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As filed with the
Securities and Exchange Commission on July 15, 2024
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported):
July 12, 2024
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B&G Foods, Inc. |
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(Exact name of Registrant as specified in its charter) |
Delaware |
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001-32316 |
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13-3918742 |
(State or Other Jurisdiction |
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(Commission |
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(IRS Employer |
of Incorporation) |
|
File Number) |
|
Identification No.) |
Four Gatehall Drive, Parsippany, New Jersey |
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07054 |
(Address of Principal Executive Offices) |
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(Zip Code) |
Registrant’s telephone number, including
area code: (973) 401-6500
Securities registered pursuant to Section 12(b) of
the Act:
Title of each class |
Trading Symbol |
Name of each exchange on which registered |
Common Stock, par value $0.01 per share |
BGS |
New York Stock Exchange |
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01. Entry into a Material Definitive Agreement.
The disclosure under Item 2.03 of this report relating
to the amendment to B&G Foods’ amended and restated credit agreement is incorporated in this Item 1.01 by reference.
Item 2.03. Creation of a Direct Financial Obligation.
Amendment
to Credit Agreement. On July 12, 2024, we refinanced and amended our amended and restated credit agreement, dated as of October
2, 2015, and previously amended on March 30, 2017, November 20, 2017, October 10, 2019, December 16, 2020, June 28, 2022, June 6, 2023,
and September 22, 2023, among B&G Foods, as borrower, the several banks and other financial institutions or entities from time to
time party thereto as lenders and Barclays Bank PLC, as administrative agent and collateral agent. In the remainder of this report, we
refer to the amended and restated credit agreement as so amended, as our credit agreement.
As part of the refinancing and together with a
portion of the net proceeds of the tack-on offering of 8.000% senior secured notes due 2028 described below, we reduced the aggregate
principal amount of tranche B term loans outstanding under our credit agreement from $507.3 million to $450.0 million by replacing $507.3
million of outstanding tranche B term loans with $450.0 million of new tranche B term loans. B&G Foods also extended the maturity
date for the tranche B term loans from October 10, 2026 to October 10, 2029. The new tranche B term loans were issued at a price equal
to 99.00% of their face value. The new tranche B term loans will bear interest based on alternative rates that B&G Foods may choose,
including a base rate per annum plus an applicable margin of 2.50%, and SOFR plus an applicable margin of 3.50%. The new tranche B term
loans are subject to amortization at the rate of 1% per year with the balance due and payable on the maturity date.
As part of the refinancing, B&G Foods also
prepaid $175.0 million aggregate principal amount of revolving credit loans with a portion of the proceeds of the tack-on offering, decreased
the revolver capacity under the senior secured credit agreement from $800.0 million to $475.0 million aggregate principal amount, and
extended the maturity date of its revolving credit facility from December 16, 2025 to December 16, 2028. Following the refinancing, interest
under the revolving credit facility, including any outstanding letters of credit, will be determined based on alternative rates that B&G
Foods may choose in accordance with the credit agreement, including a base rate per annum plus an applicable margin ranging from 0.50%
to 1.00%, and SOFR plus an applicable margin ranging from 1.50% to 2.00%, in each case depending on B&G Foods’ consolidated
leverage ratio. As of July 12, 2024, $30.0 million aggregate principal amount of revolving credit loans remain outstanding.
If
we prepay all or any portion of the new tranche B term loans within six months of the funding of the new tranche B term loans in connection
with a financing that has a lower interest rate or weighted average yield than the new tranche B term loans, we will owe a repayment
fee equal to 1% of the amount prepaid. Otherwise, we may prepay the term loans or revolving loans at any time without premium or penalty
(other than customary “breakage” costs with respect to the early termination of SOFR loans). Subject to certain exceptions,
the credit agreement provides for mandatory prepayment upon certain asset dispositions or casualty events and issuances of indebtedness.
Our obligations under the credit agreement are
jointly and severally and fully and unconditionally guaranteed on a senior basis by all of our existing and certain future domestic subsidiaries
(other than a domestic subsidiary that is a holding company for one or more foreign subsidiaries). The credit agreement is secured by
substantially all of our and our domestic subsidiaries’ assets except our and our domestic subsidiaries’ real property. The
credit agreement contains customary restrictive covenants, subject to certain permitted amounts and exceptions, including covenants limiting
our ability to incur additional indebtedness, pay dividends and make other restricted payments, repurchase shares of our outstanding stock
and create certain liens.
The credit agreement also contains certain financial
maintenance covenants, which, among other things, specify a maximum consolidated leverage ratio and a minimum interest coverage ratio,
each ratio as defined in the credit agreement. The credit agreement provides that our maximum consolidated leverage ratio (defined as
the ratio, determined on a pro forma basis, of our consolidated net debt, as of the last day of any period of four consecutive fiscal
quarters to our adjusted EBITDA (as defined in the credit agreement) before share-based compensation for such period), is 7.00 to 1.00.
We are also required to maintain a consolidated interest coverage ratio (defined as the ratio, determined on a pro forma basis, of our
adjusted EBITDA (before share-based compensation) for any period of four consecutive fiscal quarters to our consolidated interest expense
for such period payable in cash) of at least 1.75 to 1.00.
The credit agreement also provides for an incremental
term loan and revolving loan facility, pursuant to which we may request that the lenders under the credit agreement, and potentially other
lenders, provide unlimited additional amounts of term loans or revolving loans or both on terms substantially consistent with those provided
under the credit agreement. Among other things, the utilization of the incremental facility is conditioned on our ability to meet a maximum
senior secured leverage ratio of 4.00 to 1.00, and a sufficient number of lenders or new lenders agreeing to participate in the facility.
In the ordinary course of business, certain of
the lenders of the tranche B term loans and their respective affiliates have engaged, and may in the future engage, in commercial banking
and/or investment banking transactions with B&G Foods and our affiliates for which they have in the past received, and may in the
future receive, customary fees.
The description above is only a summary of the
material provisions of the amendment and is qualified in its entirety by reference to the full text of the amendment, including the credit
agreement attached as an exhibit to the amendment, which is filed as Exhibit 10.1 to this report and incorporated by reference herein.
Closing
of Tack-on Senior Secured Notes Offering. On July 12, 2024, B&G Foods issued a press release announcing the closing
of our private offering of an additional $250.0 million aggregate principal amount of 8.000% senior secured notes due 2028 in a
transaction exempt from registration under the Securities Act of 1933, as amended. The new 8.000% senior secured notes due 2028
constitute an additional issuance of 8.000% senior secured notes due 2028 under the indenture, dated as of September 26, 2023,
governing the previously issued 8.000% senior secured notes due 2028. The 8.000% senior secured notes due 2028 were issued at a
price of 100.5%, plus accrued and unpaid interest from March 15, 2024 to, but excluding, July 12, 2024. Following completion of the
tack-on offering, approximately $799.3 million of 8.000% senior secured notes due 2028 are outstanding.
We used the proceeds of the tack-on offering
to repay a portion of our tranche B term loans and revolving credit loans under our credit agreement and to pay related fees and
expenses.
Interest on the our 8.000% senior secured notes
due 2028 is payable on March 15 and September 15 of each year. The 8.000% senior secured notes due 2028 will mature on September 15, 2028,
unless earlier retired or redeemed as described below.
We may redeem some or all of the 8.000% senior
secured notes due 2028 at a redemption price of 104.000% of the principal amount beginning September 15, 2025, and thereafter at prices
declining annually to 102.000% on or after September 15, 2026 and 100.000% on or after September 15, 2027, in each case plus accrued and
unpaid interest to (but not including) the date of redemption. We may redeem up to 40% of the aggregate principal amount of the 8.000%
senior secured notes due 2028 prior to September 15, 2025 at a redemption price of 108.000% plus accrued and unpaid interest to (but not
including) the date of redemption with the net proceeds from certain equity offerings. We may also redeem some or all of the 8.000% senior
secured notes due 2028 at any time prior to September 15, 2025 at a redemption price equal to the “make-whole amount” set
forth in the indenture plus accrued and unpaid interest to (but not including) the date of redemption. In addition, if B&G Foods undergoes
a change of control, we may be required to offer to repurchase the 8.000% senior secured notes due 2028 at 101.000% of the aggregate principal
amount, plus accrued and unpaid interest to (but not including) the date of repurchase. Upon certain asset dispositions we may be required
to offer to purchase a portion of the 8.000% senior secured notes due 2028 at 100.00% of the aggregate principal amount, plus accrued
and unpaid interest to (but not including) the date of repurchase.
We may also, from time to time, seek to retire
the 8.000% senior secured notes due 2028 through cash repurchases of the 8.000% senior secured notes due 2028 and/or exchanges of the
8.000% senior secured notes due 2028 for equity securities, in open market purchases, privately negotiated transactions or otherwise.
Such repurchases or exchanges, if any, will depend on prevailing market conditions, our liquidity requirements, contractual restrictions
and other factors. The amounts involved may be material.
The 8.000% senior secured notes due 2028 are our
senior secured obligations and are jointly and severally and fully and unconditionally guaranteed on a senior secured basis by each of
our existing and future domestic subsidiaries (other than immaterial subsidiaries). The 8.000% senior secured notes due 2028 notes have
the same guarantors as our credit agreement. The 8.000% senior secured notes due 2028 and the related guarantees are secured by, subject
to permitted liens, first-priority security interests in certain collateral (which generally includes most of our and our guarantors’
right or interest in or to property of any kind, except for our and our guarantors’ real property and certain intangible assets),
which assets also secure (and will continue to secure) our credit agreement on a pari passu basis. Pursuant to the terms of the
indenture, the related collateral agreement and the intercreditor agreement, the 8.000% senior secured notes due 2028 notes and the guarantees
rank (1) pari passu (equally and ratably) in right of payment to all of our and the guarantors’ existing and future senior
debt, including existing and future senior debt under our existing or any future senior secured credit agreement (including the term loan
borrowings under our existing senior secured credit facility, any obligations under our existing revolving credit facility and all other
borrowings and obligations under our credit agreement), (2) effectively senior in right of payment to our and such guarantors’ existing
and future senior unsecured debt, including our 5.25% senior notes due 2025 and 5.25% senior notes due 2027 to the extent of the value
of the collateral, (3) effectively junior to our and the guarantors’ future secured debt, secured by assets that do not constitute
collateral, to the extent of the value of the collateral securing such debt, (4) senior in right of payment to our and such guarantors’
other existing and future subordinated debt and (5) structurally subordinated to all existing and future indebtedness and other liabilities
of our subsidiaries that do not guarantee the 8.000% senior secured notes due 2028.
The indenture governing the 8.000% senior secured
notes due 2028 contains covenants with respect to us and the guarantors and restricts the incurrence of additional indebtedness and the
issuance of capital stock; the payment of dividends or distributions on, and redemption of, capital stock; a number of other restricted
payments, including certain investments; creation of certain liens; certain sale-leaseback transactions; certain asset sales; fundamental
changes, including consolidation, mergers and transfers of all or substantially all of our assets; and specified transactions with affiliates.
Each of the covenants is subject to a number of important exceptions and qualifications.
The description above is only a summary of the
material provisions of the indenture and the 8.000% senior secured notes due 2028, and is qualified in its entirety by reference to the
full text of the indenture and the 8.000% senior secured notes due 2028, which are filed as Exhibits 4.1 and 4.2, respectively, to this
report and are incorporated herein by reference.
A copy of the press release announcing the closing
of the credit agreement refinancing and the tack-on offering is attached to this report as Exhibit 99.1 and is incorporated herein by
reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
|
4.1 |
Indenture, dated as of September 26, 2023, among B&G Foods, Inc., the Guarantors (as defined therein), and The Bank of New York Mellon Trust Company, N.A., as trustee and notes collateral agent, relating to the 8.000% senior secured notes due 2028 (Filed as Exhibit 4.1 to B&G Foods’ Current Report on Form 8-K filed on September 26, 2023, and incorporated by reference herein) |
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4.2 |
Form of 8.000% Senior Secured Notes due 2028 (included in Exhibit 4.1) |
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10.1 |
Eighth Amendment to Credit Agreement dated as of July 12, 2024, to the Amended and Restated Credit Agreement, dated as of October 2, 2015, as amended, among B&G Foods, Inc., as borrower, the subsidiaries of B&G Foods, Inc. from time to time party thereto as guarantors, the several banks and other financial institutions or entities from time to time party thereto as lenders and Barclays Bank PLC, as administrative agent for the lenders and as collateral agent for the secured parties |
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99.1 |
Press Release dated July 12, 2024 |
|
104 |
The cover page from this Current Report on Form 8-K, formatted in Inline XBRL |
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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B&G FOODS, INC. |
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Dated: July 15, 2024 |
By: |
/s/ Scott E. Lerner |
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Scott E. Lerner |
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Executive Vice President,
General Counsel and Secretary |
Exhibit 10.1
Execution Version
EIGHTH AMENDMENT TO CREDIT AGREEMENT
This EIGHTH AMENDMENT to the
Credit Agreement referred to below, dated as of July 12, 2024 (this “Eighth Amendment”) by and among B&G
FOODS, INC., a Delaware corporation, as borrower (the “Borrower”), and each of B&G FOODS NORTH AMERICA, INC.,
a Delaware corporation (“B&GNA”), B&G FOODS SNACKS, INC., a Delaware corporation (“B&GS”),
BEAR CREEK COUNTRY KITCHENS, LLC, a Delaware limited liability company (“Bear Creek”), CLABBER GIRL CORPORATION,
an Indiana corporation (“CG”), WILLIAM UNDERWOOD COMPANY, a Massachusetts business trust (“WUC”),
SPARTAN FOODS OF AMERICA, INC., a Delaware corporation (“Spartan Foods”), and VICTORIA FINE FOODS, LLC,
a Delaware limited liability company (“Victoria”) (B&GNA, B&GS, Bear Creek, CG, WUC, Spartan Foods and
Victoria, collectively, the “Guarantors”), the Lenders party hereto, and BARCLAYS BANK PLC (“Barclays”),
as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and collateral agent
for the Secured Parties (in such capacity, the “Collateral Agent”). Capitalized terms not otherwise defined
in this Eighth Amendment have the same meanings as specified in the Credit Agreement (as defined below), as amended by this Eighth Amendment.
