption Laws and
maintain or remain subject to policies and procedures reasonably designed to ensure compliance with such Anti-Corruption Laws;
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(d) it
and its Subsidiaries will not: (A) to it and its Subsidiaries’ knowledge, become a Sanctioned Person or knowingly allow any
employees, officers, directors, consultants, brokers, or agents, acting on its behalf in connection with this Agreement to become a Sanctioned
Person; (B) directly, or knowingly indirectly through a third party, engage in any transactions or other dealings with or for the
benefit of any Sanctioned Person or Sanctioned Jurisdiction, including any use of the proceeds of the Credit Extensions (x) for the
purpose of violating sanctions against a Sanctioned Jurisdiction, anti-money laundering rules and regulations, or any transactions
or other dealings that otherwise are prohibited by any Anti-Terrorism Laws, to the extent such activities would be prohibited by applicable
Anti-Terrorism Laws or (y) in any manner that could result in a violation by any Person of Anti-Corruption Law (including the Administrative
Agent, any Lender, underwriter, advisor, investor, or otherwise); (C) pay or repay any Borrower Obligations with Embargoed Property
or funds derived from any unlawful activity; or (D) cause any Credit Party to violate any Anti-Terrorism Law;
(e) it
will not, and will not permit any its Subsidiaries to, directly or knowingly indirectly, use the Credit Extensions or any proceeds thereof
for any purpose which would breach applicable Anti-Corruption Laws in any jurisdiction in which any Covered Entity conducts business;
and
(o) Taxes.
The Servicer will (i) timely file all tax returns (federal, state and local) required to be filed by it and (ii) pay, or cause
to be paid, all taxes, assessments and other governmental charges, if any, other than taxes, assessments and other governmental charges
being contested in good faith by appropriate proceedings and as to which adequate reserves have been provided in accordance with GAAP,
except in each case to the extent that such failure to file or pay could not reasonably be expected to have a Material Adverse Effect.
(p) Borrower’s
Tax Status. The Servicer shall not take or cause any action to be taken that could result in the Borrower (i) being treated other
than as a “disregarded entity” within the meaning of U.S. Treasury Regulation § 301.7701-3 for U.S. federal income tax
purposes or (ii) becoming an association taxable as a corporation or a publicly traded partnership taxable as a corporation for U.S.
federal income tax purposes.
(q) Federal
Assignment of Claims Act, Etc. If requested by the Administrative Agent at any time following the occurrence of an Event of Default,
the Servicer shall prepare and make any filings under the Federal Assignment of Claims Act (or any other similar Applicable Law, including
any state or municipal law or regulation) with respect to Receivables from Obligors that are Governmental Authorities, that are necessary
or desirable in order for the Administrative Agent to enforce such Receivable against the Obligor thereof.
SECTION 8.03. Separate
Existence of the Borrower. Each of the Borrower and the Servicer hereby acknowledges that the Credit Parties are entering into the
transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Borrower’s identity as a legal
entity separate from any Originator, the Servicer, the Performance Guarantor and their Affiliates. Therefore, each of the Borrower and
Servicer shall take all steps specifically required by this Agreement to continue the Borrower’s identity as a separate legal entity
and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of the Performance
Guarantor, the Originators, the Servicer and any other Person, and is not a division of the Performance Guarantor, the Originators, the
Servicer, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with
the other covenants set forth herein, each of the Borrower and the Servicer shall take such actions as shall be required in order that:
(a) Special
Purpose Entity. The Borrower will be a special purpose company whose primary activities are restricted in its Limited Liability Company
Agreement to: (i) purchasing or otherwise acquiring from the Originators, owning, holding, collecting, granting security interests
or selling interests in, the Collateral, (ii) entering into agreements for the selling, servicing and financing of the Receivables
Pool (including the Transaction Documents) and (iii) conducting such other activities as it deems necessary or appropriate to carry
out its primary activities.
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(b) No
Other Business or Debt. The Borrower shall not engage in any business or activity except as set forth in this Agreement nor, incur
any indebtedness or liability other than as expressly permitted by the Transaction Documents.
(c) Independent
Director. Not fewer than one member of the Borrower’s board of directors (the “Independent Director”) shall
be a natural person who (i) has never been, and shall at no time be, an equityholder, director, officer, manager, member, partner,
officer, employee or associate, or any immediate relative of the foregoing, of any member of the Parent Group (as hereinafter defined)
(other than his or her service as an Independent Director or “special member” of the Borrower or an independent director or
“special member” of any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating
the securitization of, financial assets of any member or members of the Parent Group), (ii) is not a material customer or supplier
of any member of the Parent Group (other than his or her service as an Independent Director of the Borrower or an independent director
of any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization
of, financial assets of any member or members of the Parent Group), (iii) is not a member of the immediate family of any person described
in (ii) above, and (iv) has (x) prior experience as an independent director for a corporation or limited liability
company whose organizational or charter documents required the unanimous consent of all independent directors thereof before such corporation
or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition
seeking relief under any applicable federal or state law relating to bankruptcy and (y) at least three years of employment experience
with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services
to issuers of securitization or structured finance instruments, agreements or securities. For purposes of this clause (c), “Parent
Group” shall mean (i) the Parent, the Servicer, the Performance Guarantor and each Originator, (ii) each person that
directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, five percent (5%) or more
of the Capital Stock in the Parent, (iii) each person that controls, is controlled by or is under common control with the Parent
and (iv) each of such person’s officers, directors, managers, joint venturers and partners; provided that the term Parent
Group shall not include any Person or relationship which exists solely as a result of direct or indirect ownership of, or control by,
one or more common Initial Investors. For the purposes of this definition, “control” of a person means the possession, directly
or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the
ownership of voting securities, by contract or otherwise. A person shall be deemed to be an “associate” of (A) a corporation
or organization of which such person is an officer, director, partner or manager or is, directly or indirectly, the beneficial owner of
ten percent (10%) or more of any class of equity securities, (B) any trust or other estate in which such person serves as trustee
or in a similar capacity and (C) any relative or spouse of a person described in clause (A) or (B) of this
sentence, or any immediate relative of such spouse.
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The Borrower shall (A) give
written notice to the Administrative Agent of the election or appointment, or proposed election or appointment, of a new Independent Director
of the Borrower, which notice shall be given not later than ten (10) Business Days prior to the date such appointment or election
would be effective (except when such election or appointment is necessary to fill a vacancy caused by the death, disability, or incapacity
of the existing Independent Director, or the failure of such Independent Director to satisfy the criteria for an Independent Director
set forth in this clause (c), in which case the Borrower shall provide written notice of such election or appointment within one
(1) Business Day) and (B) with any such written notice, certify to the Administrative Agent that the Independent Director satisfies
the criteria for an Independent Director set forth in this clause (c).
The Borrower’s Limited
Liability Company Agreement shall provide that: (A) the Borrower’s board of directors shall not approve, or take any other
action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Director shall approve
the taking of such action in writing before the taking of such action and (B) such provision and each other provision requiring an
Independent Director cannot be amended without the prior written consent of the Independent Director.
The Independent Director shall
not at any time serve as a trustee in bankruptcy for the Borrower, the Parent, the Performance Guarantor, any Originator, the Servicer
or any of their respective Affiliates.
(d) Organizational
Documents. The Borrower shall maintain its organizational documents in conformity with this Agreement, such that it does not amend,
restate, supplement or otherwise modify its ability to comply with the terms and provisions of any of the Transaction Documents, including,
without limitation, Section 8.01(p).
(e) Conduct
of Business. The Borrower shall conduct its affairs strictly in accordance with its organizational documents and observe all necessary,
appropriate and customary company formalities, including, but not limited to, holding all regular and special members’ and board
of directors’ meetings appropriate to authorize all company action, keeping separate and accurate minutes of its meetings, passing
all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records
and accounts, including, but not limited to, payroll and intercompany transaction accounts.
(f) Compensation.
Any employee, consultant or agent of the Borrower will be compensated from the Borrower’s funds for services provided to the Borrower,
and to the extent that Borrower shares the same employees as the Servicer (or any other Affiliate thereof), the salaries and expenses
relating to providing benefits to such employees shall be fairly allocated among such entities, and each such entity shall bear its fair
share of the salary and benefit costs associated with such common employees. The Borrower will not engage any agents other than its attorneys,
auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables Pool,
which servicer will be fully compensated for its services by payment of the Servicing Fee.
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(g) Servicing
and Costs. The Borrower will contract with the Servicer to perform for the Borrower all operations required on a daily basis to service
the Receivables Pool. The Borrower will not incur any indirect or overhead expenses for items shared with the Servicer (or any other Affiliate
thereof) that are not reflected in the Servicing Fee. To the extent, if any, that the Borrower (or any Affiliate thereof) shares items
of expenses not reflected in the Servicing Fee, such as legal, auditing and other professional services, such expenses will be allocated
to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the
actual use or the value of services rendered.
(h) Operating
Expenses. The Borrower’s operating expenses will not be paid by the Servicer, the Parent, the Performance Guarantor, any Originator
or any Affiliate thereof.
(i) Stationery.
The Borrower will have its own separate stationery.
(j) Books
and Records. The Borrower’s books and records will be maintained separately from those of the Servicer, the Parent, the Performance
Guarantor, the Originators and any of their Affiliates and in a manner such that it will not be difficult or costly to segregate, ascertain
or otherwise identify the assets and liabilities of the Borrower.
(k) Disclosure
of Transactions. All financial statements of the Servicer, the Parent, the Performance Guarantor, the Originators or any Affiliate
thereof that are consolidated to include the Borrower will disclose that (i) the Borrower’s sole business consists of the purchase
or acceptance through capital contributions of the Receivables and Related Rights from the Originators and the subsequent retransfer of
or granting of a security interest in such Receivables and Related Rights to the Administrative Agent pursuant to this Agreement, (ii) the
Borrower is a separate legal entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of
the Borrower’s assets prior to any assets or value in the Borrower becoming available to the Borrower’s equity holders and
(iii) the assets of the Borrower are not available to pay creditors of the Servicer, the Parent, the Performance Guarantor, the Originators
or any Affiliate thereof.