RECITALS
WHEREAS,
the Borrower, the several Lenders (as defined in the Credit Agreement) from time to time parties thereto and the Administrative Agent,
have entered into that certain Amended and Restated Credit Agreement, dated as of October 2, 2015 (together with all exhibits and
schedules attached thereto, as amended by the First Amendment to Credit Agreement, dated as of March 30, 2017, by the Second Amendment
to Credit Agreement, dated as of November 20, 2017, by the Third Amendment to Credit Agreement, dated as of October 10, 2019,
by the Fourth Amendment to Credit Agreement, dated as of December 16, 2020, by the Fifth Amendment to Credit Agreement, dated as
of June 28, 2022, by the Sixth Amendment to Credit Agreement, dated as of June 6, 2023, by the Seventh Amendment to Credit Agreement,
dated as of September 22, 2023, and as further amended, restated, amended and restated, supplemented or otherwise modified prior
to the date hereof, the “Credit Agreement” as amended by this Eighth Amendment, the “Amended Credit
Agreement”);
WHEREAS,
the Borrower wishes to obtain term loans in an aggregate principal amount of $450,000,000 (the “Tranche B-5 Term Loan Commitments”,
and any Loans made thereunder, the “Tranche B-5 Term Loans”) and which shall be provided by the institutions
listed on Schedule I hereto as Tranche B-5 Term Loan Lenders party hereto (the “Tranche B-5 Term Loan Lenders”)
and effective on the Eighth Amendment Effective Date pursuant to the terms and subject to the conditions hereof, to refinance, together
with cash in hand, in full the Tranche B-4 Term Loans under the Credit Agreement outstanding on the Eighth Amendment Effective Date (as
defined below) together with accrued interest thereon and for other general corporate purposes;
WHEREAS,
each existing Tranche B-4 Term Loan Lender that executes and delivers a consent in the form of the Lender Consent attached to the Election
Notice Memorandum (as defined in the Cashless Roll Letter (as defined below)) posted to the Lenders (a “Lender Consent”)
will be deemed (i) to have agreed to the terms of this Amendment and the Amended Credit Agreement, (ii) to have agreed to exchange
(as further described in the Lender Consent) the Allocated Amount (as defined in the Cashless Settlement of Existing Term Loans letter
(the “Cashless Roll Letter”) by and among the Borrowers and the Administrative Agent) of its existing Tranche
B-4 Term Loans for Tranche B-5 Term Loans (as defined below) in equal principal amount, (iii) on the Eighth Amendment Effective Date,
to have exchanged (as described in the Lender Consent) the Allocated Amount of its existing Tranche B-4 Term Loans for Tranche B-5 Term
Loans in equal principal amount, which will be effectuated either by exercising a cash-less exchange option or through a cash settlement
option selected by such Lender in its Lender Consent and (iv) on and after the Eighth Amendment Effective Date become a Tranche B-5
Term Loan Lender;
WHEREAS,
the Borrower has provided a notice of reduction of the Revolving Credit Commitments from $800,000,000 to an aggregate principal amount
to $475,000,000;
WHEREAS,
the Borrower has requested to convert all Revolving Credit Commitments of any Revolving Credit Lender into Extended Revolving Credit Commitments
with the terms set forth in the Amended Credit Agreement. Each Revolving Credit Lender under the Credit Agreement immediately prior to
the Eighth Amendment Effective Date (collectively, the “Existing Revolving Lenders”) that executes and delivers
a signature page to this Fourth Amendment in the form attached hereto as Exhibit A (a “Revolving Lender Consent”)
(the “Consenting Revolving Lenders”) will be deemed (i) to have irrevocably agreed and consented to the
terms of this Eighth Amendment and the Amended Credit Agreement and (ii) to have irrevocably agreed to convert its Revolving Credit
Commitments into Eighth Amendment Revolving Credit Commitments as set forth in the Amended Credit Agreement in the amount set forth on
Schedule II next to such Revolving Credit Lender’s name on the Eighth Amendment Effective Date, on the terms and subject
to the conditions as set forth herein;
WHEREAS,
each Existing Revolving Lender that fails to execute and return a Revolving Lender Consent (each, a “Non-Consenting Lender”)
shall assign and delegate, without recourse, all of its interests, rights and obligations under the Credit Agreement to the applicable
Replacement Lenders who shall assume such obligations pursuant to a Master Assignment and Assumption Agreement in the form attached hereto
as Exhibit B (the “Assignment and Assumption”) as further set forth in this Eighth Amendment;
WHEREAS,
the Borrower has requested that the Credit Agreement be amended to, among other things, reflect the incurrence of, and the terms of, the
Tranche B-5 Term Loans, extend the maturity date of the Revolving Credit Facility, and modify other provisions of the Credit Agreement
on terms and conditions set forth in this Amendment and the Amended Credit Agreement; and
WHEREAS,
each Guarantor expects to realize, or has realized, substantial direct and indirect benefits as a result of this Eighth Amendment becoming
effective and the consummation of the transactions contemplated hereby.
NOW,
THEREFORE, in consideration of the covenants and agreements contained herein, as well as other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Article I
TRANCHE
B-5 TERM LOANS
Section 1.1 Subject
solely to the satisfaction of the conditions precedent set forth in Article IV hereof, on and as of the Eighth Amendment Effective
Date:
(a) Each
Tranche B-5 Term Loan Lender severally agrees to make Tranche B-5 Term Loans in a principal amount not to exceed its Tranche B-5 Term
Loan Commitment (including though such Consenting Term Lenders’ agreement to exchange its existing Tranche B-4 Term Loans for Tranche
B-5 Term Loans either through a cashless rollover or a cash settlement, as selected in such Lender’s Lender Consent, to Tranche
B-5 Term Loans). Amounts repaid in respect of the Tranche B-5 Term Loans may not be reborrowed. The Tranche B-5 Term Loan Commitments
will terminate in full upon the making of the Tranche B-5 Term Loans referred to herein.
(b) This
Amendment shall constitute the notice of prepayment of the Tranche B-4 Term Loans in accordance with the Credit Agreement.
(c) The
proceeds of the Tranche B-5 Term Loans shall be used to refinance in full the Tranche B-4 Term Loans outstanding on the Eighth Amendment
Effective Date (including the aggregate principal amount of the Tranche B-4 Term Loans of each Lender that are not exchanged pursuant
to Section 1.1(a)) together with accrued interest thereof, pay fees and expenses in connection therewith and for other general
corporate purposes.
Article II
revolving
credit commitments
Section 2.1 Subject
solely to the satisfaction of the conditions precedent set forth in Article IV hereof, on and as of the Eighth Amendment
Effective Date:
(a) Consenting
Lenders. Each Consenting Revolving Lender hereby (i) consents and agrees to this Eighth Amendment and the Amended Credit Agreement,
(ii) irrevocably agrees to convert its Revolving Credit Commitments into Revolving Credit Commitments as set forth in the Amended
Credit Agreement in the amount set forth on Schedule II next to such Consenting Revolving Lender’s name on the Eighth Amendment
Effective Date, on the terms and subject to the conditions set forth in the Eighth Amendment and (iii) acknowledges and confirms,
and consents to any reallocation as necessary of, its Revolving Credit Commitments in an aggregate principal amount set forth on Schedule
II hereto, which Revolving Credit Commitments will replace and terminate the Revolving Credit Commitments existing immediately prior
to the Eighth Amendment Effective Date.
(b) Non-Consenting
Lenders. The Borrower hereby gives notice to each Non- Consenting Lender that, upon receipt of Revolving Lender Consents, if such
Non-Consenting Lender has not executed and delivered a Revolving Lender Consent, such Non-Consenting Lender shall execute or be deemed
to have executed a counterpart of the Assignment and Assumption and shall in accordance therewith sell its existing Revolving Credit Loans
and Revolving Credit Commitments as specified in the Assignment and Assumption. Pursuant to the Assignment and Assumption, each Non-Consenting
Lender shall sell and assign the principal amount of its existing Revolving Credit Loans and Revolving Credit Commitments as set forth
in the Assignment and Assumption, as such Assignment and Assumption is completed by the Administrative Agent on or prior to the Eighth
Amendment Effective Date, to the applicable assignee(s) as set forth in the Assignment and Assumption (in such capacity, each a “Replacement
Lender”) under such Assignment and Assumption, solely upon the consent and acceptance by the Replacement Lenders. The Replacement
Lenders shall be deemed to have consented to this Eighth Amendment with respect to such purchased Revolving Credit Loans and Revolving
Credit Commitments at the time of such assignment, as reflected on Schedule II hereto.
(c) Revolving
Lenders. Each Consenting Revolving Lender and Replacement Lender executing a consent to this Eighth Amendment or an Assignment and
Assumption, as applicable, (i) hereby consents and agrees to this Eighth Amendment and the Amended Credit Agreement, (ii) hereby
commits to make Revolving Credit Commitments in the amount set forth next to such Revolving Credit Lender’s name on Schedule
II attached hereto and (iii) upon the Eighth Amendment Effective Date, shall make such Revolving Credit Commitments to the Borrower.
The Commitments of the Consenting Revolving Lenders and the Commitments of the Replacement Lenders (after giving effect to the assignments
from Non-Consenting Lenders as contemplated by this Eighth Amendment) shall collectively constitute one and the same “tranche”
of Commitments under the Amended Credit Agreement, and the aggregate amount of such Revolving Credit Commitments is $475,000,000. Each
Revolving Credit Lender that is not already party to the Credit Agreement hereby acknowledges, agrees and confirms, by its execution of
this Eighth Amendment, that such Revolving Credit Lender, as of the Eighth Amendment Effective Date, will be a party to the Amended Credit
Agreement and the other Loan Documents and be bound by the provisions of the Amended Credit Agreement and the other Loan Documents and,
to the extent of its Aggregate Exposure Percentage, have the rights and obligations of a Lender thereunder.
(d) Following
the Eighth Amendment Effective Date, each reference to “Revolving Credit Facility”, “Revolving Credit Loans” and
“Revolving Credit Commitments” in the Loan Documents shall be deemed to be the Revolving Credit Facility, Revolving Credit
Loans and Revolving Credit Commitments, respectively, as established pursuant to this Eighth Amendment, and each reference to “Revolving
Credit Lenders” and “Lenders” in the Loan Documents shall include the Consenting Revolving Lenders party hereto and
the Replacement Lenders. Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be
reasonably necessary to ensure that all such Revolving Credit Commitments and Revolving Credit Loans, when originally made, are Revolving
Credit Commitments and Revolving Credit Loans, respectively, for all purposes under the Loan Documents, and the Administrative Agent is
authorized to mark the Register accordingly to reflect the amendments and adjustments set forth herein.
(e) The
Administrative Agent will take those steps which it deems, in its sole discretion and in consultation with the Borrower, necessary and
appropriate to cause each Revolving Credit Lender to hold outstanding Revolving Credit Loans pro rata on the basis of their respective
Revolving Credit Commitments or on the basis of their respective outstanding Revolving Credit Loans, as the case may be from time
to time in accordance with Section 2.16 of the Amended Credit Agreement, and to hold participation interests in outstanding
Letters of Credit in accordance with Section 2.26 of the Amended Credit Agreement, in each case, immediately after giving
effect to the Eighth Amendment Effective Date such that as of the Eighth Amendment Effective Date, each Revolving Credit Lender holds
outstanding Revolving Credit Loans and participation interests in outstanding Letters of Credit pro rata on the basis of their respective
Revolving Credit Commitments. The outstanding Letters of Credit as of the Eighth Amendment Effective Date are described in Schedule
II hereto. On the Eighth Amendment Effective Date, each Revolving Credit Lender shall purchase at par from and/or sell at par to each
of the other Revolving Credit Lenders such portions of the outstanding Revolving Credit Loans, if any, as may be specified by the Administrative
Agent so that, immediately following such purchases, all SOFR Loans and all Base Rate Loans that are Revolving Credit Loans shall be held
by the Revolving Credit Lenders on a pro rata basis in accordance with their respective Revolving Credit Percentages.
(f) Subject
to the terms and conditions set forth herein and in the Credit Agreement, each Issuing Bank whose signature page appears below hereby
irrevocably agrees to the terms of this Eighth Amendment and the Amended Credit Agreement.
(g) Each
Revolving Credit Lender party hereto is reasonably satisfactory to the Administrative Agent.
Article III
AMENDMENTS
TO CREDIT AGREEMENT
Section 3.1 Amendment
of Credit Agreement. On the Eighth Amendment Effective Date, the Borrower, the Lenders party hereto, the Issuing Lender , the Administrative
Agent and the other parties party hereto agree that the Credit Agreement shall hereby be amended to delete the stricken text (indicated
textually in the same manner as the following example: stricken text) and to add
the double-underlined text (indicated textually in the same manner as the following example: double-underlined
text) as set forth in the Amended Credit Agreement attached hereto as Exhibit C and subject to the satisfaction
of the conditions precedent set forth in Article IV below.
Article IV
CONDITIONS
TO EFFECTIVENESS
The effectiveness of this
Eighth Amendment (including amendments contained in Article III) is subject to the satisfaction (or written waiver) of the
following conditions (the date of satisfaction (or written waiver) of such conditions being referred to herein as the “Eighth
Amendment Effective Date”):
Section 4.1 This
Eighth Amendment shall have been duly executed by the Borrower, the Guarantors, the Lenders party hereto and the Administrative Agent,
and delivered to the Administrative Agent;
Section 4.2 All
reasonable and documented out-of-pocket fees and expenses required to be paid hereunder (including reasonable and documented out-of-pocket
fees, charges and disbursements of Latham & Watkins LLP) or pursuant to the Amended Credit Agreement, and any other agreements
with respect to the transactions contemplated by this Eighth Amendment, shall have been paid in full in cash or will be paid in full in
cash on the Eighth Amendment Effective Date, including, without limitation, all reasonable and documented out-of-pocket expenses incurred
by the Administrative Agent in connection with the execution and delivery of this Eighth Amendment, in each case to the extent required
by the Amended Credit Agreement;
Section 4.3 Immediately
after giving effect to the transactions contemplated hereby the Borrower and its Subsidiaries shall have outstanding no Indebtedness or
preferred Capital Stock other than (A) the Loans and other extensions of credit under the Amended Credit Agreement, (B) the
Senior Notes, the New Senior Notes and the Borrower’s secured notes due 2028 and (C) the other Indebtedness permitted to be
incurred pursuant to Section 6.2 of the Amended Credit Agreement;
Section 4.4 The
Administrative Agent shall have received a customary written opinion of (i) Willkie Farr & Gallagher LLP, counsel to the
Borrower and its Subsidiaries and (ii) Ice Miller LLP, local counsel to CG;
Section 4.5 The
Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in
Section 4.3, Section 4.7 and Section 4.8;
Section 4.6 The
Administrative Agent shall have received with respect to each Loan Party (i) a certificate as of a recent date of the good standing
(or equivalent) under the laws of its jurisdiction of organization from the relevant authority of its jurisdiction of organization and
(ii) a certificate of a Responsible Officer of each Loan Party dated the Eighth Amendment Effective Date and certifying to the effect
(A) that attached thereto are copies of each Organizational Documents of such Credit Party, (B) that attached thereto is a true
and complete copy of resolutions or written consents duly adopted by the board of directors or other governing body of each Loan Party
authorizing the execution, delivery and performance of this Eighth Amendment and any related Loan Documents and the borrowings hereunder
and thereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) as
to the incumbency and specimen signature of each officer executing this Eighth Amendment or any other document delivered in connection
herewith on behalf of each Loan Party;
Section 4.7 No
Default or Event of Default has occurred and is continuing on the Eighth Amendment Effective Date both before and immediately after giving
effect to the transactions contemplated hereby;
Section 4.8 The
representations and warranties of the Borrower and each of the Guarantors set forth in Article V of this Eighth Amendment
are true and correct;
Section 4.9 The
Administrative Agent shall have received a certificate executed by the chief financial officer of the Borrower, in the form attached as
Exhibit H of the Credit Agreement, which shall document the solvency of the Borrower and its Subsidiaries, on a consolidated basis,
after giving effect to the transactions contemplated hereby;
Section 4.10 [Reserved];
Section 4.11 The
Borrower shall have provided, at least three (3) Business Days prior to the Eighth Amendment Effective Date, all information with
respect to the Loan Parties reasonably requested by the Administrative Agent in writing at least ten (10) days prior to the Eighth
Amendment Effective Date under applicable “know-your-customer” and anti-money laundering rules and regulations, including,
without limitation, Patriot Act and, if the Borrower qualifies as a “legal entity customer” thereunder, the requirements
of 31 C.F.R §1010.230;
Section 4.12 The
Administrative Agent shall have received a notice of borrowing, prior to 10:00 A.M., New York City time, one Business Day prior to the
Eighth Amendment Effective Date; and
Section 4.13 The
Borrower shall have paid (i) all interest accrued on all outstanding Revolving Credit Loans and Tranche B-4 Term Loans from the
last applicable Interest Payment Date prior to the Eighth Amendment Effective Date through the date immediately prior to the Eighth Amendment
Effective Date, and (ii) all accrued and unpaid commitment fees and letter of credit fees due pursuant to Sections 2.7(a) and
Section 2.25 of the Credit Agreement through the date immediately prior to the Eighth Amendment Effective Date, in each case regardless
of whether payment would otherwise be required under the Credit Agreement to be paid on such date.
Article V
REPRESENTATIONS
AND WARRANTIES
To induce the other parties
hereto to enter into this Eighth Amendment, the Borrower and each Guarantor represents and warrants to each of the Lenders and the Administrative
Agent that, as of the Eighth Amendment Effective Date:
(a) this
Eighth Amendment has been duly authorized, executed and delivered by the Borrower and each such Guarantor and constitutes, and the Amended
Credit Agreement constitutes, its legal, valid and binding obligation, enforceable against the Borrower and each such Guarantor in accordance
with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors’ rights generally, and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law and by principles of good faith and fair dealing;
(b) each
of the representations and warranties made by any Loan Party in or pursuant to the Amended Credit Agreement or any other Loan Document
shall be true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality”,
“Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects) on and as of
the Eighth Amendment Effective Date as if made on and as of the Eighth Amendment Effective Date (unless stated to relate to an earlier
date, in which case such representations and warranties shall be true and correct in all material respects (except to the extent any such
representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier,
in which case, it shall have been true and correct in all respects) as of such earlier date); and
(c) no
Default or Event of Default shall have occurred and be continuing on the Eighth Amendment Effective Date.
Article VI
Effects
on LOAN Documents and reaffirmation of security interests
(a) Except
as specifically amended herein or contemplated hereby, all Loan Documents shall continue to be in full force and effect and are hereby
in all respects ratified and confirmed. Except as specifically amended herein or contemplated hereby, the execution, delivery and effectiveness
of this Eighth Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any
of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect
the rights and remedies of the Lenders or the Administrative Agent under the Loan Documents. The Borrower acknowledges and agrees that,
on and after the Eighth Amendment Effective Date, this Eighth Amendment and each of the other Loan Documents to be executed and delivered
by the Borrower in connection herewith shall constitute a Loan Document for all purposes of the Amended Credit Agreement. On and after
the Eighth Amendment Effective Date, each reference in the Amended Credit Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein” or words of like import referring to the Credit Agreement, and each reference in the other
Loan Documents to “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to
the Credit Agreement shall mean and be a reference to the Amended Credit Agreement, and this Eighth Amendment and the Amended Credit Agreement
shall be read together and construed as a single instrument. Nothing herein shall be deemed to entitle the Borrower or the Guarantors
to a further consent to, or a further waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants
or agreements contained in the Amended Credit Agreement or any other Loan Document in similar or different circumstances.
(b) Each
Guarantor hereby acknowledges that it has reviewed the terms and provisions of this Eighth Amendment and consents to the amendment of
the Credit Agreement effected pursuant to this Eighth Amendment. Each Guarantor hereby (i) confirms that each Loan Document to which
it is a party or is otherwise bound and all Collateral encumbered thereby will continue to guarantee or secure, as the case may be, to
the fullest extent possible in accordance with the Loan Documents, the payment and performance of the Obligations, as the case may be,
including without limitation the payment and performance of all such applicable Obligations that are joint and several obligations of
each Grantor (as defined in the Guarantee and Collateral Agreement) now or hereafter existing, (ii) confirms its respective grant
to the Collateral Agent for the benefit of the Secured Parties of the security interest in and continuing Lien on all of such Loan Party’s
right, title and interest in, to and under all “Collateral” as defined in the Guarantee and Collateral Agreement, in each
case whether now owned or existing or hereafter acquired or arising and wherever located, as collateral security for the prompt and complete
payment and performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise,
of all applicable Obligations (including all such Obligations as amended, reaffirmed and/or increased pursuant to this Eighth Amendment),
subject to the terms contained in the applicable Loan Documents and (iii) confirms its respective guarantees, pledges, grants of
security interests and other obligations, as applicable, under and subject to the terms of each of the Loan Documents to which it is a
party.
(c) Each
Guarantor acknowledges and agrees that each of the Loan Documents to which it is a party or otherwise bound shall continue in full force
and effect and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution
or effectiveness of this Eighth Amendment.
Article VII
MISCELLANEOUS
Section 7.1 Execution
by the Administrative Agent. The Administrative Agent is entering into, and signing, this Eighth Amendment in respect of the amendments
set forth in Section 3.1 hereof.
Section 7.2 Indemnification.
The Borrower hereby confirms that the indemnification provisions set forth in Sections 2.19 (except to the extent waived hereby) and
8.7 of the Amended Credit Agreement shall apply to this Eighth Amendment and the transactions contemplated hereby.
Section 7.3 Amendments;
Execution in Counterparts; Severability.
(a) This
Eighth Amendment may not be amended nor may any provision hereof be waived except pursuant to a writing signed by the Borrower, the Lenders
party hereto and the Administrative Agent, in each case to the extent required by the Credit Agreement; and
(b) To
the extent any provision of this Eighth Amendment is prohibited by or invalid under the applicable law of any jurisdiction, such provision
shall be ineffective only to the extent of such prohibition or invalidity and only in such jurisdiction, without prohibiting or invalidating
such provision in any other jurisdiction or the remaining provisions of this Eighth Amendment in any jurisdiction.
Section 7.4 Administrative
Agent. The Borrower acknowledges and agrees that Barclays, in its capacity as administrative agent under the Credit Agreement, will
serve as Administrative Agent under this Eighth Amendment and under the Amended Credit Agreement.
Section 7.5 Governing
Law; Waiver of Jury Trial; Jurisdiction. This Eighth Amendment and any claim, controversy, dispute, proceeding or cause of action
(whether in contract or tort or otherwise) based upon, arising out of or relating to this Eighth Amendment and the transactions contemplated
hereby shall be construed in accordance with and governed by the law of the State of New York. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ITS RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY) ARISING OUT OF OR IN CONNECTION WITH THIS EIGHTH AMENDMENT, THE AMENDED CREDIT AGREEMENT OR ANY
OTHER CREDIT DOCUMENT. The provisions of Sections 9.11 and 9.12 of the Amended Credit Agreement are incorporated herein
by reference, mutatis mutandis.
Section 7.6 Headings.
Section headings in this Eighth Amendment are included herein for convenience of reference only, are not part of this Eighth Amendment
and are not to affect the construction of, or to be taken into consideration in interpreting, this Eighth Amendment.
Section 7.7 Counterparts.
This Eighth Amendment may be executed in any number of counterparts, each of which shall be deemed an original and all of which, when
taken together, shall constitute one agreement. The words “execution,” “signed,” “signature,” and
words of like import in this Eighth 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.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties
hereto have caused this Eighth Amendment to be duly executed and delivered by their respective proper and duly authorized officers as
of the day and year first above written.
| Borrower: |
| |
| B&G FOODS, INC. |
|
By: | Scott E. Lerner |
|
Name: Scott E. Lerner |
|
Title: Executive Vice President, General Counsel, Secretary and Chief Compliance Officer |
|
Guarantors: |
|
|
|
B&G
FOODS NORTH AMERICA, INC.
B&G FOODS SNACKS, INC.
BEAR CREEK COUNTRY KITCHENS,
LLC
CLABBER GIRL CORPORATION
WILLIAM UNDERWOOD COMPANY
SPARTAN FOODS OF AMERICA, INC.
VICTORIA FINE FOODS,
LLc |
|
By: |
/s/ Scott E. Lerner |
|
|
Name: Scott E. Lerner |
|
|
Title:
Executive Vice President, General Counsel, Secretary and Chief Compliance Officer |
[Signature Page to
Eighth Amendment to Credit Agreement]
| BARCLAYS
BANK PLC, as Administrative Agent, Collateral Agent and a Lender |
| By: |
/s/ Christopher M. Aitkin |
| |
Name: Christopher M. Aitkin |
| |
Title: Director |
[Signature Page to Eighth Amendment to Credit
Agreement]
The
undersigned which is an Existing Revolving Lender under the Credit Agreement hereby (i) irrevocably agrees and consents to the terms
of this Eighth Amendment and the Amended Credit Agreement in its capacity as a Revolving Credit Lender and a Replacement Lender and (ii) irrevocably
agrees to convert its Revolving Credit Commitments into Revolving Credit Commitments as set forth in the Amended Credit Agreement in the
amount set forth on Schedule II next to such Revolving Credit Lender’s name on the Eighth Amendment Effective Date, on the
terms and subject to the conditions set forth in the Eighth Amendment.
| Barclays as a Revolving Credit Lender |
| By: |
/s/ Regina Tarone |
| |
Name: Regina Tarone |
| |
Title: Managing Director |
[Signature Page to Eighth Amendment to Credit
Agreement]
The
undersigned which is an Existing Revolving Lender under the Credit Agreement hereby (i) irrevocably agrees and consents to the terms
of this Eighth Amendment and the Amended Credit Agreement in its capacity as a Revolving Credit Lender and a Replacement Lender and (ii) irrevocably
agrees to convert its Revolving Credit Commitments into Revolving Credit Commitments as set forth in the Amended Credit Agreement in the
amount set forth on Schedule II next to such Revolving Credit Lender’s name on the Eighth Amendment Effective Date, on the
terms and subject to the conditions set forth in the Eighth Amendment.
| DEUTSCHE BANK AG NEW YORK BRANCH, as a Revolving Credit Lender |
| By: |
/s/ Philip Tancorra |
| |
Name: Philip Tancorra |
| |
Title: Director |
| By: |
/s/ Lauren Danbury |
| |
Name: Lauren Danbury |
| |
Title: Vice President |
[Signature Page to Eighth Amendment to Credit
Agreement]
The
undersigned which is an Existing Revolving Lender under the Credit Agreement hereby (i) irrevocably agrees and consents to the terms
of this Eighth Amendment and the Amended Credit Agreement in its capacity as a Revolving Credit Lender and a Replacement Lender and (ii) irrevocably
agrees to convert its Revolving Credit Commitments into Revolving Credit Commitments as set forth in the Amended Credit Agreement in the
amount set forth on Schedule II next to such Revolving Credit Lender’s name on the Eighth Amendment Effective Date, on the
terms and subject to the conditions set forth in the Eighth Amendment.
| Bank of America, N.A., as a Revolving Credit Lender |
| By: |
/s/ Jana L. Baker |
| |
Name: Jana L. Baker |
| |
Title: Senior Vice President |
[Signature Page to Eighth Amendment to Credit
Agreement]
The
undersigned which is an Existing Revolving Lender under the Credit Agreement hereby (i) irrevocably agrees and consents to the terms
of this Eighth Amendment and the Amended Credit Agreement in its capacity as a Revolving Credit Lender and a Replacement Lender and (ii) irrevocably
agrees to convert its Revolving Credit Commitments into Revolving Credit Commitments as set forth in the Amended Credit Agreement in the
amount set forth on Schedule II next to such Revolving Credit Lender’s name on the Eighth Amendment Effective Date, on the
terms and subject to the conditions set forth in the Eighth Amendment.