(l) Segregation
of Assets. The Borrower’s assets will be maintained in a manner that facilitates their identification and segregation from those
of the Servicer, the Parent, the Performance Guarantor, the Originators or any Affiliates thereof.
(m) Corporate
Formalities. The Borrower will strictly observe limited liability company formalities in its dealings with the Servicer, the Parent,
the Performance Guarantor, the Originators or any Affiliates thereof, and funds or other assets of the Borrower will not be commingled
with those of the Servicer, the Parent, the Performance Guarantor, the Originators or any Affiliates thereof except as permitted by this
Agreement in connection with servicing the Pool Receivables. The Borrower shall not maintain joint bank accounts or other depository accounts
to which the Servicer, the Parent, the Performance Guarantor, the Originators or any Affiliate thereof (other than the Servicer solely
in its capacity as such) has independent access. The Borrower is not named, and has not entered into any agreement to be named, directly
or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property
of the Servicer, the Parent, the Performance Guarantor, the Originators or any Subsidiaries or other Affiliates thereof. The Borrower
will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the
premium payable with respect to any insurance policy that covers the Borrower and such Affiliate.
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(n) Arm’s-Length
Relationships. The Borrower will maintain arm’s-length relationships with the Servicer, the Parent, the Performance Guarantor,
the Originators and any Affiliates thereof. Any Person that renders or otherwise furnishes services to the Borrower will be compensated
by the Borrower at market rates for such services it renders or otherwise furnishes to the Borrower. Neither the Borrower on the one hand,
nor the Servicer, the Parent, the Performance Guarantor, any Originator or any Affiliate thereof, on the other hand, will be or will hold
itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other.
The Borrower, the Servicer, the Parent, the Performance Guarantor, the Originators and their respective Affiliates will immediately correct
any known misrepresentation with respect to the foregoing, and they will not operate or purport to operate as an integrated single economic
unit with respect to each other or in their dealing with any other entity.
(o) Allocation
of Overhead. To the extent that Borrower, on the one hand, and the Servicer, the Parent, the Performance Guarantor, any Originator
or any Affiliate thereof, on the other hand, have offices in the same location, the Borrower shall pay a fair and appropriate allocation
of overhead costs between it and them, and the Borrower shall bear its fair share of such expenses, which may be paid through the Servicing
Fee or otherwise.
ARTICLE IX
ADMINISTRATION
AND COLLECTION
OF RECEIVABLES
SECTION 9.01. Appointment
of the Servicer.
(a) The
servicing, administering and collection of the Pool Receivables shall be conducted by the Person so designated from time to time as the
Servicer in accordance with this Section 9.01. Until the Administrative Agent gives notice to BrightView (in accordance with
this Section 9.01) of the designation of a new Servicer, BrightView is hereby designated as, and hereby agrees to perform
the duties and obligations of, the Servicer pursuant to the terms hereof. Upon the occurrence of an Event of Default, the Administrative
Agent may (with the consent of the Majority Lenders) and shall (at the direction of the Majority Lenders) designate as Servicer any Person
(including itself) to succeed BrightView or any successor Servicer, on the condition in each case that any such Person so designated shall
agree to perform the duties and obligations of the Servicer pursuant to the terms hereof.
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(b) Upon
the designation of a successor Servicer as set forth in clause (a) above, BrightView agrees that it will terminate its activities
as Servicer hereunder in a manner that the Administrative Agent reasonably determines will facilitate the transition of the performance
of such activities to the new Servicer, and BrightView shall cooperate with and assist such new Servicer. Such cooperation shall include
access to and transfer of records (including all Contracts) related to Pool Receivables and use by the new Servicer of all licenses (or
the obtaining of new licenses), hardware or software necessary or reasonably desirable to collect the Pool Receivables and the Related
Security.
(c) BrightView
acknowledges that, in making its decision to execute and deliver this Agreement, the Administrative Agent and each Lender have relied
on BrightView’s agreement to act as Servicer hereunder. Accordingly, BrightView agrees that it will not voluntarily resign as Servicer
without the prior written consent of the Administrative Agent and the Majority Lenders.
(d) The
Servicer may delegate its duties and obligations hereunder to any subservicer (each a “Sub-Servicer”); provided,
that, in each such delegation: (i) such Sub-Servicer shall agree in writing to perform the delegated duties and obligations of the
Servicer pursuant to the terms hereof, (ii) the Servicer shall remain liable for the performance of the duties and obligations so
delegated, (iii) the Borrower, the Administrative Agent and each Lender shall have the right to look solely to the Servicer for performance,
(iv) the terms of any agreement with any Sub-Servicer shall provide that the Administrative Agent may terminate such agreement upon
the termination of the Servicer hereunder by giving notice of its desire to terminate such agreement to the Servicer (and the Servicer
shall provide appropriate notice to each such Sub-Servicer) and (v) if such Sub-Servicer is not an Affiliate of the Parent, the Administrative
Agent and the Majority Lenders shall have consented in writing in advance to such delegation.
SECTION 9.02. Duties
of the Servicer.
(a) The
Servicer shall take or cause to be taken all such action as may be necessary to service, administer and collect each Pool Receivable from
time to time, all in accordance with this Agreement and all Applicable Laws, with reasonable care and diligence, and in accordance with
the Credit and Collection Policy and consistent with the past practices of the Originators. The Servicer shall set aside, for the accounts
of each Secured Party, the amount of Collections to which each such Secured Party is entitled in accordance with Article IV
hereof. The Servicer may, in accordance with the Credit and Collection Policy and consistent with past practices of the Originators, take
such action, including modifications, waivers or restructurings of Pool Receivables and related Contracts, as the Servicer may reasonably
determine to be appropriate to maximize Collections thereof or reflect adjustments expressly permitted under the Credit and Collection
Policy or as expressly required under Applicable Laws or the applicable Contract; provided, that for purposes of this Agreement:
(i) such action shall not, and shall not be deemed to, change the number of days such Pool Receivable has remained unpaid from the
date of the original due date related to such Pool Receivable, (ii) such action shall not alter the status of such Pool Receivable
as a Delinquent Receivable or a Defaulted Receivable or limit the rights of any Secured Party under this Agreement or any other Transaction
Document and (iii) if an Event of Default has occurred and is continuing, the Servicer may take such action only upon the prior written
consent of the Administrative Agent. The Borrower shall deliver to the Servicer and the Servicer shall hold for the benefit of the Administrative
Agent (individually and for the benefit of each Secured Party), in accordance with their respective interests, all records and documents
(including computer tapes or disks) with respect to each Pool Receivable.
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(b) The
Servicer shall, as soon as practicable following actual receipt of collected funds, turn over to the Borrower the collections of any indebtedness
that is not a Pool Receivable, less, if BrightView or an Affiliate thereof is not the Servicer, all reasonable and appropriate out-of-pocket
costs and expenses of such Servicer of servicing, collecting and administering such collections. The Servicer, if other than BrightView
or an Affiliate thereof, shall, as soon as practicable upon demand, deliver to the Borrower all records in its possession that evidence
or relate to any indebtedness that is not a Pool Receivable, and copies of records in its possession that evidence or relate to any indebtedness
that is a Pool Receivable.
(c) The
Servicer’s obligations hereunder shall terminate on the Final Payout Date. Promptly following the Final Payout Date, the Servicer
shall deliver to the Borrower all books, records and related materials that the Borrower previously provided to the Servicer, or that
have been obtained by the Servicer, in connection with this Agreement.
SECTION 9.03. Collection
Account Arrangements. Prior to the Closing Date, the Borrower shall have entered into Account Control Agreements with all of the Collection
Account Banks and delivered executed counterparts of each to the Administrative Agent. Upon the occurrence and during the continuance
of an Unmatured Event of Default or an Event of Default, the Administrative Agent may (with the consent of the Majority Lenders) and shall
(upon the direction of the Majority Lenders) at any time thereafter give notice to each Collection Account Bank that the Administrative
Agent is exercising its rights under the Account Control Agreements to do any or all of the following: (a) to have the exclusive
dominion and control of the Collection Accounts transferred to the Administrative Agent (for the benefit of the Secured Parties) and to
exercise exclusive dominion and control over the funds deposited therein (for the benefit of the Secured Parties), (b) to have the
proceeds that are sent to the respective Collection Accounts redirected pursuant to the Administrative Agent’s instructions rather
than deposited in the applicable Collection Account and (c) to take any or all other actions permitted under the applicable Account
Control Agreement. The Borrower hereby agrees that if the Administrative Agent at any time takes any action set forth in the preceding
sentence, the Administrative Agent shall have exclusive control (for the benefit of the Secured Parties) of the proceeds (including Collections)
of all Pool Receivables and the Borrower hereby further agrees to take any other action that the Administrative Agent may reasonably request
to transfer such control. Any proceeds of Pool Receivables received by the Borrower or the Servicer thereafter shall be sent immediately
to, or as otherwise instructed by, the Administrative Agent.
SECTION 9.04. Enforcement
Rights.