| Royal Bank of Canada, as a Revolving Credit
Lender |
| By: |
/s/ Michael Santana-Mondo |
| |
Name: Michael Santana-Mondo |
| |
Title: Authorized Signatory |
[Signature Page to Eighth Amendment to Credit
Agreement]
The
undersigned which is an Existing Revolving Lender under the Credit Agreement hereby (i) irrevocably agrees and consents to the terms
of this Eighth Amendment and the Amended Credit Agreement in its capacity as a Revolving Credit Lender and a Replacement Lender and (ii) irrevocably
agrees to convert its Revolving Credit Commitments into Revolving Credit Commitments as set forth in the Amended Credit Agreement in the
amount set forth on Schedule II next to such Revolving Credit Lender’s name on the Eighth Amendment Effective Date, on the
terms and subject to the conditions set forth in the Eighth Amendment.
| Goldman Sachs Bank USA., as a Revolving
Credit Lender |
| By: |
/s/ Thomas Manning |
| Name: Thomas Manning |
| Title: Authorized Signatory |
[Signature Page to Eighth Amendment to Credit
Agreement]
The
undersigned which is an Existing Revolving Lender under the Credit Agreement hereby (i) irrevocably agrees and consents to the terms
of this Eighth Amendment and the Amended Credit Agreement in its capacity as a Revolving Credit Lender and a Replacement Lender and (ii) irrevocably
agrees to convert its Revolving Credit Commitments into Revolving Credit Commitments as set forth in the Amended Credit Agreement in the
amount set forth on Schedule II next to such Revolving Credit Lender’s name on the Eighth Amendment Effective Date, on the
terms and subject to the conditions set forth in the Eighth Amendment.
| JPMORGAN CHASE BANK, N.A., as a Revolving
Credit Lender |
| By: |
/s/ Scott W. Downs |
| Name: Scott W. Downs |
| Title: Vice President |
[Signature Page to Eighth Amendment to Credit
Agreement]
| MORGAN
STANLEY SENIOR FUNDING, INC., as a Revolving Credit Lender |
| By: |
/s/ Michael King |
| Name: Michael King |
| Title: Authorized Signatory |
[Signature Page to Eighth Amendment to Credit
Agreement]
The
undersigned which is an Existing Revolving Lender under the Credit Agreement hereby (i) irrevocably agrees and consents to the terms
of this Eighth Amendment and the Amended Credit Agreement in its capacity as a Revolving Credit Lender and a Replacement Lender and (ii) irrevocably
agrees to convert its Revolving Credit Commitments into Revolving Credit Commitments as set forth in the Amended Credit Agreement in the
amount set forth on Schedule II next to such Revolving Credit Lender’s name on the Eighth Amendment Effective Date, on the
terms and subject to the conditions set forth in the Eighth Amendment.
| COÖPERATIEVE RABOBANK U.A., |
| NEW
YORK BRANCH, as a Revolving Credit Lender |
| By: |
/s/ Irene Stephens |
| Name: Irene Stephens |
| Title: Executive Director |
| By: |
/s/ Kody Moran |
| Name: Kody Moran |
| Title: Vice President |
[Signature Page to Eighth Amendment to Credit
Agreement]
The
undersigned which is an Existing Revolving Lender under the Credit Agreement hereby (i) irrevocably agrees and consents to the terms
of this Eighth Amendment and the Amended Credit Agreement in its capacity as a Revolving Credit Lender and a Replacement Lender and (ii) irrevocably
agrees to convert its Revolving Credit Commitments into Revolving Credit Commitments as set forth in the Amended Credit Agreement in the
amount set forth on Schedule II next to such Revolving Credit Lender’s name on the Eighth Amendment Effective Date, on the
terms and subject to the conditions set forth in the Eighth Amendment.
| CoBank, ACB., as a Revolving Credit
Lender |
| By: |
/s/ John Trawick |
| Name: John Trawick |
| Title: Vice President |
[Signature Page to Eighth Amendment to Credit
Agreement]
Tranche B-4 Term Loan Lender Consents on file
with
Administrative Agent
Schedule I
Tranche B-5 Term Loan Commitments
Tranche B-5 Term Loan Lenders | |
Tranche B-5 Term Loans | |
Barclays Bank PLC | |
$ | 326,486,480.13 | |
Cashless
Settlement Lenders (on file with the Administrative Agent) | |
$ | 123,513,519.87 | |
Total | |
$ | 450,000,000 | |
Schedule II
Revolving Credit Commitments
Revolving Credit Lender | |
Revolving Credit Commitment | |
Barclays Bank PLC | |
$ | 77,000,000 | |
Deutsche Bank AG New York Branch | |
$ | 75,000,000 | |
Bank of America, NA | |
$ | 70,000,000 | |
Royal Bank of Canada | |
$ | 70,000,000 | |
Goldman Sachs Bank USA | |
$ | 50,000,000 | |
Coöperative Rabobank U.A., New York Branch | |
$ | 50,000,000 | |
JPMorgan Chase Bank, N.A. | |
$ | 29,500,000 | |
CoBank, ACB | |
$ | 28,500,000 | |
Morgan Stanley Senior Funding, Inc. | |
$ | 25,000,000 | |
Total | |
$ | 475,000,000 | |
Exhibit A
Existing Revolving Lender Signature Page to
Eighth Amendment to Credit Agreement
(Revolving Lender Consent)
Revolving Lender Consent to
the Eighth Amendment to Credit Agreement, dated as of July 12, 2024 (the “Eighth Amendment”), among B&G
Foods, Inc., a Delaware corporation (the “Borrower”), the Lenders party thereto, and Barclays Bank PLC
(“Barclays”), as administrative agent (in such capacity, the “Administrative Agent”).
All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Eighth Amendment.
The undersigned which is an
Existing Revolving Lender under the Credit Agreement hereby (i) irrevocably agrees and consents to the terms of this Eighth Amendment
and the Amended Credit Agreement in its capacity as a Revolving Credit Lender and a Replacement Lender and (ii) irrevocably agrees
to convert its Revolving Credit Commitments into Revolving Credit Commitments as set forth in the Amended Credit Agreement in the amount
set forth on Schedule II next to such Revolving Credit Lender’s name on the Eighth Amendment Effective Date, on the terms and subject
to the conditions set forth in the Eighth Amendment.
| [__________________________], as a Revolving Credit Lender |
| If a second signature is necessary: |
EXHIBIT B
Master Assignment and Assumption Agreement
[See attached.]
EXHIBIT C
Amended Credit Agreement
[See attached.]
Exhibit C
$1,550,000,000.00925,000,000.00
AMENDED AND RESTATED CREDIT AGREEMENT
among
B&G FOODS, INC.,
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
BARCLAYS BANK PLC,
as Administrative Agent and Collateral Agent
BARCLAYS
BANK PLC, DEUTSCHE BANK SECURITIES INC., RBC CAPITAL MARKETS1, BOFA
SECURITIES, INC., BMORBC CAPITAL MARKETS CORP.1,
GOLDMAN SACHS BANK USA
,
and
JPMORGAN CHASE BANK, N.A.,
MORGAN
STANLEY SENIOR FUNDING, as Joint Lead Arrangers and Joint Bookrunners with respect to
the Tranche B-4 Term Loan Facility,
CREDIT
SUISSE SECURITIES (USA) LLC, CAPITAL ONE, NATIONAL ASSOCIATION, CITIGROUP
GLOBAL MARKETS INC., CITIZENS BANK, N.A.,INC.,
COÖPERATIEVE RABOBANK U.A., NEW
YORK BRANCH,
and
TD
SECURITIES (USA) LLC,
COBANK,
ACB,
as Co-Managers
and Co-Documentation AgentsJoint Lead Arrangers and
Joint Bookrunners with respect to
the Tranche B-4-5
Term Loan Facility,
BARCLAYS
BANK PLC, DEUTSCHE BANK SECURITIES INC., ROYAL BANK OF CANADA, RBC
CAPITAL MARKETS, BOFA SECURITIES, INC., BMORBC CAPITAL MARKETS CORP., CITIGROUP
GLOBAL MARKETS INC., CREDIT SUISSE LOAN FUNDING LLC, GOLDMAN SACHS BANK USA
and,
JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arrangers and Joint Bookrunners with respect to the Fourth Amendment Facilities,
MORGAN
STANLEY SENIOR FUNDING, INCCITIZENS BANK, N.A.,.,
COÖPERATIEVE RABOBANK
U.A., NEW YORK BRANCH, TD SECURITIES (USA) LLC, CAPITAL ONE, NATIONAL ASSOCIATION,
SUMITOMO MITSUI BANKING CORPORATION and COBANK, ACB,
as Co-Documentation Agents with respect to the Fourth Amendment Facilities,
and
CREDIT SUISSE SECURITIES
(USA) LLC, BARCLAYS BANK PLC,
RBC
CAPITAL MARKETS, BANK OF AMERICA, N.A., BOFA SECURITIES, INC.,
DEUTSCHE BANK SECURITIES INC., CITIZENS BANK, N.A.,
TD SECURITIES (USA) LLC
and
COÖPERATIEVE
RABOBANK U.A., NEW YORK BRANCH COBANK, ACB
as Joint Lead Arrangers and Joint Bookrunners with respect to the Revolving Credit Facility,
BARCLAYS BANK PLC, RBC
CAPITAL MARKETS,DEUTSCHE BANK OF
AMERICA,
N.ASECURITIES INC., BOFA SECURITIES, INC.
and DEUTSCHE BANK SECURITIES INC.,
as Co-Syndication Agents with respect to the Revolving Credit Facility,
,
RBC CAPITAL MARKETS, GOLDMAN SACHS CITIZENSBANK
USA, JPMORGAN CHASE BANK,
N.A., TD BANK, N.A. andMORGAN
STANLEY SENIOR FUNDING, INC., COÖPERATIEVE RABOBANK
U.A., NEW YORK BRANCH,
and
as
Co-Documentation COBANK, ACB,
as Co-Syndication Agents with respect to the Revolving Credit Facility,
Dated as of October 2, 2015,
as amended by the First Amendment to Credit Agreement,
dated as of March 30, 2017,
by the Second Amendment to Credit Agreement, dated
as of November 20, 2017,
by the Third Amendment to Credit Agreement, dated
as of October 10, 2019,
by the Fourth Amendment to Credit Agreement, dated
as of December 16, 2020,
by the Fifth Amendment to Credit Agreement, dated
as of June 28, 2022, and
by the Sixth Amendment to Credit Agreement, dated
as of June 6, 2023,
by the Seventh Amendment to Credit Agreement,
dated as of September 22, 2023, and
by
the Eighth Amendment to Credit Agreement, dated as of July 12, 2024
1
RBC Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its affiliates.
1
RBC Capital Markets is a brand name for the capital markets business of Royal Bank of
Canada and its affiliates.