(a) At
any time following the occurrence and during the continuation of an Event of Default:
(i) the
Administrative Agent (at the Borrower’s expense) may direct the Obligors that payment of all amounts payable under any Pool Receivable
is to be made directly to the Administrative Agent or its designee;
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(ii) the
Administrative Agent may instruct the Borrower or the Servicer to give notice of the Secured Parties’ interest in Pool Receivables
to each Obligor, which notice shall direct that payments be made directly to the Administrative Agent or its designee (on behalf of the
Secured Parties), and the Borrower or the Servicer, as the case may be, shall give such notice at the expense of the Borrower or the Servicer,
as the case may be; provided, that if the Borrower or the Servicer, as the case may be, fails to so notify each Obligor within
two (2) Business Days following instruction by the Administrative Agent, the Administrative Agent (at the Borrower’s or the
Servicer’s, as the case may be, expense) may so notify the Obligors;
(iii) the
Administrative Agent may request the Servicer to, and upon such request the Servicer shall: (A) assemble all of the records necessary
to collect the Pool Receivables and the Related Security, and transfer or license to a successor Servicer the use of all software necessary
to collect the Pool Receivables and the Related Security, and make the same available to the Administrative Agent or its designee (for
the benefit of the Secured Parties) at a place selected by the Administrative Agent and (B) segregate all cash, checks and other
instruments received by it from time to time constituting Collections in a manner reasonably acceptable to the Administrative Agent and,
promptly upon receipt, remit all such cash, checks and instruments, duly endorsed or with duly executed instruments of transfer, to the
Administrative Agent or its designee;
(iv) the
Administrative Agent may notify the Collection Account Banks that the Borrower and the Servicer will no longer have any access to the
Collection Accounts;
(v) the
Administrative Agent may (or, at the direction of the Majority Lenders shall) replace the Person then acting as Servicer; and
(vi) the
Administrative Agent may collect any amounts due from an Originator under the Purchase and Sale Agreement or the Performance Guarantor
under the Performance Guaranty.
For the avoidance of doubt,
the foregoing rights and remedies of the Administrative Agent upon an Event of Default are in addition to and not exclusive of the rights
and remedies contained herein and under the other Transaction Documents.
(b) The
Borrower hereby authorizes the Administrative Agent (on behalf of the Secured Parties), and irrevocably appoints the Administrative Agent
as its attorney-in-fact with full power of substitution and with full authority in the place and stead of the Borrower, which appointment
is coupled with an interest, to take any and all steps in the name of the Borrower and on behalf of the Borrower necessary or desirable,
in the reasonable determination of the Administrative Agent, after the occurrence and during the continuation of an Event of Default,
to collect any and all amounts or portions thereof due under any and all Collateral, including endorsing the name of the Borrower on checks
and other instruments representing Collections and enforcing such Collateral. Notwithstanding anything to the contrary contained in this
subsection, none of the powers conferred upon such attorney-in-fact pursuant to the preceding sentence shall subject such attorney-in-fact
to any liability if any action taken by it shall prove to be inadequate or invalid, nor shall they confer any obligations upon such attorney-in-fact
in any manner whatsoever.
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(c) The
Servicer hereby authorizes the Administrative Agent (on behalf of the Secured Parties), and irrevocably appoints the Administrative Agent
as its attorney-in-fact with full power of substitution and with full authority in the place and stead of the Servicer, which appointment
is coupled with an interest, to take any and all steps in the name of the Servicer and on behalf of the Servicer necessary or desirable,
in the reasonable determination of the Administrative Agent, after the occurrence and during the continuation of an Event of Default,
to collect any and all amounts or portions thereof due under any and all Collateral, including endorsing the name of the Servicer on checks
and other instruments representing Collections and enforcing such Collateral. Notwithstanding anything to the contrary contained in this
subsection, none of the powers conferred upon such attorney-in-fact pursuant to the preceding sentence shall subject such attorney-in-fact
to any liability if any action taken by it shall prove to be inadequate or invalid, nor shall they confer any obligations upon such attorney-in-fact
in any manner whatsoever.
SECTION 9.05. Responsibilities
of the Borrower.
(a) Anything
herein to the contrary notwithstanding, the Borrower shall: pay when due any taxes, including any sales taxes payable in connection with
the Pool Receivables and their creation and satisfaction. None of the Credit Parties shall have any obligation or liability with respect
to any Collateral, nor shall any of them be obligated to perform any of the obligations of the Borrower, the Servicer or any Originator
thereunder.
(b) BrightView
hereby irrevocably agrees that if at any time it shall cease to be the Servicer hereunder, it shall act (if the then-current Servicer
so requests) as the data-processing agent of the Servicer and, in such capacity, BrightView shall conduct the data-processing functions
of the administration of the Receivables and the Collections thereon in substantially the same way that BrightView conducted such data-processing
functions while it acted as the Servicer. In connection with any such processing functions, the Borrower shall pay to BrightView its reasonable
out-of-pocket costs and expenses from the Borrower’s own funds (subject to the priority of payments set forth in Section 4.01).
SECTION 9.06. Servicing
Fee.
(a) Subject
to clause (b) below, the Borrower shall pay the Servicer a fee (the “Servicing Fee”) equal to 1.00% per
annum (the “Servicing Fee Rate”) of the daily average aggregate Outstanding Balance of the Pool Receivables. Accrued
Servicing Fees shall be payable from Collections to the extent of available funds in accordance with Section 4.01.
(b) If
the Servicer ceases to be BrightView or an Affiliate thereof, the Servicing Fee shall be the greater of: (i) the amount calculated
pursuant to clause (a) above and (ii) an alternative amount specified by the successor Servicer not to exceed 110% of
the aggregate reasonable costs and expenses incurred by such successor Servicer in connection with the performance of its obligations
as Servicer hereunder.
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ARTICLE X
EVENTS
OF DEFAULT
SECTION 10.01. Events
of Default. If any of the following events (each an “Event of Default”) shall occur:
(a) (i) the
Borrower, any Originator, the Performance Guarantor or the Servicer shall fail to perform or observe any term, covenant or agreement under
this Agreement or any other Transaction Document (other than any such failure which would constitute an Event of Default under clause
(ii) or (iii) of this paragraph (a)), and such failure, solely to the extent capable of cure, shall continue
for five (5) Business Days, (ii) the Borrower, any Originator, the Performance Guarantor or the Servicer shall fail to make
when due any payment (including reimbursement with respect to amounts drawn under Letters of Credit) or deposit to be made by it under
this Agreement or any other Transaction Document and such failure shall continue unremedied for two (2) Business Days or (iii) BrightView
shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Administrative Agent shall have been appointed;
(b) any
representation or warranty made or deemed made by the Borrower, any Originator, the Performance Guarantor or the Servicer (or any of their
respective officers) under or in connection with this Agreement or any other Transaction Document or any information or report delivered
by the Borrower, any Originator, the Performance Guarantor or the Servicer pursuant to this Agreement or any other Transaction Document,
shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered;
(c) the
Borrower or the Servicer shall fail to deliver a Monthly Report or Interim Report pursuant to this Agreement, and such failure shall remain
unremedied for two (2) Business Days;
(d) this
Agreement or any security interest granted pursuant to this Agreement or any other Transaction Document shall for any reason cease to
create, or for any reason cease to be, a valid and enforceable first priority perfected security interest in favor of the Administrative
Agent with respect to the Collateral, free and clear of any Adverse Claim;
(e) the
Borrower, any Originator, the Performance Guarantor or the Servicer shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any Insolvency
Proceeding shall be instituted by or against the Borrower, any Originator, the Performance Guarantor or the Servicer and, in the case
of any such proceeding instituted against any Originator, the Performance Guarantor or the Servicer (but not instituted by such Person),
either such proceeding is not controverted within thirty (30) days after commencement of such proceeding or shall remain undismissed or
unstayed for a period of sixty (60) consecutive days, or any of the actions sought in such proceeding (including the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part
of its property) shall occur; or the Borrower, any Originator, the Performance Guarantor or the Servicer shall take any corporate or organizational
action to authorize any of the actions set forth above in this paragraph;
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(f) (i) the
average for three consecutive Fiscal Months of: (A) the Default Ratio shall exceed 4.0%, (B) the Delinquency Ratio shall exceed
13.0% or (C) the Dilution Ratio shall exceed 8.00% or (ii) the Days’ Sales Outstanding shall exceed 60 days;
(g) a
Change in Control shall occur;
(h) a
Borrowing Base Deficit shall occur, and shall not have been cured within two (2) Business Days;
(i) (i) the
Borrower shall fail to pay any principal of or premium or interest on any of its Debt when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt (whether or not such failure shall
have been waived under the related agreement); (ii) any Originator, the Performance Guarantor or the Servicer, or any of their respective
Subsidiaries, individually or in the aggregate, shall fail to pay any principal of or premium or interest on (x) any Debt under the
Credit Agreement or (y) any of its other Debt that is outstanding in a principal amount of at least the greater of (I) $45,000,000
and (II) 15% of the Consolidated EBITDA of Holdings for the most recently ended Test Period (calculated on a Pro Forma Basis), in
the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise),
and such failure shall continue after the applicable grace period, if any, specified in the Credit Agreement or such agreement, mortgage,
indenture or instrument relating to such Debt (whether or not such failure shall have been waived under the related agreement); (iii) any
other event shall occur or condition shall exist under the Credit Agreement or any other agreement, mortgage, indenture or instrument
relating to any such Debt (as referred to in clause (i) or (ii) of this paragraph) and shall continue after the
applicable grace period (not to exceed 30 days), if any, specified in the Credit Agreement or such other agreement, mortgage, indenture
or instrument (whether or not such failure shall have been waived under the related agreement), if the effect of such event or condition
is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt (as referred to in
clause (i) or (ii) of this paragraph) or to terminate the commitment of any lender thereunder, or (iv) any
such Debt (as referred to in clause (i) or (ii) of this paragraph) shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay,
redeem, purchase or defease such Debt shall be required to be made or the commitment of any lender thereunder terminated, in each case