TABLE OF CONTENTS
Page
Section 1. DEFINITIONS |
3 |
|
1.1 |
|
Defined Terms |
3 |
|
1.2 |
|
Other Definitional Provisions |
4951 |
|
1.3 |
|
Pro Forma Basis |
4952 |
|
1.4 |
|
Divisions |
5053 |
|
1.5 |
|
Rates |
53 |
Section 2. AMOUNT AND TERMS OF COMMITMENTS; LETTERS OF CREDIT |
5154 |
|
2.1 |
|
Term Loan Commitments |
5154 |
|
2.2 |
|
Procedure for Term Loan Borrowings |
5355 |
|
2.3 |
|
Repayment of Term Loans |
5356 |
|
2.4 |
|
Revolving Credit Commitments |
5457 |
|
2.5 |
|
Procedure for Borrowing Revolving Credit Loans |
5557 |
|
2.6 |
|
Repayment of Loans; Evidence of Debt |
5558 |
|
2.7 |
|
Commitment Fees, Other Fees |
5659 |
|
2.8 |
|
Termination or Reduction of Revolving Credit Commitments |
5759 |
|
2.9 |
|
Optional Prepayments |
5760 |
|
2.10 |
|
Mandatory Prepayments |
5760 |
|
2.11 |
|
Conversion and Continuation Options |
5861 |
|
2.12 |
|
Minimum Amounts and Maximum Number of Term BenchmarkSOFR Tranches |
5962 |
|
2.13 |
|
Interest Rates and Payment Dates |
5962 |
|
2.14 |
|
Computation of Interest and Fees |
6062 |
|
2.15 |
|
Inability to Determine Interest Rate and Alternate Rate of Interest |
6063 |
|
2.16 |
|
Pro Rata Treatment and Payments |
6265 |
|
2.17 |
|
Requirements of Law |
6366 |
|
2.18 |
|
Taxes |
6568 |
|
2.19 |
|
Indemnity |
6871 |
|
2.20 |
|
Illegality |
6871 |
|
2.21 |
|
Change of Lending Office |
6871 |
|
2.22 |
|
Substitution of Lenders |
6972 |
|
2.23 |
|
L/C Commitment |
6972 |
|
2.24 |
|
Procedure for Issuance of Letter of Credit |
7073 |
|
2.25 |
|
Fees and Other Charges |
7073 |
|
2.26 |
|
L/C Participations |
7174 |
|
2.27 |
|
Reimbursement Obligation of the Borrower |
7275 |
|
2.28 |
|
Obligations Absolute |
7275 |
|
2.29 |
|
Letter of Credit Payments |
7376 |
|
2.30 |
|
Applications |
7376 |
|
2.31 |
|
Defaulting Lenders |
7376 |
|
2.32 |
|
Incremental Loans and Commitments |
7780 |
Section 3. REPRESENTATIONS AND WARRANTIES |
8083 |
|
3.1 |
|
Financial Condition |
8083 |
|
3.2 |
|
No Change |
8184 |
|
3.3 |
|
Corporate Existence; Compliance with Law |
8184 |
|
3.4 |
|
Corporate Power; Authorization; Enforceable Obligations |
8185 |
|
3.5 |
|
No Legal Bar |
8285 |
|
3.6 |
|
No Material Litigation |
8285 |
|
3.7 |
|
No Default |
8285 |
|
3.8 |
|
Ownership of Property; Liens |
8285 |
|
3.9 |
|
Intellectual Property |
8386 |
|
3.10 |
|
Taxes |
8386 |
|
3.11 |
|
Federal Regulations |
8386 |
|
3.12 |
|
Labor Matters |
8386 |
|
3.13 |
|
ERISA |
8387 |
|
3.14 |
|
Investment Company Act; Other Regulations |
8487 |
|
3.15 |
|
Subsidiaries |
8487 |
|
3.16 |
|
Use of Proceeds |
8487 |
|
3.17 |
|
Environmental Matters |
8488 |
|
3.18 |
|
Accuracy of Information, etc. |
8588 |
|
3.19 |
|
Security Documents |
8689 |
|
3.20 |
|
Solvency |
8689 |
|
3.21 |
|
Anti-Terrorism Laws; Sanctions; Anti-Corruption Laws |
8689 |
|
3.22 |
|
EEA Financial Institutions |
8790 |
Section 4. CONDITIONS PRECEDENT |
8790 |
|
4.1 |
|
Conditions to Restatement Funding Date |
8790 |
|
4.2 |
|
Conditions to Each Extension of Credit |
8992 |
Section 5. AFFIRMATIVE COVENANTS |
9093 |
|
5.1 |
|
Financial Statements |
9093 |
|
5.2 |
|
Certificates; Other Information |
9194 |
|
5.3 |
|
Payment of Obligations |
9295 |
|
5.4 |
|
Conduct of Business and Maintenance of Existence, etc. |
9295 |
|
5.5 |
|
Maintenance of Property; Insurance |
9295 |
|
5.6 |
|
Inspection of Property; Books and Records; Discussions |
9295 |
|
5.7 |
|
Notices |
9296 |
|
5.8 |
|
Environmental Laws |
9396 |
|
5.9 |
|
Additional Collateral, etc. |
9396 |
|
5.10 |
|
Further Assurances |
9598 |
|
5.11 |
|
Ratings |
9598 |
|
5.12 |
|
Use of Proceeds |
9598 |
|
5.13 |
|
Beneficial Ownership Regulation |
9699 |
Section 6. NEGATIVE COVENANTS |
9699 |
|
6.1 |
|
Financial Condition Covenants |
9699 |
|
6.2 |
|
Limitation on Indebtedness |
96100 |
|
6.3 |
|
Limitation on Liens |
99104 |
|
6.4 |
|
Limitation on Fundamental Changes |
101106 |
|
6.5 |
|
Limitation on Disposition of Property |
102106 |
|
6.6 |
|
Limitation on Restricted Payments |
102108 |
|
6.7 |
|
[Reserved.] |
103108 |
|
6.8 |
|
Limitation on Investments |
103108 |
|
6.9 |
|
Limitation on Optional Payments and Modifications of Debt Instruments, etc. |
105110 |
|
6.10 |
|
Limitation on Transactions with Affiliates |
106111 |
|
6.11 |
|
Limitation on Sales and Leasebacks |
106111 |
|
6.12 |
|
Limitation on Changes in Fiscal Periods |
106111 |
|
6.13 |
|
Limitation on Negative Pledge Clauses |
106111 |
|
6.14 |
|
Limitation on Restrictions on Subsidiary Distributions |
107112 |
|
6.15 |
|
Limitation on Lines of Business |
107112 |
Section 7. EVENTS OF DEFAULT |
107113 |
Section 8. THE AGENTS; THE ARRANGERS |
111116 |
|
8.1 |
|
Appointment |
111116 |
|
8.2 |
|
Delegation of Duties |
111117 |
|
8.3 |
|
Exculpatory Provisions |
112117 |
|
8.4 |
|
Reliance by Administrative Agent |
112118 |
|
8.5 |
|
Notice of Default |
113118 |
|
8.6 |
|
Non-Reliance on Agents and Other Lenders |
113119 |
|
8.7 |
|
Indemnification |
114119 |
|
8.8 |
|
Administrative Agent in Its Individual Capacity |
114119 |
|
8.9 |
|
Successor Agents |
114120 |
|
8.10 |
|
Authorization to Release Liens; Other Actions Relating to Security Documents |
115120 |
|
8.11 |
|
The Arrangers; the Co-Syndication Agents; the Co-Documentation Agents |
116121 |
|
8.12 |
|
Certain Proceedings |
116121 |
|
8.13 |
|
Withholding Taxes |
116122 |
|
8.14 |
|
Certain ERISA Matters |
117122 |
|
8.15 |
|
Erroneous Payments |
124 |
Section 9. MISCELLANEOUS |
119126 |
|
9.1 |
|
Amendments and Waivers |
119126 |
|
9.2 |
|
Notices |
121127 |
|
9.3 |
|
No Waiver; Cumulative Remedies |
124130 |
|
9.4 |
|
Survival of Representations and Warranties |
125130 |
|
9.5 |
|
Payment of Expenses |
125131 |
|
9.6 |
|
Successors and Assigns; Participations and Assignments |
127132 |
|
9.7 |
|
Adjustments; Set-off |
132137 |
|
9.8 |
|
Counterparts |
133138 |
|
9.9 |
|
Severability |
133138 |
|
9.10 |
|
Integration |
134138 |
|
9.11 |
|
GOVERNING LAW |
134138 |
|
9.12 |
|
Submission To Jurisdiction; Waivers |
134139 |
|
9.13 |
|
No Fiduciary Duty |
135139 |
|
9.14 |
|
Confidentiality |
135140 |
|
9.15 |
|
Release of Collateral Security and Guarantee Obligations |
136141 |
|
9.16 |
|
Accounting Changes |
138142 |
|
9.17 |
|
[Reserved.] |
138142 |
|
9.18 |
|
WAIVERS OF JURY TRIAL |
138142 |
|
9.19 |
|
Lender Action |
138143 |
|
9.20 |
|
USA PATRIOT Act Notice |
139143 |
|
9.21 |
|
Loan Modification Offers |
139143 |
|
9.22 |
|
Usury Savings Clause |
141146 |
|
9.23 |
|
Effect of Restatement |
142146 |
|
9.24 |
|
Acknowledgement and Consent to Bail-In of Affected Financial Institutions |
142147 |
|
9.25 |
|
Acknowledgement Regarding Any Supported QFCs |
143147 |
SCHEDULES: |
|
1.1(a) |
Excluded Lenders |
1.1(b) |
Existing Letters of Credit |
3.4 |
Consents, Authorizations, Filings and Notices |
3.9 |
Intellectual Property Claims |
3.15 |
Subsidiaries |
3.19(a)-1 |
UCC Filing Jurisdictions |
3.19(a)-2 |
UCC Financing Statements to Remain on File |
6.2(d) |
Existing Indebtedness |
6.3(f) |
Existing Liens |
6.10 |
Transactions with Affiliates |
EXHIBITS: |
|
A |
Form of Guarantee and Collateral Agreement |
B |
Form of Compliance Certificate |
C |
Form of Restatement Funding Date Certificate |
D |
Form of Assignment and Assumption |
E |
Form of Legal Opinion of Dechert LLP |
F-1 |
Form of Revolving Credit Note |
F-2 |
Form of Tranche A Term Note |
F-3 |
Form of Tranche B Term Note |
G-1 |
Form of U.S. Tax Compliance Certificate (For Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes) |
G-2 |
Form of U.S. Tax Compliance Certificate (For Foreign Participants that are not Partnerships for U.S. Federal Income Tax Purposes) |
G-3 |
Form of U.S. Tax Compliance Certificate (For Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes) |
G-4 |
Form of U.S. Tax Compliance Certificate (For Foreign Participants that are Partnerships for U.S. Federal Income Tax Purposes) |
H |
Form of Solvency Certificate |
AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of October 2, 2015 (as amended by the First Amendment to Credit Agreement, dated as of March 30, 2017, by the Second Amendment
to Credit Agreement, dated as of November 20, 2017, by the Third Amendment to Credit Agreement, dated as of October 10, 2019,
by the Fourth Amendment to Credit Agreement, dated as of December 16, 2020, by the Fifth Amendment to Credit Agreement, dated as
of June 28, 2022, by the Sixth Amendment to Credit Agreement, dated as of June 6, 2023, and
by the Seventh Amendment to Credit Agreement, dated as of September 22, 2023,
by the Eighth Amendment to Credit Agreement, dated as of July 12, 2024 and as further amended, restated, amended and
restated, supplemented or otherwise modified from time to time, this “Agreement”), among B&G FOODS, INC.,
a Delaware corporation (the “Borrower”), the several banks and other financial institutions or entities from time
to time party hereto as lenders (the “Lenders”) and BARCLAYS BANK PLC, as administrative agent for the Lenders (in
such capacity, together with its successors and permitted assigns in such capacity, the “Administrative Agent”) and
collateral agent for the Secured Parties (in such capacity, together with its successors and permitted assigns in such capacity, the
“Collateral Agent”), with BARCLAYS BANK PLC (“Barclays”), DEUTSCHE BANK SECURITIES INC., RBC
CAPITAL MARKETS, BOFA SECURITIES, INC., BMORBC CAPITAL MARKETS CORP., GOLDMAN SACHS BANK USA and,
JPMORGAN CHASE BANK, N.A., MORGAN STANLEY SENIOR FUNDING, INC.,
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, and COBANK, ACB, as joint lead arrangers and joint bookrunners with respect
to the Tranche B-4-5 Term Loan Facility (collectively, in such capacities, the “Tranche B-4-5 Arrangers”), CREDIT SUISSE SECURITIES (USA) LLC, CAPITAL ONE, NATIONAL ASSOCIATION,
CITIGROUP GLOBAL MARKETS INC., CITIZENS BANK, N.A., COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH and TD SECURITIES (USA) LLC, as
co-managers and co-documentation agents with respect to the Tranche B-4 Term Loan Facility (collectively, in such capacities, the “Tranche
B-4 Co-Documentation Agents”), BARCLAYS BANK PLCBarclays,
DEUTSCHE BANK SECURITIES INC., ROYAL BANK OF CANADA, RBC CAPITAL MARKETS, BOFA
SECURITIES, INC., BMORBC CAPITAL MARKETS CORP., CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE LOAN FUNDING LLC,
GOLDMAN SACHS BANK USA and,
JPMORGAN CHASE BANK, N.A., as joint lead arrangers and joint bookrunners with respect
to the Fourth Amendment Facilities (collectively, in such capacities, the “Fourth Amendment Incremental Arrangers”),
CITIZENS BANK, N.A.MORGAN STANLEY SENIOR FUNDING, INC.,
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, TD SECURITIES (USA) LLC, CAPITAL ONE, NATIONAL
ASSOCIATION, SUMITOMO MITSUI BANKING CORPORATION and COBANK, ACB (collectively, in such capacities, the “Fourth
Amendment Co-Documentation Agents”), CREDIT SUISSE SECURITIES (USA) LLC (“CS Securities”
and, together with its affiliates, “Credit Suisse”), Barclays, RBC CAPITAL MARKETS
(“RBCCM”), BOFA SECURITIES, INC. (“BofA Securities”),
DEUTSCHE BANK SECURITIES INC. (“DBSI”), CITIZENS BANK, N.A. (“Citizens”),
TD SECURITIES (USA) LLC (“TD Securities”) and COÖPERATIEVE RABOBANK U.A., NEW
YORK BRANCH (“Rabobank”)and
COBANK, ACB, as joint lead arrangers and joint bookrunners with respect to the Revolving Credit Facility (collectively, in
such capacities, the “Revolver Arrangers”, together with the Tranche B-4 Arrangers
and the Fourth Amendment Incremental-5
Arrangers, the “Arrangers”), Barclays, RBCCM, BofA Securities and DBSIDEUTSCHE
BANK SECURITIES INC., BOFA SECURITIES, INC., RBC CAPITAL MARKETS, GOLDMAN SACHS BANK USA, JPMORGAN CHASE BANK, N.A., MORGAN STANLEY
SENIOR FUNDING, INC., COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, and COBANK, ACB, as co-syndication agents with
respect to the Revolving Credit Facility (collectively, in such capacities, the “Co-Syndication Agents”) and
Citizens, TD BANK, N.A. and Rabobank, as Co-Documentation Agents with respect to the Revolving Credit Facility (collectively, in such
capacities, the “Revolver Co-Documentation Agents”, and together with the Tranche
B-4 Co-Documentation Agents and the Fourth Amendment Co-Documentation Agents, the “Co-Documentation Agents”)..
RECITALS:
WHEREAS, the Borrower, the
lenders party thereto from time to time and Credit Suisse AG, as administrative agent for the lenders and collateral agent for the secured
parties were parties to the Credit Agreement, dated as of June 5, 2014 (as amended, restated, amended and restated, supplemented
or otherwise modified from time to time prior to the SeventhEighth Amendment Effective Date, the “Existing Credit Agreement”);
WHEREAS, on the Restatement
Effective Date, the Borrower requested that the Tranche B Term Loan Lenders extend credit in the form of new Tranche B Term Loans on
the Restatement Funding Date, in an aggregate principal amount of $750,000,000;
WHEREAS, the proceeds of
the new Tranche B Term Loans were used solely for the purposes set forth in Section 3.16;
WHEREAS, the Lenders are
willing to extend credit to the Borrower on the terms and subject to the conditions set forth herein;
WHEREAS, on the First Amendment
Effective Date, the Borrower requested that Lenders lend to the Borrower $640,109,890.11 of Tranche B-2 Term Loans (as hereinafter defined),
the proceeds of which were used on the First Amendment Effective Date to refinance and repay all outstanding Tranche B Term Loans; and
WHEREAS, on the Second Amendment
Effective Date, the Borrower requested that (a) Lenders lend to the Borrower $650,109,890.11 of Tranche B-3 Term Loans (as hereinafter
defined), the proceeds of which were used on the Second Amendment Effective Date (i) to refinance and repay all outstanding Tranche
B-2 Term Loans and (ii) for general corporate purposes.
WHEREAS, the Borrower prepaid
in full the Tranche A Term Loans and the Tranche B-3 Term Loans.
WHEREAS, on the Third Amendment
Effective Date, the Borrower requested that Lenders lend to the Borrower $450,000,000.00 of Tranche B-4 Term Loans (as hereinafter defined),
the proceeds of which were used on the Third Amendment Effective Date to, together with the proceeds of New Senior Notes to be issued
on or about the Third Amendment Effective Date, refinance Borrower’s existing Senior Notes due 2021 (the “Existing Senior
Notes Due 2021”), pay certain outstanding Revolving Credit Loans under this Agreement and to pay certain fees and expenses
in connection with the foregoing.