before the stated maturity thereof;
(j) any
“Event of Default” (as defined in the Credit Agreement) shall occur under the Credit Agreement (for the avoidance of doubt,
this clause (j) shall not be construed to limit the preceding clause (i));
(k) the
Performance Guarantor shall fail to perform any of its obligations under the Performance Guaranty and such failure shall continue unremedied
for two (2) Business Days;
(l) the
Borrower shall fail (x) at any time (other than for ten (10) Business Days following notice of the death or resignation of any
Independent Director) to have an Independent Director who satisfies each requirement and qualification specified in Section 8.03(c) of
this Agreement for Independent Directors, on the Borrower’s board of directors or (y) to timely notify the Administrative Agent
of any replacement or appointment of any director that is to serve as an Independent Director on the Borrower’s board of directors
as required pursuant to Section 8.03(c) of this Agreement;
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(m) [reserved];
(n) either
(i) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any assets
of the Borrower, any Originator or the Parent or (ii) the PBGC shall, or shall indicate its intention to, file notice of a lien pursuant
to Section 4068 of ERISA with regard to any of the assets of the Borrower, the Servicer, any Originator or the Parent;
(o) (i) the
occurrence of a Reportable Event; (ii) the adoption of an amendment to a Pension Plan that would require the provision of security
pursuant to Section 401(a)(29) of the Code; (iii) the existence with respect to any Multiemployer Plan of an “accumulated
funding deficiency” (as defined in Section 431 of the Code or Section 304 of ERISA), whether or not waived; (iv) the
failure to satisfy the minimum funding standard under Section 412 of the Code with respect to any Pension Plan (v) the incurrence
of any liability under Title IV of ERISA with respect to the termination of any Pension Plan or the withdrawal or partial withdrawal of
any of the Borrower, any Originator, the Servicer, the Parent or any of their respective ERISA Affiliates from any Multiemployer Plan;
(vi) the receipt by any of the Borrower, any Originator, the Servicer, the Parent or any of their respective ERISA Affiliates from
the PBGC or any plan administrator of any notice relating to the intention to terminate any Pension Plan or Multiemployer Plan or to appoint
a trustee to administer any Pension Plan or Multiemployer Plan; (vii) the receipt by the Borrower, any Originator, the Servicer,
the Parent or any of their respective ERISA Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Title IV of ERISA; (viii) the occurrence of a
prohibited transaction with respect to any of the Borrower, any Originator, the Servicer, the Parent or any of their respective ERISA
Affiliates (pursuant to Section 4975 of the Code); (ix) the occurrence or existence of any other similar event or condition
with respect to a Pension Plan or a Multiemployer Plan, with respect to each of clause (i) through (ix), either individually
or in the aggregate, could reasonably be expected to result in a Material Adverse Effect or a Borrower Material Adverse Effect;
(p) a
Material Adverse Effect shall occur and remain unremedied for ten (10) Business Days or a Borrower Material Adverse Effect shall
occur;
(q) a
Purchase and Sale Termination Event shall occur under the Purchase and Sale Agreement;
(r) the
Borrower shall (x) be required to register as an “investment company” within the meaning of the Investment Company Act
or (y) become a “covered fund” within the meaning of the Volcker Rule;
(s) any
material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect or any of the Borrower,
any Originator, the Performance Guarantor or the Servicer (or any of their respective Affiliates) shall so state in writing;
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(t) one
or more judgments or decrees shall be entered against the Borrower, any Originator, the Performance Guarantor or the Servicer, or any
Affiliate of any of the foregoing involving in the aggregate a liability (not paid or to the extent not covered by a reputable and solvent
insurance company) and such judgments and decrees either shall be final and non-appealable or shall not be vacated, discharged or stayed
or bonded pending appeal for any period of thirty (30) consecutive days, and the aggregate amount of all such judgments equals or exceeds
the greater of (I) $45,000,000 and (II) 15% of the Consolidated EBITDA of Holdings for the most recently ended Test Period (calculated
on a Pro Forma Basis) (or solely with respect to the Borrower, $15,325); or
(u) a
Financial Covenant Event shall occur; then, and in any such event, the Administrative Agent may (or, at the direction of the Majority
Lenders shall) by notice to the Borrower (x) declare the Termination Date to have occurred (in which case the Termination Date shall
be deemed to have occurred), (y) declare the Final Maturity Date to have occurred (in which case the Final Maturity Date shall be
deemed to have occurred) and (z) declare the Aggregate Capital and all other Borrower Obligations to be immediately due and payable
(in which case the Aggregate Capital and all other Borrower Obligations shall be immediately due and payable); provided that, automatically
upon the occurrence of any event (without any requirement for the giving of notice) described in subsection (e) of this Section 10.01
with respect to the Borrower, the Termination Date shall occur and the Aggregate Capital and all other Borrower Obligations shall be immediately
due and payable. Upon any such declaration or designation or upon such automatic termination, the Administrative Agent and the other Secured
Parties shall have, in addition to the rights and remedies which they may have under this Agreement and the other Transaction Documents,
all other rights and remedies provided after default under the UCC and under other Applicable Law, which rights and remedies shall be
cumulative. Any proceeds from liquidation of the Collateral shall be applied in the order of priority set forth in Section 4.01.
ARTICLE XI
THE
ADMINISTRATIVE AGENT
SECTION 11.01. Authorization
and Action. Each Credit Party hereby appoints and authorizes the Administrative Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers
as are reasonably incidental thereto. The Administrative Agent shall not have any duties other than those expressly set forth in the Transaction
Documents, and no implied obligations or liabilities shall be read into any Transaction Document, or otherwise exist, against the Administrative
Agent. The Administrative Agent does not assume, nor shall it be deemed to have assumed, any obligation to, or relationship of trust or
agency with, the Borrower or any Affiliate thereof or any Credit Party except for any obligations expressly set forth herein. Notwithstanding
any provision of this Agreement or any other Transaction Document, in no event shall the Administrative Agent ever be required to take
any action which exposes the Administrative Agent to personal liability or which is contrary to any provision of any Transaction Document
or Applicable Law.
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SECTION 11.02. Administrative
Agent’s Reliance, Etc. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by it or them as Administrative Agent under or in connection with this Agreement (including,
without limitation, the Administrative Agent’s servicing, administering or collecting Pool Receivables in the event it replaces
the Servicer in such capacity pursuant to Section 9.01), in the absence of its or their own gross negligence or willful misconduct.
Without limiting the generality of the foregoing, the Administrative Agent: (a) may consult with legal counsel (including counsel
for any Credit Party or the Servicer), independent certified public accountants and other experts selected by it and shall not be liable
for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts;
(b) makes no warranty or representation to any Credit Party (whether written or oral) and shall not be responsible to any Credit
Party for any statements, warranties or representations (whether written or oral) made by any other party in or in connection with this
Agreement; (c) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants
or conditions of this Agreement on the part of any Credit Party or to inspect the property (including the books and records) of any Credit
Party; (d) shall not be responsible to any Credit Party for the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any other instrument or document furnished pursuant hereto; and (e) shall be entitled to rely, and
shall be fully protected in so relying, upon any notice (including notice by telephone), consent, certificate or other instrument or writing
(which may be by facsimile) believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 11.03. Administrative
Agent and Affiliates. With respect to any Credit Extension or interests therein owned by any Credit Party that is also the Administrative
Agent, such Credit Party shall have the same rights and powers under this Agreement as any other Credit Party and may exercise the same
as though it were not the Administrative Agent. The Administrative Agent and any of its Affiliates may generally engage in any kind of
business with the Borrower or any Affiliate thereof and any Person who may do business with or own securities of the Borrower or any Affiliate
thereof, all as if the Administrative Agent were not the Administrative Agent hereunder and without any duty to account therefor to any
other Secured Party.
SECTION 11.04. Indemnification
of Administrative Agent. Each Lender agrees to indemnify the Administrative Agent (to the extent not reimbursed by the Borrower or
any Affiliate thereof), ratably according to the respective Percentage of such Lender, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement or any other
Transaction Document or any action taken or omitted by the Administrative Agent under this Agreement or any other Transaction Document;
provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s gross negligence or willful misconduct.
SECTION 11.05. Delegation
of Duties. The Administrative Agent may execute any of its duties through agents or attorneys-in-fact and shall be entitled to advice
of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care.
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SECTION 11.06. Action
or Inaction by Administrative Agent. The Administrative Agent shall in all cases be fully justified in failing or refusing to take
action under any Transaction Document unless it shall first receive such advice or concurrence of the Lenders and assurance of its indemnification
by the Lenders, as it deems appropriate. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Transaction Document in accordance with a request or at the direction of the Lenders and such
request or direction and any action taken or failure to act pursuant thereto shall be binding upon all Credit Parties. The Credit Parties
and the Administrative Agent agree that unless any action to be taken by the Administrative Agent under a Transaction Document (i) specifically
requires the advice or concurrence of all Lenders or (ii) may be taken by the Administrative Agent alone or without any advice or
concurrence of any Lender, then the Administrative Agent may take action based upon the advice or concurrence of the Majority Lenders.
SECTION 11.07. Notice
of Events of Default; Action by Administrative Agent. The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Unmatured Event of Default or Event of Default unless the Administrative Agent has received notice from any Credit
Party or the Borrower stating that an Unmatured Event of Default or Event of Default has occurred hereunder and describing such Unmatured
Event of Default or Event of Default. If the Administrative Agent receives such a notice, it shall promptly give notice thereof to each
Lender, whereupon each Lender shall promptly give notice thereof to its respective LC Participant(s). The Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such action, concerning an Unmatured Event of Default or Event of
Default or any other matter hereunder as the Administrative Agent deems advisable and in the best interests of the Secured Parties.
SECTION 11.08. Non-Reliance
on Administrative Agent and Other Parties. Each Credit Party expressly acknowledges that neither the Administrative Agent nor any
of its directors, officers, agents or employees has made any representations or warranties to it and that no act by the Administrative
Agent hereafter taken, including any review of the affairs of the Borrower or any Affiliate thereof, shall be deemed to constitute any
representation or warranty by the Administrative Agent. Each Credit Party represents and warrants to the Administrative Agent that, independently
and without reliance upon the Administrative Agent or any other Credit Party and based on such documents and information as it has deemed
appropriate, it has made and will continue to make its own appraisal of and investigation into the business, operations, property, prospects,
financial and other conditions and creditworthiness of the Borrower, each Originator, the Performance Guarantor or the Servicer and the
Pool Receivables and its own decision to enter into this Agreement and to take, or omit, action under any Transaction Document. Except
for items expressly required to be delivered under any Transaction Document by the Administrative Agent to any Credit Party, the Administrative
Agent shall not have any duty or responsibility to provide any Credit Party with any information concerning the Borrower, any Originator,
the Performance Guarantor or the Servicer that comes into the possession of the Administrative Agent or any of its directors, officers,
agents, employees, attorneys-in-fact or Affiliates.
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SECTION 11.09. Successor
Administrative Agent.
(a) The
Administrative Agent may, upon at least thirty (30) days’ notice to the Borrower, the Servicer and each Lender, resign as Administrative
Agent. Except as provided below, such resignation shall not become effective until a successor Administrative Agent is appointed by the
Majority Lenders as a successor Administrative Agent and has accepted such appointment. If no successor Administrative Agent shall have
been so appointed by the Majority Lenders, within thirty (30) days after the departing Administrative Agent’s giving of notice of
resignation, the departing Administrative Agent may, on behalf of the Secured Parties, appoint a successor Administrative Agent as successor
Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Majority Lenders within sixty (60) days
after the departing Administrative Agent’s giving of notice of resignation, the departing Administrative Agent may, on behalf of
the Secured Parties, petition a court of competent jurisdiction to appoint a successor Administrative Agent.
(b) Upon
such acceptance of its appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative
Agent shall succeed to and become vested with all the rights and duties of the resigning Administrative Agent, and the resigning Administrative
Agent shall be discharged from its duties and obligations under the Transaction Documents. After any resigning Administrative Agent’s
resignation hereunder, the provisions of this Article XI and Article XII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative Agent.
SECTION 11.10. Structuring
Agent. Each of the parties hereto hereby acknowledges and agrees that the Structuring Agent shall not have any right, power, obligation,
liability, responsibility or duty under this Agreement, other than the Structuring Agent’s right to receive fees pursuant to Section 2.03.
Each Credit Party acknowledges that it has not relied, and will not rely, on the Structuring Agent in deciding to enter into this Agreement
and to take, or omit to take, any action under any Transaction Document.
SECTION 11.11. Erroneous
Payments.
(a) If
the Administrative Agent notifies a Credit Party or other Secured Party, or any Person who has received funds on behalf of a Credit Party
or other Secured Party (any Credit Party, Secured Party or other recipient, a “Payment Recipient”) that the Administrative
Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b))
that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted
to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Credit Party, other Secured
Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal,
interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return
of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative
Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Credit
Party or other Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such
Payment Recipient to) promptly, but in no event later than two Business Days thereafter, return to the Administrative Agent the amount
of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received),
together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received
by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight
Bank Funding Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation
from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be
conclusive, absent manifest error.
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(b) Without
limiting immediately preceding clause (a), each Credit Party or other Secured Party, or any Person who has received funds on behalf
of a Credit Party or other Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received
as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of
its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment
or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that
was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates),
or (z) that such Credit Party or other Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received,
in error or by mistake (in whole or in part) in each case:
(a) (A) in
the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written
confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause
(z)), in each case, with respect to such payment, prepayment or repayment; and
(b) such
Credit Party or other Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly
(and, in all events, within one Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment,
prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this
Section 11.11(b).
(c) Each
Credit Party or other Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time
owing to such Credit Party or other Secured Party under any Transaction Document, or otherwise payable or distributable by the Administrative
Agent to such Credit Party or other Secured Party from any source, against any amount due to the Administrative Agent under immediately
preceding clause (a) or under the indemnification provisions of this Agreement.
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(d) In
the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor
by the Administrative Agent in accordance with immediately preceding clause (a), from any Credit Party that has received such Erroneous
Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective
behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s
notice to such Credit Party at any time, (i) such Credit Party shall be deemed to have assigned its Loans (but not its Commitments)
in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment
of the Loans (but not Commitments), the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest
(with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed
to execute and deliver an Assignment and Assumption with respect to such Erroneous Payment Deficiency Assignment, and such Credit Party
shall deliver any notes evidencing such Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee
Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative
Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning
Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance
of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as
to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject
to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an
Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by
the applicable Credit Party shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative
Agent shall retain all other rights, remedies and claims against such Credit Party (and/or against any recipient that receives funds on
its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Credit
Party and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees
that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment
Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall
be contractually subrogated to all the rights and interests of the applicable Credit Party or other Secured Party under the Transaction
Documents with respect to each Erroneous Payment Return Deficiency.
(e) The
parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any obligations owed by any
of the Borrower, any Servicer, the Performance Guarantor, the Parent or any Originator (the “Borrower-Related Parties”),
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 any Borrower-Related Party for the purpose of making such Erroneous Payment.
(f) To
the extent permitted by Applicable Law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives,
and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim
by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based
on “discharge for value” or any similar doctrine.
(g) Each
party’s obligations, agreements and waivers under this Section 11.11 shall survive the resignation or replacement of
the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all obligations (or any
portion thereof) under any Transaction Document.
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ARTICLE XII
INDEMNIFICATION
SECTION 12.01. Indemnities
by the Borrower.
(a) Without
limiting any other rights that the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers,
directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law,
the Borrower hereby agrees to indemnify each Borrower Indemnified Party from and against any and all claims, losses and liabilities (including
Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) arising out
of or resulting from this Agreement or any other Transaction Document or the use of proceeds of the Credit Extensions or the security
interest in respect of any Pool Receivable or any other Collateral; excluding, however, (a) any portion of Borrower
Indemnified Amounts to the extent a final non-appealable judgment of a court of competent jurisdiction holds that such portion of such
Borrower Indemnified Amounts resulted from the bad faith, gross negligence or willful misconduct by the Borrower Indemnified Party seeking
indemnification and (b) Taxes other than as described in clause (xiv) below or Taxes that represent losses, claims or
damages arising from any non-Tax claim. Without limiting or being limited by the foregoing, the Borrower shall pay on demand (it being
understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order
of priority set forth in Section 4.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify such
Borrower Indemnified Party from and against any and all Borrower Indemnified Amounts relating to or resulting from any of the following
(but excluding Borrower Indemnified Amounts and Taxes described in clause (b) above):
(i) any
Pool Receivable which the Borrower or the Servicer includes as an Eligible Receivable as part of the Net Receivables Pool Balance but
which is not an Eligible Receivable at such time;
(ii) any
representation, warranty or statement made or deemed made by the Borrower (or any of its respective officers) under or in connection with
this Agreement, any of the other Transaction Documents, any Monthly Report, any Interim Report or any other information or report delivered
by or on behalf of the Borrower pursuant hereto which shall have been untrue or incorrect when made or deemed made;
(iii) the
failure by the Borrower to comply with any Applicable Law with respect to any Pool Receivable or the related Contract; or the failure
of any Pool Receivable or the related Contract to conform to any such Applicable Law;
(iv) the
failure to vest in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each
case free and clear of any Lien;
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(v) the
failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other
similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable
and the other Collateral and Collections in respect thereof, whether at the time of any Credit Extension or at any subsequent time;
(vi) any
dispute, claim or defense (other than discharge in bankruptcy) of an Obligor to the payment of any Pool Receivable (including, without
limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms), or any other claim resulting from or relating to collection activities with respect
to such Pool Receivable;
(vii) any
failure of the Borrower to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction
Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(viii) any
products liability, environmental or other claim arising out of or in connection with any Pool Receivable or other merchandise, goods
or services which are the subject of or related to any Pool Receivable;
(ix) the
commingling of Collections of Pool Receivables at any time with other funds;
(x) any
investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use
of proceeds of any Credit Extensions or in respect of any Pool Receivable or other Collateral or any related Contract;
(xi) any
failure of the Borrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction
Document;
(xii) any
setoff with respect to any Pool Receivable;
(xiii) any
claim brought by any Person other than a Borrower Indemnified Party arising from any activity by the Borrower or any Affiliate of the
Borrower in servicing, administering or collecting any Pool Receivable;
(xiv) the
failure by the Borrower to pay when due any taxes, including, without limitation, sales, excise or personal property taxes;
(xv) any
failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement, the termination by a Collection
Account Bank of any Account Control Agreement or any amounts (including in respect of an indemnity) payable by the Administrative Agent
to a Collection Account Bank under any Account Control Agreement;
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(xvi) [reserved];
(xvii) any
dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable
(including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation
of such Obligor enforceable against it in accordance with its terms), or any other claim in each case resulting from the sale of goods
or the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such goods or services or other
similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(xviii) any
action taken by the Administrative Agent as attorney-in-fact for the Borrower, any Originator or the Servicer pursuant to this Agreement
or any other Transaction Document;
(xix) the
failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(xx) the
use of proceeds of any Credit Extension or the usage of any Letter of Credit; or
(xxi) any
reduction in Capital as a result of the distribution of Collections if all or a portion of such distributions shall thereafter be rescinded
or otherwise must be returned for any reason.
(b) Notwithstanding
anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification obligations in clauses (ii),
(iii), (vii) and (xi) of this Article XII, any representation, warranty or covenant qualified
by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified.
(c) If
for any reason the foregoing indemnification is unavailable (other than pursuant to the exclusions contained in Section 12.01(a))
to any Borrower Indemnified Party or insufficient to hold it harmless, then the Borrower shall contribute to such Borrower Indemnified
Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion
as is appropriate to reflect the relative economic interests of the Borrower and its Affiliates on the one hand and such Borrower Indemnified
Party on the other hand in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates
and such Borrower Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
The reimbursement, indemnity and contribution obligations of the Borrower under this Section shall be in addition to (but without
duplication of) any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower
Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of
the Borrower and the Borrower Indemnified Parties.