WHEREAS, on the Fourth Amendment
Effective Date, (i) the Borrower requested that Lenders lend to the Borrower $300,000,000 of Incremental Term Loans, the proceeds
of which were used on the Fourth Amendment Effective Date to pay certain outstanding Revolving Credit Loans under this Agreement and
to pay certain fees and expenses in connection with the foregoing and (ii) the Borrower requested that Revolving Credit Lenders
convert their Revolving Credit Commitments into Extended Revolving Credit Commitments on the terms set forth herein and that Lenders
provide to the Borrower $100,000,000 of Incremental Revolving Commitments.
WHEREAS, on the Fourth Amendment
Effective Date, (i) the Fourth Amendment Incremental Term Loans automatically and without further action by any Person became additional
Tranche B-4 Term Loans (and have the same terms as the Tranche B-4 Term Loans after giving effect to the Fourth Amendment) and became
part of the same class of Loans as the Tranche B-4 Term Loans and (ii) the Fourth Amendment Incremental Term Loan Lenders automatically
and without further action by any Person became Tranche B-4 Term Loan Lenders, in each case for all purposes of this Agreement and the
other Loan Documents.
WHEREAS, on the Fifth Amendment
Effective Date, the Borrower requestsrequested that the Majority Facility Lenders of the Revolving Credit Facility consent to the amendments to Section 6.1(a) in
accordance with, and subject to the terms set forth in, the Fifth Amendment.
WHEREAS, on the Sixth Amendment
Effective Date, the LIBO Rate (as defined in the Existing Credit Agreement) shall bewas replaced as the Benchmark with Term SOFR, in accordance with, and subject to the terms set forth in, the Sixth Amendment.
WHEREAS,
on the Seventh Amendment Effective Date, the Borrower requested that, among other things, the Lenders permit the incurrence of Incremental
Equivalent Indebtedness, in accordance with, and subject to the terms set forth in, the Seventh Amendment.
WHEREAS,
on the Eighth Amendment Effective Date, (a) the Borrower requested that Lenders lend to the Borrower $450,000,000 of Tranche B-5
Loans on the Eighth Amendment Effective Date, the proceeds of which were used on the Eighth Amendment Effective Date to refinance and
repay, together with cash in hand, all outstanding Tranche B-4 Term Loans and (b) (i) the Borrower reduced the Revolving Credit
Commitments and (ii) the Borrower requested that the Revolving Credit Lenders convert their Revolving Credit Commitments into Extended
Revolving Credit Commitments as set forth in the Eighth Amendment.
NOW, THEREFORE, in consideration
of the above premises and the agreements hereinafter set forth, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS
1.1 Defined
Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective
meanings set forth in this Section 1.1.
“Acquired Business”:
substantially all of the assets comprising the Green Giant® and Le Sueur® brands business, including the “Transferred Assets”
and “Assumed Liabilities” under and as defined in the Acquisition Agreement.
“Acquired Business
Material Adverse Effect”: means any change, effect, event, occurrence or state of facts that, individually or when taken together
with all other such changes, effects, events, occurrences or states of fact, has a material adverse effect (i) on the business,
condition (financial or otherwise) or results of operations of the Acquired Business (including the Transferred Assets and Assumed Liabilities),
(ii) on the ability of Seller to consummate the Acquisition and/or (iii) the ability of Seller to substantially perform those
of its obligations under the Transition Services Agreement and the Co-Manufacturing Agreement that are necessary to avoid Purchaser being
deprived of a substantial portion of the benefits of the Acquisition (taking into account the availability of alternative arrangements
for the provision of such services and the potential for an adequate monetary remedy for any failure to so perform such obligations).
For purposes of this Agreement, “Acquired Business Material Adverse Effect” excludes any change, effect, event, occurrence
or state of facts to the extent resulting from (A) changes in Applicable Law or applicable accounting regulations or principles
to the extent not materially and disproportionately affecting the Acquired Business as compared to other parties in its industries, (B) any
outbreak or escalation of hostilities or war or any act of terrorism to the extent not materially and disproportionately affecting the
Acquired Business as compared to other parties in its industries, (C) changes in the United States, Canadian or Mexican economies,
financial markets or geopolitical conditions in general, to the extent not materially and disproportionately affecting the Acquired Business
as compared to other parties in its industries, (D) changes in industries relating to the Acquired Business in general and not specifically
relating to the Acquired Business (including fluctuations in prices of vegetable inputs), to the extent not materially and disproportionately
affecting the Acquired Business as compared to other parties in its industries, (E) the failure, in and of itself (that is, this
clause (E) will not prevent a determination that any change, effect, event, occurrence or state of facts underlying such failure,
as opposed to such failure itself, has resulted in a Acquired Business Material Adverse Effect, so long as such underlying change, effect,
event, occurrence of state of facts is not otherwise excluded from this definition of Acquired Business Material Adverse Effect), of
the Acquired Business to meet any published or internally prepared estimates of revenues, earnings or other financial projections, performance
measures or operating statistics, and (F) the execution or announcement of the Purchase Agreement (including the identity of Purchaser)
or any of the Ancillary Agreements and the consummation or announcement of the transactions contemplated hereby or thereby (including
the threatened or actual impact on relationships of the Acquired Business with customers, vendors, suppliers, distributors, landlords
or employees). Capitalized terms used in the definition of Acquired Business Material Adverse Effect above shall have the meaning assigned
to such terms in the Acquisition Agreement.
“Acquisition”:
the acquisition by B&GNA and its Affiliates from the Seller and its Affiliates of the Acquired Business.
“Acquisition Agreement”:
the Asset Purchase Agreement, dated as of September 2, 2015, between the Seller, B&GNA and the Borrower.
“Administrative Agent”:
as defined in the preamble hereto.
“Affected Financial
Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”:
as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or
cause the direction of the management and policies of such Person, whether by contract or otherwise.
“Agents”:
the collective reference to the Administrative Agent and the Collateral Agent.
“Aggregate Exposure”:
with respect to any Lender at any time, an amount equal to the sum of (a) the aggregate then unpaid principal amount of such Lender’s
Tranche B-4-5 Term Loans and (b) the amount of such Lender’s Revolving Credit Commitment then in effect or, if the Revolving
Credit Commitments have been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding.
“Aggregate Exposure
Percentage”: with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate
Exposure at such time to the sum of the Aggregate Exposures of all Lenders at such time.
“Agreement”:
as defined in the preamble hereto.
“All-In
Yield”: as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, spread adjustment, original
issue discount, upfront fees or Term SOFR or Base Rate “floor”, in each case, incurred or payable ratably to all lenders
of such Indebtedness; provided that (a) original issue discount and upfront fees shall be equated to interest based
on assumed four-year life to maturity (or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness),
(b) subject to the foregoing clause (a), “All-In Yield” shall not include prepayment premiums, arrangement, commitment,
structuring, syndication, underwriting, placement, success, advisory, ticking and unused line, consent and amendment fees or any other
fees payable in connection therewith (regardless of whether shared or paid, in whole or in part, with or to any or all lenders) that
are not generally paid ratably to all lenders providing such Indebtedness or to one or more arrangers, bookrunners, syndication and/or
documentation agents (or their affiliates) thereof, and (c) if the Other Term Loans include an interest rate floor greater than
the applicable interest rate floor under the Tranche B-4-5 Term Loans that are SOFR Loans, such differential between interest rate floors shall be equated to the applicable interest
rate margin for purposes of determining whether an increase to the interest rate margin under the Tranche B-4-5 Term Loans that are SOFR Loans shall be required, but only to the extent an increase in the interest rate floor in the Tranche
B-4-5
Term Loans that are SOFR Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest
rate floor (but not the interest rate margin) applicable to the Tranche B-4-5 Term Loans that are SOFR Loans shall be increased to the extent of such differential between interest rate floors.
“Alternative Currency”:
any currency which as of the time of any issuance or renewal, as applicable, of a Permitted Foreign Currency Letter of Credit is freely
tradeable and convertible into Dollars and has been approved as an “Alternative Currency” for the purposes of this Agreement
by the Foreign Currency L/C Issuing Lender.
“Amendment Agreement”:
the Amendment Agreement, dated as of the Restatement Effective Date, effecting, among other things, the amendment and restatement of
the Existing Credit Agreement.
“Anti-Corruption Laws”:
shall mean all laws, rules, and regulations of any jurisdiction applicable to the Loan Parties from time to time concerning or relating
to bribery or corruption, including without limitation the FCPA, the UK Bribery Act 2010 and other similar legislation in any other jurisdictions.
“Anti-Terrorism Laws”:
shall mean any laws relating to terrorism or money laundering, including Executive Order No. 13224, the PATRIOT Act, the laws comprising
or implementing the Bank Secrecy Act, and the laws administered by OFAC (as any of the foregoing laws may from time to time be amended,
renewed, extended, or replaced).
“Applicable Margin”:
(a) with respect to the Tranche B-4-5 Term Loans, 1.502.50%
in the case of Base Rate Loans, and 2.503.50%
in the case of SOFR Loans, (b) with respect to the Revolving Credit Loans, a percentage per annum determined by reference to the
Consolidated Leverage Ratio in effect from time to time as set forth below:
Consolidated
Leverage Ratio |
Applicable
Margin for
Revolving Loans that are Base
Rate Loans |
Applicable
Margin for
Revolving Loans that are
SOFR Loans |
>
4.00:1.00 |
0.751.00% |
1.752.00% |
< 4.00:1.00
>
3.50:1.00 |
0.500.75% |
1.501.75% |
< 3.50:1.00 |
0.250.50% |
1.251.50% |
(c) with respect to Other Term Loans, the
margin to be added to the Base Rate or Term SOFR, as the case may be, as agreed upon by the Borrower and the Lender or Lenders providing
the Incremental Term Loan Commitment relating thereto as provided in Section 2.32, (d) with respect to Extended Term Loans,
such percentage as shall be agreed to by the Borrower and the applicable Extending Term Lenders as shown in the applicable Loan Modification
Offer, and (e) with respect to any Extended Revolving Credit Commitment, such percentage as shall be agreed to by the Borrower and
the applicable Revolving Credit Lenders pursuant to the applicable Revolving Extension Notice.
No change in the Applicable Margin shall be effective
until three Business Days after the date on which the Administrative Agent shall have received the applicable financial statements and
a Compliance Certificate pursuant to Section 5.2(a) calculating the Consolidated Leverage Ratio. At any time the Borrower has
not submitted to the Administrative Agent the applicable information as and when required under Section 5.1, the Applicable Margin
shall be determined as if the Consolidated Leverage Ratio were in excess of 4.00:1.00. Within one Business Day of receipt of the applicable
information under Section 5.1, the Administrative Agent shall give each Lender telefacsimile or telephonic notice (confirmed in
writing) of the Applicable Margin in effect from such date. In the event that any financial statement or certificate delivered pursuant
to Section 5.1 or 5.2(a) is shown to be inaccurate (at a time when this Agreement is in effect and unpaid Obligations under
this Agreement are outstanding (other than contingent obligations in respect of which no assertion of liability (whether oral or written)
and no claim or demand for payment (whether oral or written) has been made (and, in the case of Obligations for indemnification, no notice
for indemnification has been issued by the indemnitee) at such time), and such inaccuracy, if corrected, would have led to the application
of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such
Applicable Period, then (x) the Borrower shall immediately deliver to the Administrative Agent a correct certificate required by
Section 5.2(a) for such Applicable Period and (y) the Borrower shall immediately pay to the Administrative Agent the accrued
additional interest owing as a result of such increased Applicable Margin for such Applicable Period. Nothing in this paragraph shall
limit the right of the Administrative Agent or any Lender under Section 2.13(c) or Section 7.
“Application”:
an application, in such form as the applicable Issuing Lender may specify from time to time, requesting such Issuing Lender to open a
Letter of Credit.
“Approved Fund”:
with respect to any Lender (other than an Excluded Lender) that is a fund that invests in commercial loans, any other fund that invests
in commercial loans and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
“Arrangers”:
as defined in the preamble hereto.
“Asset Sale”:
any Disposition of Property or series of related Dispositions of Property (excluding any such Disposition permitted by clause (a), (b),
(c), (d) or (g) of Section 6.5) which yields gross proceeds to the Borrower or any of its Subsidiaries (valued at the
initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market
value in the case of other non-cash proceeds) in excess of $10,000,000.
“Assignee”:
as defined in Section 9.6(d).
“Assignment and Assumption”:
each Assignment and Assumption, substantially in the form of Exhibit D, executed and delivered pursuant to Section 9.6.
“Assignor”:
as defined in Section 9.6(d).
“Attributable Debt”:
in respect of a sale and leaseback transaction, at the time of determination, the present value of the obligation of the lessee for net
rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which
such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount
rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided, however,
that if such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Attributable Debt represented thereby
will be determined in accordance with the definition of “Capital Lease Obligations.”
“Available Amount”:
at any time, the sum of (a) $600,000,000, plus (b) the cumulative amount of Excess Cash Flow of the Borrower and its
Subsidiaries for the Available Amount Reference Period plus (c) the amount of Net Cash Proceeds received by the Borrower
from the issuance of Capital Stock (other than Disqualified Stock and other than Capital Stock issued to any directors, officers or employees
pursuant to compensation arrangements) of the Borrower (or capital contributions in respect thereof) after July 1, 2023, but only
to the extent such Net Cash Proceeds are not otherwise applied to build the basket under clause (i) of the definition of “Permitted
Acquisition” or under Section 6.8(o), plus (d) an amount equal to any return (including dividends, interest, distributions,
returns of principal and profits on sale) received by the Borrower or any of the Borrower’s Subsidiaries in cash in respect of
any Investments made using the Available Amount pursuant to Section 6.8(n) for the Available Amount Reference Period; provided
that such amount may not exceed the original Investment made using the Available Amount pursuant to Section 6.8(n) for
the Available Amount Reference Period, minus (e) the aggregate amount of Restricted Payments made pursuant to Section 6.6(b)(ii) for
the Available Amount Reference Period, minus (f) the aggregate amount of Investments made using the Available Amount pursuant
to Section 6.8(n) for the Available Amount Reference Period, minus (g) [reserved], minus (h) the aggregate
amount of any refinancing, repayment, redemption, repurchase, retirement or other acquisition for consideration of Indebtedness made
with the proceeds of the Available Amount pursuant to Section 6.9(a)(C) for the Available Amount Reference Period.