(d) Any
indemnification or contribution under this Section shall survive the termination of this Agreement.
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SECTION 12.02. Indemnification
by the Servicer.
(a) The
Servicer hereby agrees to indemnify and hold harmless the Borrower, the Administrative Agent, the Credit Parties, the Affected Persons
and their respective assigns, officers, directors, agents and employees (each, a “Servicer Indemnified Party”), from
and against any loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions
arising out of activities of the Servicer pursuant to this Agreement or any other Transaction Document, including any judgment, award,
settlement, Attorney Costs and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding
or claim (all of the foregoing being collectively referred to as, “Servicer Indemnified Amounts”); excluding (i) any
portion of Servicer Indemnified Amounts to the extent a final non-appealable judgment of a court of competent jurisdiction holds that
such portion of such Servicer Indemnified Amounts resulted from the bad faith, gross negligence or willful misconduct by the Servicer
Indemnified Party seeking indemnification, (ii) Taxes other than Taxes that represent losses, claims or damages arising from any
non-Tax claim and (iii) Servicer Indemnified Amounts to the extent the same includes losses in respect of Pool Receivables that are
uncollectible solely on account of the insolvency, bankruptcy, lack of creditworthiness or other financial inability to pay of the related
Obligor. Without limiting or being limited by the foregoing, the Servicer shall pay on demand, to each Servicer Indemnified Party any
and all amounts necessary to indemnify such Servicer Indemnified Party from and against any and all Servicer Indemnified Amounts relating
to or resulting from any of the following (but excluding Servicer Indemnified Amounts described in clauses (i), (ii) and
(iii) above):
(i) any
representation, warranty or statement made or deemed made by the Servicer (or any of its respective officers) under or in connection with
this Agreement, any of the other Transaction Documents, any Monthly Report, any Interim Report or any other written information or written
report delivered by or on behalf of the Servicer pursuant hereto which shall have been untrue or incorrect when made or deemed made;
(ii) the
failure by the Servicer to comply with any Applicable Law with respect to any Pool Receivable or the related Contract; or the failure
of any Pool Receivable or the related Contract to conform to any such Applicable Law;
(iii) the
commingling of Collections of Pool Receivables at any time with other funds;
(iv) any
failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement, the termination by a Collection
Account Bank of any Account Control Agreement or any amounts (including in respect of an indemnity) payable by the Administrative Agent
to a Collection Account Bank under any Account Control Agreement;
(v) [reserved];
(vi) the
failure or delay to provide any Obligor with an invoice or other evidence of indebtedness; or
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(vii) any
failure of the Servicer to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction
Document.
(b) If
for any reason the foregoing indemnification is unavailable (other than pursuant to the exclusions contained in Section 12.02(a))
to any Servicer Indemnified Party or insufficient to hold it harmless, then the Servicer shall contribute to the amount paid or payable
by such Servicer Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect
the relative economic interests of the Servicer and its Affiliates on the one hand and such Servicer Indemnified Party on the other hand
in the matters contemplated by this Agreement as well as the relative fault of the Servicer and its Affiliates and such Servicer Indemnified
Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity
and contribution obligations of the Servicer under this Section shall be in addition to (but without duplication of) any liability
which the Servicer may otherwise have, shall extend upon the same terms and conditions to Servicer Indemnified Party, and shall be binding
upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Servicer and the Servicer Indemnified
Parties.
(c) Any
indemnification or contribution under this Section shall survive the termination of this Agreement.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Amendments,
Etc.
(a) No
failure on the part of any Credit Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any
other right. No amendment or waiver of any provision of this Agreement or consent to any departure by any of the Borrower or any Affiliate
thereof shall be effective unless in a writing signed by the Administrative Agent, the Swingline Lender and the Majority Lenders (and,
in the case of any amendment, also signed by the Borrower), and then such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided, however, that (A) no amendment, waiver or
consent shall, unless in writing and signed by the Servicer, affect the rights or duties of the Servicer under this Agreement; (B) no
amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent, the Swingline Lender and each Lender:
(i) change
(directly or indirectly) the definitions of, Borrowing Base Deficit, Defaulted Receivable, Delinquent Receivable, Eligible Receivable,
Facility Limit, Final Maturity Date, Net Receivables Pool Balance or Total Reserves contained in this Agreement, or increase the then
existing Concentration Percentage for any Obligor or change the calculation of the Borrowing Base;
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(ii) reduce
the amount of Capital or Interest that is payable on account of any Loan or with respect to any other Credit Extension or delay any scheduled
date for payment thereof;
(iii) change
any Event of Default;
(iv) release
all or a material portion of the Collateral from the Administrative Agent’s security interest created hereunder;
(v) release
the Performance Guarantor from any of its obligations under the Performance Guaranty or terminate the Performance Guaranty;
(vi) change
any of the provisions of this Section 13.01 or the definition of “Majority Lenders”; or
(vii) change
the order of priority in which Collections are applied pursuant to Section 4.01.
Notwithstanding the foregoing,
(A) no amendment, waiver or consent shall increase any Lender’s or LC Participant’s Commitment hereunder without the
consent of such Lender or LC Participant, as applicable and (B) no amendment, waiver or consent shall reduce any Fees payable
by the Borrower to any Lender or delay the dates on which any such Fees are payable, in either case, without the consent of such Lender
and (C) no consent with respect to any amendment, waiver or other modification of this Agreement shall be required of any Defaulting
Lender, except in accordance with the terms set forth in Section 2.06(b). For the avoidance of doubt and notwithstanding the
foregoing, the definition of “Financial Covenant Event” and Section 10.01(u) may be modified by the Administrative
Agent from time to time in accordance with the terms set forth in the definition of “Financial Covenant Event”.
SECTION 13.02. Notices,
Etc. All notices and other communications hereunder shall, unless otherwise stated herein, be in writing (which shall include facsimile
communication) and faxed or delivered, to each party hereto, at its address set forth under its name on Schedule III hereto or
at such other address as shall be designated by such party in a written notice to the other parties hereto. Notices and communications
by facsimile shall be effective when sent (and shall be followed by hard copy sent by regular mail), and notices and communications sent
by other means shall be effective when received.
SECTION 13.03. Assignability;
Addition of Lenders.
(a) Assignment
by Lenders. Each Lender may assign to any Eligible Assignee all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment and any Loan or interests therein owned by it); provided, however
that
(i) except
for an assignment by a Lender to either an Affiliate of such Lender or any other Lender, each such assignment shall require the prior
written consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed); provided, however,
that such consent shall not be required if an Event of Default or an Unmatured Event of Default has occurred and is continuing;
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(ii) each
such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(iii) the
amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Agreement with respect
to such assignment) shall in no event be less than the lesser of (x) $5,000,000 and (y) all of the assigning Lender’s
Commitment; and
(iv) the
parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance Agreement.
Upon such execution, delivery,
acceptance and recording from and after the effective date specified in such Assignment and Acceptance Agreement, (x) the assignee
thereunder shall be a party to this Agreement, and to the extent that rights and obligations under this Agreement have been assigned to
it pursuant to such Assignment and Acceptance Agreement, have the rights and obligations of a Lender hereunder and (y) the assigning
Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance Agreement,
relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance Agreement
covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease
to be a party hereto).
(b) Register.
The Administrative Agent shall, acting solely for this purpose as an agent of the Borrower, maintain at its address referred to on Schedule
III of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent to the other parties
hereto) a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders, the Commitment of each Lender and the aggregate outstanding Capital (and stated interest) of the Loans of
each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Servicer, the Administrative Agent, the Lenders, and the other Credit Parties may
treat each Person whose name is recorded in the Register as a Lender under this Agreement for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower, the Servicer, the LC Bank and any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(c) Procedure.
Upon its receipt of an Assignment and Acceptance Agreement executed and delivered by an assigning Lender and an Eligible Assignee or assignee
Lender, the Administrative Agent shall, if such Assignment and Acceptance Agreement has been duly completed, (i) accept such Assignment
and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof
to the Borrower and the Servicer.
(d) Participations.
Each Lender may sell participations to one or more Eligible Assignees (each, a “Participant”) in or to all or a portion
of its rights and/or obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the interests
in the Loans owned by it); provided, however, that
(i) such
Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain
unchanged, and
115
(ii) such
Lender shall remain solely responsible to the other parties to this Agreement for the performance of such obligations.
The Administrative Agent,
the Lenders, the LC Bank, the LC Participants, the Borrower and the Servicer shall have the right to continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under this Agreement.
(e) Participant
Register. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register
on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s
interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that
no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant
or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under
this Agreement) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of
Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries
in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded
in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining
a Participant Register.
(f) Assignments
by Administrative Agent. This Agreement and the rights and obligations of the Administrative Agent herein shall be assignable by the
Administrative Agent and its successors and assigns; provided that in the case of an assignment to a Person that is not an Affiliate
of the Administrative Agent, so long as no Event of Default or Unmatured Event of Default has occurred and is continuing, such assignment
shall require the Borrower’s consent (not to be unreasonably withheld, conditioned or delayed).
(g) Assignments
by the Borrower or the Servicer. Neither the Borrower nor, except as provided in Section 9.01, the Servicer may assign
any of its respective rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent,
the LC Bank and each Lender (such consent to be provided or withheld in the sole discretion of such Person).