“Available Amount
Reference Period”: the period commencing on July 1, 2023 and ending on the last day of the most recent Fiscal Quarter
or fiscal year for which financial statements required to be delivered pursuant to Section 5.1(a) or 5.1(b), as applicable,
and the related certificate required to be delivered pursuant to Section 5.2(a), have been received by the Administrative Agent.
“Available Revolving
Credit Commitment”: as to any Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving
Credit Commitment then in effect over (b) such Lender’s Revolving Extensions of Credit then outstanding.
“Available Tenor”
means, as of any date of determination and with respect to the then-current Benchmark, as applicable, if such 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 interest period pursuant
to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from
the definition of “Interest Period” pursuant to Section 2.15(e).
“B&GNA”:
B&G Foods North America, Inc., a Delaware corporation and a wholly owned Subsidiary of the Borrower.
“Bail-In Action”:
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”:
(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).
“Base Rate”:
for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Effective Rate plus 0.50%, (b) the
Prime Rate and (c) Term SOFR for a one-month tenor in effect on such date (or if such day is not a Business Day, the immediately
preceding Business Day) plus 1.00%; provided that if any of the rates set forth above shall be less than zero percent per annum, such
rate shall be deemed to be zero percent per annum for purposes of this Agreement. Any change in such rate announced by the Administrative
Agent shall take effect at the opening of business on the day specified in the public announcement of such change. For purposes of this
definition, “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate”
in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve
Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such
rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release
by the Federal Reserve Board (as determined by the Administrative Agent). If the Base Rate is being used as an alternate rate of interest
pursuant to Section 2.15 hereof, then the Base Rate shall be the greater of clause (a) and (b) above and shall be determined
without reference to clause (c) above.
“Base Rate Loans”:
Loans for which the applicable rate of interest is based upon the Base Rate.
“Benchmark”:
initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference
Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark
Replacement has replaced such prior benchmark rate pursuant to Section 2.15(b).
“Benchmark Replacement”:
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:
(a) Daily
Simple SOFR; or
(b) the
sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration
to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant
Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to
the then-current Benchmark for Dollar-denominated syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment.
If the Benchmark Replacement
as determined pursuant to clause (a) or (b) above would be less than 0.00%, the Benchmark Replacement will be deemed to be
0.00% for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement
Adjustment”: 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”: a date and time determined by the Administrative Agent, which date shall be no later than the earlier to occur of the
following events with respect to the then-current Benchmark:
(a) in
the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date
of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark
(or the published component used in the calculation thereof) permanently or indefinitely ceases to provide such Benchmark (or such component
thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof); or
(b) in
the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which all Available Tenors
of such Benchmark (or the published component used in the calculation thereof) has been or, if such Benchmark is a term rate, all Available
Tenors of such Benchmark (or such component thereof) have been determined and announced by the regulatory supervisor for the administrator
of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined
by reference to the most recent statement or publication referenced in such clause (c) and even if such Benchmark (or such component
thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof) continues to be provided
on such date.
For the avoidance of doubt,
if such Benchmark is a term rate, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause
(a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect
to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition
Event”: the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a) 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 such Benchmark (or such component
thereof) or, if such Benchmark is a term rate, 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
such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component
thereof);
(b) 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 such Benchmark (or such component thereof) or, if such Benchmark is a term rate, 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 such Benchmark (or such component thereof) or, if such Benchmark is a term rate,
any Available Tenor of such Benchmark (or such component thereof); or
(c) 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 such Benchmark (or such component thereof) or, if such Benchmark is a term
rate, 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,
if such Benchmark is a term rate, 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”: the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time,
no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance
with Section 2.15 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for
all purposes hereunder and under any Loan Document in accordance with Section 2.15.
“Beneficial Ownership
Certification”: a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification
shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers
published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.
“Beneficial Ownership Regulation”:
United States 31 C.F.R. § 1010.230.
“Benefited Lender”: as defined
in Section 9.7.
“BHC Act Affiliate”
of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of
such party.
“Board”:
the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Bona Fide Lending
Entity”: any bona fide (i) debt fund, (ii) investment vehicle, (iii) regulated bank entity or (iv) non-regulated
lending entity that is engaged in purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit
in the ordinary course of business.
“Borrower”:
as defined in the preamble hereto.
“Borrower Materials”:
as defined in Section 9.2.
“Borrowing Date”:
any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.
“Business Day”:
for all purposes, a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required
by law to close; provided, however, that when used in connection with Term SOFR Loan, the term “Business Day” shall mean
any such day that is also a U.S. Government Securities Business Day.
“Calculation Date”:
with respect to each Permitted Foreign Currency Letter of Credit, during the period that such Permitted Foreign Currency Letter of Credit
is outstanding (i) the last Business Day of each Fiscal Quarter, (ii) the date on which such Permitted Foreign Currency Letter
of Credit is to be issued or renewed by the Foreign Currency L/C Issuing Lender, and (iii) the date on which any draft presented
under such Permitted Foreign Currency Letter of Credit is paid by the Foreign Currency L/C Issuing Lender.
“Capital Expenditures”:
for any period, with respect to any Person, the aggregate of all expenditures by such Person and its Subsidiaries for the acquisition
or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs
and improvements during such period) which should be capitalized under GAAP on a consolidated balance sheet of such Person and its Subsidiaries
but excluding (a) expenditures financed with (i) the Net Cash Proceeds from any Reinvestment Event or (ii) the proceeds
of a Revolving Loan in the amount of Net Cash Proceeds of any Reinvestment Event that were previously used to reduce the amount of the
Revolving Loans; (b) expenditures made in cash to fund the purchase price for assets acquired in Permitted Acquisitions or incurred
by the Person acquired in the Permitted Acquisition prior to (but not in anticipation of) the closing of such Permitted Acquisition;
and (c) expenditures financed with Indebtedness permitted under Section 6.2.
“Capital Lease Obligations”:
as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the
right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for
as capital leases on a balance sheet of such Person under GAAP, and, for the purposes of this Agreement, the amount of such obligations
at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.
“Capital Stock”:
any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of
the foregoing, but excluding any debt securities convertible into, or exchangeable for, any of the foregoing.
“Capital Stock Equivalents”:
all securities convertible into or exchangeable for Capital Stock or any other Capital Stock Equivalent and all warrants, options or
other rights to purchase, subscribe for or otherwise acquire any Capital Stock or any other Capital Stock Equivalent, whether or not
presently convertible, exchangeable or exercisable.
“Cash Management Agreement”:
any agreement to provide cash management services, including treasury, depository (including interstate depository network services),
overdraft, card services (including services related to credit cards, including purchasing and commercial cards, prepaid cards, including
payroll, stored value and gift cards, merchant services processing and debit cards), electronic funds transfer, merchant process services,
supply chain finance, automated clearinghouse transactions, return items, any direct debit scheme or arrangement and other cash management
arrangements.
“Cash Management Bank”:
any Person that, (a) at the time it enters into a Cash Management Agreement with the Borrower or any of its Subsidiaries, is a Lender,
the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, in its capacity as a party to such Cash Management
Agreement, and (b) in the case of any Cash Management Agreement entered into prior to, and existing on, the Fourth Amendment Effective
Date, any Person that is, on the Fourth Amendment Effective Date, a Lender or the Administrative Agent or Affiliate of a Lender or the
Administrative Agent, in its capacity as a party to such Cash Management Agreement.
“Cash Equivalents”:
(a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency
thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition;
(b) certificates of deposit, time deposits or overnight bank deposits having maturities of six months or less from the date of acquisition
issued by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof having combined
capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated at least A-2 by S&P or P-2 by Moody’s,
or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing
ratings of commercial paper issuers generally, and maturing within six months from the date of acquisition; (d) repurchase obligations
of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more
than 30 days with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with
maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the
United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government,
the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may
be) are rated at least A by S&P or A by Moody’s; (f) securities with maturities of six months or less from the date of
acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of
this definition; and (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements
of clauses (a) through (f) of this definition.
“Change in Law”:
the occurrence, after the date of this Agreement, of any of the following: (a) the adoption of any law, rule or regulation
or treaty after the date of this Agreement, (b) any change in any law, rule or regulation or treaty or in the administration,
interpretation, implementation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance
by any Lender or the Issuing Lender (or, for purposes of Section 2.17, by any lending office of such Lender or by such Lender’s
or the Issuing Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law)
of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein
to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives
thereunder or issued in connection therewith and (ii) 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 under this clause (ii), pursuant to or in connection with Basel III, shall in each case
be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Closing Date”:
June 5, 2014.
“Co-Documentation
Agents”: as defined in the preamble hereto.
“Co-Syndication Agents”:
as defined in the preamble hereto.
“Code”:
the Internal Revenue Code of 1986, as amended from time to time.
“Collateral”:
all Property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document.
“Collateral Agent”:
as defined in the preamble hereto.
“Commitment”:
with respect to any Lender, such Lender’s Tranche A Term Loan Commitment, Tranche B Term Loan Commitment, Tranche B-2 Term Loan
Commitment, Tranche B-3 Term Loan Commitment, Tranche B-4 Term Loan Commitment (including the Fourth Amendment Incremental Term Loan
Commitments), Tranche B-5 Term Loan Commitment, Revolving
Credit Commitment or Incremental Term Loan Commitment.
“Commitment Fee Rate”:
½ of 1.00% per annum.
“Commodity Exchange
Act”: the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications”:
as defined in Section 9.2.
“Compliance Certificate”:
a certificate duly executed by a Responsible Officer substantially in the form of Exhibit B.
“Confidential Information
Memorandum”: the Confidential Information Memorandum of the Borrower dated May 15, 2014.
“Conforming
Changes”: with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation
of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base
Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the
definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”),
timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or
continuation notices, the applicability and length of lookback periods, the applicability of Section 2.19 and other technical,
administrative or operational matters) that the Administrative Agent decides in its reasonable discretion, in consultation with
the Borrower, may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration
thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides
that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines, in consultation
with the Borrower, that no market practice for the administration of any such rate exists, in such other manner of administration as
the Administrative Agent, in consultation with the Borrower, decides is reasonably necessary in connection with the administration of
this Agreement and the other Loan Documents).
“Consolidated EBITDA”:
of any Person for any period, Consolidated Net Income of such Person and its Subsidiaries for such period plus, without duplication
and to the extent reflected as a charge in the statement of such Consolidated Net Income for such period, the sum of (a) income
tax expense, (b) Consolidated Interest Expense of such Person and its Subsidiaries, amortization or writeoff of debt discount and
debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness, (c) depreciation and amortization
expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) any extraordinary,
unusual or non-recurring expenses or losses (including, whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, losses on sales of assets outside of the ordinary course of business), (f) the amount of
any non-cash compensation deduction as the result of any potential grant of Capital Stock or Capital Stock Equivalents to employees,
officers, directors or consultants and (g) any other non-cash charges, and minus, to the extent included in the statement
of such Consolidated Net Income for such period, the sum of (a) interest income (except to the extent deducted in determining Consolidated
Interest Expense), (b) any extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income for such period, gains on the sales of assets outside of the ordinary
course of business), and (c) any other non-cash income, all as determined on a consolidated basis.
“Consolidated Interest
Coverage Ratio”: for any period, the ratio on a Pro Forma Basis of (a) Consolidated EBITDA of the Borrower and its Subsidiaries
for such period to (b) Consolidated Interest Expense of the Borrower and its Subsidiaries for such period payable in cash.
“Consolidated Interest
Expense”: of any Person for any period, (a) total interest expense (including that attributable to Capital Lease Obligations)
of such Person and its Subsidiaries for such period with respect to all outstanding Indebtedness of such Person and its Subsidiaries (including,
without limitation, all commissions, discounts and other fees and charges owed by such Person with respect to letters of credit and bankers’
acceptance financing and net costs of such Person under Hedge Agreements in respect of interest rates to the extent such net costs are
allocable to such period in accordance with GAAP, but excluding any deferred financing costs relating to the incurrence of any Indebtedness)
minus (b) the total interest income of such Person for such period, determined in accordance with GAAP. Consolidated Interest Expense
shall be deemed to include all amounts characterized as of the Closing Date as interest in accordance with GAAP as in effect on the Closing
Date, whether or not such payment is characterized as interest under GAAP thereafter.
“Consolidated Leverage
Ratio”: as at the last day of any period of four consecutive Fiscal Quarters, the ratio on a Pro Forma Basis of (a) Consolidated
Total Debt on such day to (b) Consolidated EBITDA of the Borrower and its Subsidiaries for such period.
“Consolidated Net Income”:
of any Person for any period, the consolidated net income (or loss) of such Person and its Subsidiaries for such period, determined on
a consolidated basis in accordance with GAAP; provided that in calculating Consolidated Net Income of the Borrower and its consolidated
Subsidiaries for any period, there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes
a Subsidiary or is merged into or consolidated with the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person
(other than a Subsidiary) in which the Borrower or any of its Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of dividends or similar distributions and (c) the undistributed
earnings of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not
at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document, the Senior Note Indenture, the Senior
Notes, the New Senior Note Indenture, the New Senior Notes, or agreements governing other Indebtedness permitted under Section 6.2
that comply with Section 6.14) or Requirement of Law applicable to such Subsidiary.
“Consolidated Senior
Secured Debt”: all Consolidated Total Debt other than any Consolidated Total Debt that is unsecured and/or has been subordinated
to the Obligations pursuant to an agreement reasonably satisfactory to the Administrative Agent.
“Consolidated Senior
Secured Leverage Ratio”: as of the last day of any period of four consecutive Fiscal Quarters, the ratio on a Pro Forma Basis
of (a) Consolidated Senior Secured Debt on such day to (b) Consolidated EBITDA of the Borrower and its Subsidiaries for such
period.