(h) Pledge
to a Federal Reserve Bank. Notwithstanding anything to the contrary set forth herein, (i) any Lender or any of its respective
Affiliates may at any time pledge or grant a security interest in all or any portion of its interest in, to and under this Agreement (including,
without limitation, rights to payment of Capital and Interest) and any other Transaction Document to secure its obligations to a Federal
Reserve Bank or other central bank having jurisdiction over such Lender, without notice to or the consent of the Borrower, the Servicer,
any Affiliate thereof or any Credit Party; provided, however, that that no such pledge shall relieve such assignor of its
obligations under this Agreement.
116
(i) Pledge
to a Security Trustee. Notwithstanding anything to the contrary set forth herein, (i) any Lender or any of their respective Affiliates
may at any time pledge or grant a security interest in all or any portion of its interest in, to and under this Agreement (including,
without limitation, rights to payment of Capital and Interest) and any other Transaction Document to a security trustee in connection
with the funding by such Person of Loans, without notice to or the consent of the Borrower, the Servicer, any Affiliate thereof or any
Credit Party; provided, however, that that no such pledge shall relieve such assignor of its obligations under this Agreement.
SECTION 13.04. Costs
and Expenses. In addition to the rights of indemnification granted under Section 12.01 hereof, the Borrower agrees to
pay on demand all reasonable out-of-pocket costs and expenses in connection with the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Transaction Documents (together with all amendments, restatements, supplements, consents
and waivers, if any, from time to time hereto and thereto), including, without limitation, (i) the reasonable Attorney Costs for
the Administrative Agent and the other Credit Parties and any of their respective Affiliates with respect thereto and with respect to
advising the Administrative Agent and the other Credit Parties and their respective Affiliates as to their rights and remedies under this
Agreement and the other Transaction Documents and (ii) reasonable accountants’, auditors’ and consultants’ fees
and expenses for the Administrative Agent and the other Credit Parties and any of their respective Affiliates incurred in connection with
the administration and maintenance of this Agreement or advising the Administrative Agent or any other Credit Party as to their rights
and remedies under this Agreement or as to any actual or reasonably claimed breach of this Agreement or any other Transaction Document.
In addition, the Borrower agrees to pay on demand all reasonable out-of-pocket costs and expenses (including reasonable Attorney Costs),
of the Administrative Agent and the other Credit Parties and their respective Affiliates, incurred in connection with the enforcement
of any of their respective rights or remedies under the provisions of this Agreement and the other Transaction Documents.
SECTION 13.05. No
Proceedings; Limitation on Payments.
(a) Each
of the Servicer and each Lender and each assignee of a Loan or any interest therein, hereby covenants and agrees that it will not institute
against, or join any other Person in instituting against, the Borrower any Insolvency Proceeding until one year and one day after the
Final Payout Date; provided, that the Administrative Agent may take any such action in its sole discretion following the occurrence
of an Event of Default.
(b) The
provisions of this Section 13.05 shall survive any termination of this Agreement.
117
SECTION 13.06. Confidentiality.
(a) Each
of the Borrower and the Servicer covenants and agrees to hold in confidence, and not disclose to any Person, the terms of this Agreement
or the Fee Letter (including any fees payable in connection with this Agreement, the Fee Letter or any other Transaction Document or the
identity of the Administrative Agent or any other Credit Party), except as the Administrative Agent and each Lender may have consented
to in writing prior to any proposed disclosure; provided, however, that it may disclose such information (i) to its
Advisors, Representatives, the Initial Investors and the Permitted Holders, (ii) to the extent such information has become available
to the public other than as a result of a disclosure by or through the Borrower, the Servicer or their Advisors and Representatives or
(iii) to the extent it should be (A) required by Applicable Law, or in connection with any legal or regulatory proceeding or
(B) requested by any Governmental Authority to disclose such information; provided, that, in the case of clause (iii) above,
the Borrower and the Servicer will use reasonable efforts to maintain confidentiality and will (unless otherwise prohibited by Applicable
Law) notify the Administrative Agent and the affected Credit Party of its intention to make any such disclosure prior to making such disclosure.
Each of the Borrower and the Servicer agrees to be responsible for any breach of this Section by its Representatives and Advisors
and agrees that its Representatives and Advisors will be advised by it of the confidential nature of such information and shall agree
to comply with this Section. Notwithstanding the foregoing, it is expressly agreed that each of the Borrower, the Servicer and their respective
Affiliates may publish a press release or otherwise publicly announce the existence and principal amount of the Commitments under this
Agreement and the transactions contemplated hereby; provided that the Administrative Agent shall be provided a reasonable opportunity
to review such press release or other public announcement prior to its release and provide comment thereon; and provided, further,
that no such press release shall name or otherwise identify the Administrative Agent, any other Credit Party or any of their respective
Affiliates without such Person’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding
the foregoing, the Borrower consents to the publication by the Administrative Agent or any other Credit Party of a tombstone or similar
advertising material relating to the financing transactions contemplated by this Agreement.
For
the avoidance of doubt, nothing in this Section shall prohibit any Person from voluntarily communicating, disclosing or providing
information within the scope of the confidentiality provisions of this Section regarding suspected violations of laws, rules or
regulations to a governmental, regulatory or self-regulatory organization without any notification to any Person.
(b) Each
of the Administrative Agent and each other Credit Party, severally and with respect to itself only, agrees to hold in confidence, and
not disclose to any Person, any confidential and proprietary information concerning the Borrower, the Servicer and their respective Affiliates
and their businesses or the terms of this Agreement (including any fees payable in connection with this Agreement or the other Transaction
Documents), except as the Borrower or the Servicer may have consented to in writing prior to any proposed disclosure; provided,
however, that it may disclose such information (i) to its Advisors and Representatives, (ii) to its assignees and Participants
and potential assignees and Participants and their respective counsel if they agree in writing to hold it confidential, (iii) to
the extent such information has become available to the public other than as a result of a disclosure by or through it or its Representatives
or Advisors, (iv) at the request of a bank examiner or other regulatory authority or in connection with an examination of any of
the Administrative Agent or any Lender or their respective Affiliates or (v) to the extent it should be (A) required by Applicable
Law, or in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information;
provided, that, in the case of clause (v) above, the Administrative Agent and each Lender will use reasonable efforts
to maintain confidentiality and will (unless otherwise prohibited by Applicable Law) notify the Borrower and the Servicer of its making
any such disclosure as promptly as reasonably practicable thereafter. Each of the Administrative Agent and each Lender, severally and
with respect to itself only, agrees to be responsible for any breach of this Section by its Representatives and Advisors and agrees
that its Representatives and Advisors will be advised by it of the confidential nature of such information and shall agree to comply with
this Section.
118
(c) As
used in this Section, (i) “Advisors” means, with respect to any Person, such Person’s accountants, attorneys
and other confidential advisors and (ii) “Representatives” means, with respect to any Person, such Person’s
Affiliates, Subsidiaries, directors, managers, officers, employees, members, investors, financing sources, insurers, professional advisors,
representatives and agents; provided that such Persons shall not be deemed to Representatives of a Person unless (and solely to
the extent that) confidential information is furnished to such Person.
(d) Notwithstanding
the foregoing, to the extent not inconsistent with applicable securities laws, each party hereto (and each of its employees, representatives
or other agents) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure (as defined
in Section 1.6011-4 of the Treasury Regulations) of the transactions contemplated by the Transaction Documents and all materials
of any kind (including opinions or other tax analyses) that are provided to such Person relating to such tax treatment and tax structure.
SECTION 13.07. GOVERNING
LAW. THIS AGREEMENT, INCLUDING THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK,
BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF, EXCEPT TO THE EXTENT THAT THE PERFECTION, THE EFFECT OF PERFECTION
OR PRIORITY OF THE INTERESTS OF ADMINISTRATIVE AGENT OR ANY LENDER IN THE COLLATERAL IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN
THE STATE OF NEW YORK).
SECTION 13.08. Execution
in Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart hereof
by facsimile or other electronic means shall be equally effective as delivery of an originally executed counterpart. The words “execution”,
“executed”, “signed”, “signature”, and words of like import in this Agreement and the other Transaction
Documents shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity
or enforceability as a manually executed signature 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.
119
SECTION 13.09. Integration;
Binding Effect; Survival of Termination. This Agreement and the other Transaction Documents contain the final and complete integration
of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among
the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement shall
create and constitute the continuing obligations of the parties hereto in accordance with its terms and shall remain in full force and
effect until the Final Payout Date; provided, however, that the provisions of Sections 3.08, 3.09, 3.10,
3.11, 5.01, 5.02, 5.03, 11.04, 11.06, 12.01, 12.02, 13.04, 13.05,
13.06, 13.09, 13.11 and 13.13 shall survive any termination of this Agreement.
SECTION 13.10. CONSENT
TO JURISDICTION. (a) EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO (I) WITH RESPECT TO THE BORROWER AND THE SERVICER,
THE EXCLUSIVE JURISDICTION, AND (II) WITH RESPECT TO EACH OF THE OTHER PARTIES HERETO, THE NON-EXCLUSIVE JURISDICTION, IN EACH
CASE, OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN NEW YORK CITY, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND EACH PARTY HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING (I) IF BROUGHT BY THE BORROWER, THE SERVICER OR ANY AFFILIATE THEREOF, SHALL BE HEARD AND DETERMINED, AND (II) IF
BROUGHT BY ANY OTHER PARTY TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, MAY BE HEARD AND DETERMINED, IN EACH CASE, IN
SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. NOTHING IN THIS SECTION 13.10 SHALL
AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY OTHER CREDIT PARTY TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR THE SERVICER
OR ANY OF THEIR RESPECTIVE PROPERTY IN THE COURTS OF OTHER JURISDICTIONS. EACH OF THE BORROWER AND THE SERVICER HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING.
THE PARTIES HERETO AGREE 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.
(b) EACH
OF THE BORROWER AND THE SERVICER CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
OF SUCH PROCESS TO IT AT ITS ADDRESS SPECIFIED IN SECTION 13.02. NOTHING IN THIS SECTION 13.10 SHALL AFFECT THE
RIGHT OF THE ADMINISTRATIVE AGENT OR ANY OTHER CREDIT PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
120
SECTION 13.11. WAIVER
OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT.
SECTION 13.12. Ratable
Payments. If any Credit Party, whether by setoff or otherwise, has payment made to it with respect to any Borrower Obligations in
a greater proportion than that received by any other Credit Party entitled to receive a ratable share of such Borrower Obligations, such
Credit Party agrees, promptly upon demand, to purchase for cash without recourse or warranty a portion of such Borrower Obligations held
by the other Credit Parties so that after such purchase each Credit Party will hold its ratable proportion of such Borrower Obligations;
provided that if all or any portion of such excess amount is thereafter recovered from such Credit Party, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but without interest.
SECTION 13.13. Limitation
of Liability.
(a) No
claim may be made by the Borrower or any Affiliate thereof or any other Person against any Credit Party or their respective Affiliates,
members, directors, officers, employees, incorporators, attorneys or agents for any special, indirect, consequential or punitive damages
in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated
by this Agreement or any other Transaction Document, or any act, omission or event occurring in connection herewith or therewith; and
each of the Borrower and the Servicer hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor. None of the Credit Parties and their respective Affiliates shall
have any liability to the Borrower or any Affiliate thereof or any other Person asserting claims on behalf of or in right of the Borrower
or any Affiliate thereof in connection with or as a result of this Agreement or any other Transaction Document or the transactions contemplated
hereby or thereby, except to the extent that any losses, claims, damages, liabilities or expenses incurred by the Borrower or any Affiliate
thereof result from the breach of contract, gross negligence or willful misconduct of such Credit Party in performing its duties and obligations
hereunder and under the other Transaction Documents to which it is a party.
(b) The
obligations of the Administrative Agent and each of the other Credit Parties under this Agreement and each of the Transaction Documents
are solely the corporate obligations of such Person. No recourse shall be had for any obligation or claim arising out of or based upon
this Agreement or any other Transaction Document against any member, director, officer, employee or incorporator of any such Person.
SECTION 13.14. Intent
of the Parties. The Borrower has structured this Agreement with the intention that the Loans and the obligations of the Borrower hereunder
will be treated under United States federal, and applicable state, local and foreign tax law as debt (the “Intended Tax Treatment”).
The Borrower, the Servicer, the Administrative Agent and the other Credit Parties agree to file no tax return, or take any action, inconsistent
with the Intended Tax Treatment unless required by law. Each assignee and each Participant acquiring an interest in a Credit Extension,
by its acceptance of such assignment or participation, agrees to comply with the immediately preceding sentence.
121
SECTION 13.15. USA
Patriot Act. Each of the Administrative Agent and each of the other Credit Parties hereby notifies the Borrower and the Servicer that
pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “PATRIOT
Act”), the Administrative Agent and the other Credit Parties may be required to obtain, verify and record information that identifies
the Borrower, the Originators, the Servicer and the Performance Guarantor, which information includes the name, address, tax identification
number and other information regarding the Borrower, the Originators, the Servicer and the Performance Guarantor that will allow the Administrative
Agent and the other Credit Parties to identify the Borrower, the Originators, the Servicer and the Performance Guarantor in accordance
with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act. Each of the Borrower and the Servicer
agrees to provide the Administrative Agent and each other Credit Parties, from time to time, with all documentation and other information
required by bank regulatory authorities under “know your customer” and anti-money laundering rules and regulations, including,
without limitation, the PATRIOT Act.
SECTION 13.16. Right
of Setoff. Each Credit Party is hereby authorized (in addition to any other rights it may have), at any time during the continuance
of an Event of Default, to setoff, appropriate and apply (without presentment, demand, protest or other notice which are hereby expressly
waived) any deposits and any other indebtedness held or owing by such Credit Party (including by any branches or agencies of such Credit
Party) to, or for the account of, the Borrower or the Servicer against amounts owing by the Borrower or the Servicer hereunder (even if
contingent or unmatured); provided that such Credit Party shall notify the Borrower or the Servicer, as applicable, promptly following
such setoff.
SECTION 13.17. Severability.
Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 13.18. Mutual
Negotiations. This Agreement and the other Transaction Documents are the product of mutual negotiations by the parties thereto and
their counsel, and no party shall be deemed the draftsperson of this Agreement or any other Transaction Document or any provision hereof
or thereof or to have provided the same. Accordingly, in the event of any inconsistency or ambiguity of any provision of this Agreement
or any other Transaction Document, such inconsistency or ambiguity shall not be interpreted against any party because of such party’s
involvement in the drafting thereof.
SECTION 13.19. Captions
and Cross References. The various captions (including the table of contents) in this Agreement are provided solely for convenience
of reference and shall not affect the meaning or interpretation of any provision of this Agreement. Unless otherwise indicated, references
in this Agreement to any Section, Schedule or Exhibit are to such Section Schedule or Exhibit to this Agreement, as the
case may be, and references in any Section, subsection, or clause to any subsection, clause or subclause are to such subsection, clause
or subclause of such Section, subsection or clause.
[Signature Pages Follow]
122
IN WITNESS WHEREOF, the parties
have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
BRIGHTVIEW FUNDING LLC,
as the Borrower
By:
Name:
Title:
BRIGHTVIEW LANDSCAPES, LLC,
as the Servicer
By:
Name:
Title:
PNC
BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
Name:
Title:
PNC
BANK, NATIONAL ASSOCIATION,
as
a Lender
By:
Name:
Title:
PNC
BANK, NATIONAL ASSOCIATION,
as
LC Bank and as an LC Participant
By:
Name:
Title:
PNC
CAPITAL MARKETS LLC,
as
Structuring Agent
By:
Name:
Title:
Schedule III-2
MUFG
BANK, LTD.,
as a Lender and as an LC Participant
By:
Name:
Title:
Schedule III-3
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: tm2618044d1_ex99-1.htm · Sequence: 4
Exhibit
99.1
NEWS RELEASE
For Immediate Release
BrightView Announces Extension of Term Loan
and Receivables Financing Maturities
BLUE BELL, PA (June 18, 2026) -- BrightView
Holdings, Inc. (NYSE: BV) today announced that it has successfully extended the maturity of each of its senior secured term loans
from April 2029 to June 2033 and its receivables financing facility from June 2027 to June 2029.
“We are pleased to announce the extension of the maturity date
of our debt facilities, which reflects the continued confidence our lending partners have in our business and our financial position,”
said Brett Urban, BrightView Chief Financial Officer.
“Based on the continued execution of our One BrightView strategy
and ongoing progress towards the 2030 objectives highlighted at our February 2025 Investor Day, we saw considerable demand from investors.
We are grateful for the support of our lenders and look forward to continuing to build on this partnership as we advance our growth objectives.”
Urban added, “The maturity extensions strengthen our balance
sheet flexibility, provide additional runway to execute our strategic priorities, and ensures we remain well-positioned to pursue long-term
value creation for our stakeholders.”
About BrightView
BrightView (NYSE: BV), the nation’s largest commercial
landscaper, proudly designs, creates, and maintains the best landscapes on Earth and provides the most efficient and comprehensive snow
and ice removal services. With a dependable service commitment, BrightView brings brilliant landscapes to life at premier properties
across the United States, including business parks and corporate offices, homeowners' associations, healthcare facilities, educational
institutions, retail centers, resorts and theme parks, municipalities, golf courses, and sports venues. BrightView also serves as Field
Consultant to Major League Baseball. Through industry-leading best practices and sustainable solutions, BrightView is invested in taking
care of our team members, engaging our clients, inspiring our communities, and preserving our planet. Visit www.BrightView.com
and connect with us on X, Facebook, and LinkedIn.
Forward Looking Statements
This press release contains “forward-looking statements”
within the meaning of the safe harbor provision of the U.S. Private Securities Litigation Reform Act of 1995, Section 27A of the
Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), which are subject to the “safe harbor” created by those sections. All statements,
other than statements of historical facts included in this presentation, including statements concerning our plans, objectives, goals,
beliefs, business outlook, business trends, expectations regarding our industry, strategy, future events, future operations, future liquidity
and financial position, future revenues, projected costs, prospects, plans and objectives of management and other information, may be
forward-looking statements. Important factors that could cause actual results to differ materially from those in the forward-looking statements
can be found under the caption “Risk Factors” in BrightView’s annual report on Form 10-K for the year ended September 30,
2025, as filed with the SEC, as such risk factors may be updated from time to time in its periodic filings with the SEC, which are accessible
on the SEC’s website on www.sec.gov. Any forward-looking statement in this release speaks
only as of the date of this release. BrightView undertakes no obligation to publicly update or review any forward-looking statement, whether
as a result of new information, future developments or otherwise, except as may be required by any applicable securities laws.
For More Information:
Investors
Chris Stoczko, Vice President of Finance
IR@brightview.com
News Media
David Freireich, Vice President of Communications & Public Affairs
David.Freireich@brightview.com
Source: BrightView Landscapes
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Cover page.
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For the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
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- Definition
The type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
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No definition available.
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- Definition
Address Line 1 such as Attn, Building Name, Street Name
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- Definition
Name of the City or Town
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- Definition
Code for the postal or zip code
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- Definition
Name of the state or province.
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No definition available.
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- Definition
A unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
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- Definition
Indicate if registrant meets the emerging growth company criteria.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
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- Definition
Commission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
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No definition available.
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- Definition
Two-character EDGAR code representing the state or country of incorporation.
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- Definition
The exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
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- Definition
The Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
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- Definition
Local phone number for entity.
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
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- Definition
Title of a 12(b) registered security.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
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- Definition
Name of the Exchange on which a security is registered.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
-Subsection 12
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Trading symbol of an instrument as listed on an exchange.
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
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-Name Securities Act
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-Section 425
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