“Consolidated Total
Assets”: at any date, the total property and assets of Borrower and its Subsidiaries at such date, determined on a consolidated
basis (on a pro forma basis after giving effect to any Permitted Acquisitions or any Investments or dispositions permitted hereunder or
by the other Loan Documents).
“Consolidated Total
Debt”: at any date, the aggregate principal amount of all Funded Debt of the Borrower and its Subsidiaries at such date, determined
on a consolidated basis less the aggregate amount of cash and Cash Equivalents of the Borrower and its Subsidiaries at such date
that is not Restricted Cash.;
provided that, commencing on the first day of the third Fiscal Quarter after any Reinvestment Event and until (x) the applicable
Reinvestment Prepayment Date occurs and the Reinvestment Deferred Amount is applied to prepayment of the Loans or other Indebtedness pursuant
to Section 2.10(d) or (y) the date on which the applicable Reinvestment Deferred Amount is applied to acquire assets useful
in the Borrower’s business (such period, the “Reinvestment Period”), the aggregate amount of cash and Cash Equivalents
of the Borrower and its Subsidiaries that is not Restricted Cash during the Reinvestment Period that may be deducted for purposes of calculating
Consolidated Total Debt shall not exceed $75,000,000.
“Contractual Obligation”:
as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such
Person is a party or by which it or any of its Property is bound.
“Control Investment
Affiliate”: as to any Person, any other Person that (a) directly or indirectly, is in control of, is controlled by, or
is under common control with, such Person and (b) is organized by such Person primarily for the purpose of making equity or debt
investments in one or more companies. For purposes of this definition, “control” of a Person means the power, directly or
indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
“Covered Entity”
any of the following:
| (a) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 252.82(b); |
| (b) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 47.3(b); or |
| (c) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 382.2(b). |
“Credit Agreement Refinancing
Indebtedness”: (a) Permitted Second Priority Refinancing Debt or (b) Permitted Unsecured Refinancing Debt, in each
case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for,
or to extend, renew, replace or refinance, in whole or part, existing Term Loans (including any successive Credit Agreement Refinancing
Indebtedness) (“Refinanced Debt”); provided that (i) such extending, renewing or refinancing Indebtedness
is in an original aggregate principal amount not greater than the aggregate principal amount of the Refinanced Debt except by an amount
equal to a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection with such Refinanced
Debt, (ii) such Indebtedness has a later maturity and a Weighted Average Life to Maturity equal to or greater than the Refinanced
Debt and (iii) such Refinanced Debt shall be repaid, defeased or satisfied and discharged, and all accrued interest, fees and premiums
(if any) in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained.
“Daily Simple SOFR”:
for any day (a “SOFR Rate Day”), a rate per annum equal to the greater of (a) SOFR for the day (such day “SOFR
Determination Date”) that is five (5) U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day
is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities
Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published
by the SOFR Administrator on the SOFR Administrator’s Website, and (b) 0.00%. If by 5:00 p.m. (New York City time) on
the second (2nd) U.S. Government Securities Business Day immediately following any SOFR Determination Date, SOFR in respect of such SOFR
Determination Date has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to the
Daily Simple SOFR has not occurred, then SOFR for such SOFR Determination Date will be SOFR as published in respect of the first preceding
U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website. 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.
“Debtor Relief Laws”:
the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States
or other applicable jurisdictions from time to time in effect.
“Default”:
any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would
constitute an Event of Default.
“Default Excess”:
as at the date of computation thereof with respect to any Defaulting Lender, the sum of the amounts of defaulted Revolving Credit Loans
and defaulted payments of such Lender at such date.
“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”:
subject to Section 2.31(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business
Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower
in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each
of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied,
or (ii) pay to the Administrative Agent, the Issuing Lender or any other Lender any other amount required to be paid by it hereunder
(including in respect of its participation in Letters of Credit) within two Business Days of the date when due, (b) has notified
the Borrower, the Administrative Agent or the Issuing Lender in writing that it does not intend to comply with its funding obligations
hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation
to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding
(which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement)
cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower,
to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder
(provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written
confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become
the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including
the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become
the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition
of any Capital Stock 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) to reject, repudiate,
disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is
a Defaulting Lender under clauses (a) through (d) above (which determination, for the avoidance of doubt, shall not be required
for a Lender to be a Defaulting Lender) shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a
Defaulting Lender (subject to Section 2.31(b)) upon delivery of written notice of such determination to the Borrower, the Issuing
Lender and each Lender.
“Derivatives Counterparty”:
as defined in Section 6.6.
“Disposition”:
with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof; and
the terms “Dispose” and “Disposed of” shall have correlative meanings.
“Disposition
Percentage”: with respect to any prepayment required by Section 2.10(b), if the Consolidated Senior Secured Leverage Ratio
for the applicable Test Period is (a) greater than 3.00:1.00, 100% of the Net Cash Proceeds from such Asset Sale or Recovery Event,
(b) less than or equal to 3.00:1.00 and greater than 2.50:1.00, 50% of the Net Cash Proceeds from such Asset Sale or Recovery Event,
and (c) less than or equal to 2.50:1.00, 0% of the Net Cash Proceeds from such Prepayment Event from such Asset Sale or Recovery
Event, in each case, with respect to such Net Cash Proceeds which exceed $20,000,000 in any Fiscal Year.
“Disqualified Stock”:
any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in
each case, at the option of the holder of such Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of such Capital Stock, in whole or in part,
on or prior to the date that is 91 days after the Latest Maturity Date. Notwithstanding the preceding sentence, any Capital Stock that
would constitute Disqualified Stock solely because the holders of such Capital Stock have the right to require the Borrower to repurchase
such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Borrower may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such
repurchase or redemption is permitted under Section 6.6.
“Dollar Equivalent”:
at any time, as to any amount denominated in an Alternative Currency, the equivalent amount in Dollars as determined on the basis of the
Exchange Rate for the purchase of Dollars with such Alternative Currency as of the most recent Calculation Date.
“Dollars”
and “$”: lawful currency of the United States of America.
“Domestic Subsidiary”:
any Subsidiary of the Borrower organized under the laws of any jurisdiction within the United States of America.
“Earliest Term Loan
Maturity Date” the Tranche B-4-5
Term Loan Maturity Date or, if applicable, the earliest scheduled maturity date of any other tranche of Term Loans hereunder.
“EEA Financial Institution”
(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”
any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”
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.
“Eighth
Amendment”: that certain Eighth Amendment to Credit Agreement, dated as of July 12, 2024, by and among the Borrower, the Subsidiary
Guarantors, the Lenders party thereto, the Administrative Agent and the Collateral Agent.
“Eighth
Amendment Effective Date”: as defined in the Eighth Amendment.
“Environmental Laws”:
any and all laws, rules, orders, regulations, statutes, ordinances, enforceable guidelines, codes, decrees, or other legally enforceable
requirements (including, without limitation, common law) of any international authority, foreign government, the United States, or any
state, local, municipal or other governmental authority, regulating, relating to or imposing liability or standards of conduct concerning
protection of the environment or of human health, or employee health and safety, as has been, is now, or may at any time hereafter be,
in effect.
“Environmental Permits”:
any and all permits, licenses, approvals, registrations, notifications, exemptions and other authorizations required under any Environmental
Law.
“ERISA”:
the Employee Retirement Income Security Act of 1974, as amended from time to time, the regulations promulgated thereunder and any successor
statute.
“ERISA Affiliate”:
any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Sections 414(b),
414(c), 414(m) or 414(o) of the Code, or solely for purposes of Section 302 or 303 of ERISA or Section 412 or 430
of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event”:
(a) any Reportable Event, (b) the failure of any Plan to meet the minimum funding standard of Section 412 or 430 of the
Code or Section 302 or 303 of ERISA, in each case, whether or not waived, (c) 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 Plan,
(d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination
of any Plan or the withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan,
(e) the receipt by the Borrower or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan under Sections 4041 and 4042 of ERISA, respectively,
(f) the adoption of any amendment to a Plan that would require the provision of security pursuant to Section 436(f) of
the Code, (g) the receipt by the Borrower or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan
from the Borrower 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 or in Reorganization, or a determination that any Multiemployer Plan is,
or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305
of ERISA, (h) the occurrence of a “prohibited transaction” (within the meaning of Section 4975 of the Code or Section 406
of ERISA) with respect to which the Borrower or any of the Subsidiaries is a “disqualified person” (within the meaning of
Section 4975 of the Code), a “party in interest” (within the meaning of Section 3(14) of ERISA) or with respect
to which the Borrower or any such Subsidiary could otherwise be liable or (i) any Foreign Benefit Event.
“EU Bail-In Legislation
Schedule” 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”:
any of the events specified in Section 7, provided that any requirement for the giving of notice, the lapse of time, or both,
has been satisfied.
“Excess Cash Flow”:
for any Fiscal Quarter or fiscal year of the Borrower (a) Consolidated EBITDA for such period (provided that, for the purpose
of this definition, Consolidated EBITDA shall not be calculated on a Pro Forma Basis), minus (b) the sum, without duplication,
of (i) the amount of any Taxes imposed by any Governmental Authority payable in cash by the Borrower and its Subsidiaries with respect
to such period (including payment of withholding taxes on behalf of employees in connection with equity compensation awards of Capital
Stock or Capital Stock Equivalents), (ii) Consolidated Interest Expense for such period paid in cash, (iii) Capital Expenditures
made in cash during such period and (iv) mandatory amortization payments pursuant to Sections 2.3(a) and 2.3(c) made in
cash by the Borrower and its Subsidiaries during such period.
“Exchange Act”:
the Securities Exchange Act of 1934, as amended.
“Exchange Rate”:
on any day, with respect to any Alternative Currency, the spot rate at which Dollars are offered on such day by the Foreign Currency L/C
Issuing Lender in New York, New York (or such other location selected by the Foreign Currency L/C Issuing Lender) for such Alternative
Currency.
“Excluded Issuance”:
an issuance and sale of Capital Stock (other than Disqualified Stock) of the Borrower to any of its equity holders.
“Excluded Lender”:
(a) each person set forth on Schedule 1.1(a) and (b) any other person and their respective Controlled Investment Affiliates
named by the Borrower, in good faith, which is engaged in the same or similar line of business as the Borrower or any of its Subsidiaries
and in each case designated by name by the Borrower as such from time to time after the Closing Date in a certificate duly executed by
a Responsible Officer of Borrower (in each case other than the Arrangers and their respective affiliates and any Bona Fide Lending Entity).
Any supplement to such list of Excluded Lenders pursuant to clause (b) above will become effective two (2) Business Days after
delivery to the Administrative Agent and shall be posted to the Lenders as a supplement to Schedule 1.1(a). In no event shall a supplement
apply retroactively to disqualify any Lender as of the date of such supplement who has previously acquired an interest in the Loans or
Commitments, but upon the effectiveness of such designation, any such Lender may not acquire any additional Loans or Commitments or participations
in Loans or Commitments.
“Excluded Swap Obligation”:
with respect to any Guarantor, (x) as it relates to all or a portion of the Guarantee of such Guarantor, any Swap Obligation if,
and to the extent that, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any
rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by
virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the
Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor becomes effective with respect to such
Swap Obligation or (y) as it relates to all or a portion of the grant by such Guarantor of a security interest, any Swap Obligation
if, and to the extent that, such Swap Obligation (or such security interest in respect thereof) is or becomes illegal under the
Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation
of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant”
as defined in the Commodity Exchange Act and the regulations thereunder at the time the security interest of such Guarantor becomes effective
with respect 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 Guarantee or security interest is
or becomes illegal.
“Excluded Taxes”:
with respect to the Administrative Agent, any Lender, the Issuing Lender or any other recipient of any payment to be made by or on account
of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is located, or as a result of a present or former connection between
the Administrative Agent, any Lender or the Issuing Lender, as applicable, and the jurisdiction imposing such tax (other than a connection
arising by reason of such 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 its rights under, or sold or
assigned an interest in this Agreement or any other Loan Document), (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction described in clause (a) above, (c) any backup withholding
tax that is required by the Code to be withheld from amounts payable to a Lender as a result of such Lender’s failure to comply
with Section 2.18(e)(ii) hereof, (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.22), any U.S. federal withholding tax that is imposed on amounts payable to such Foreign Lender under laws
in effect at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender’s failure to comply with Section 2.18(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower
with respect to such withholding tax pursuant to Section 2.18(a) and (e) any U.S. federal withholding Taxes imposed under
FATCA.
“Existing Issuing Lender”:
Bank of America, as issuer of the Existing Letters of Credit.
“Existing Letters of
Credit”: the letters of credit described in Schedule II of the Fourth Amendment.
“Existing Senior Notes
Due 2021”: as defined in the Recitals.
“Existing Tranche”:
as defined in Section 9.21(a).
“Extended Revolving
Credit Commitment”: as defined in Section 9.21(b).
“Extended Term Loans”:
as defined in Section 9.21(a).
“Extending Term Lender”:
as defined in Section 9.21(a).
“Extension”:
as defined in Section 9.21(b).
“Extension Election”:
as defined in Section 9.21(a).
“Facility”:
each of (a) the Tranche A Term Loan Commitments and the Tranche A Term Loans made thereunder (the “Tranche A Term Loan Facility”),
(b) the Tranche B Term Loan Commitments and the Tranche B Term Loans made thereunder (the “Tranche B Term Loan Facility”),
(c) the Tranche B-2 Term Loan Commitments and the Tranche B-2 Term Loans made thereunder (the “Tranche B-2 Term Loan Facility”),
(d) the Tranche B-3 Term Loan Commitments and the Tranche B-3 Term Loans made thereunder (the “Tranche B-3 Term Loan Facility”),
(e) the Tranche B-4 Term Loan Commitments and the Tranche B-4 Term Loans made thereunder (the “Tranche B-4 Term Loan Facility”),
(f) the Tranche B-5 Term Loan Commitments and the Tranche B-5 Term
Loans made thereunder (the “Tranche B-5 Term Loan Facility”), (g) the Revolving Credit Commitments and the
extensions of credit made thereunder (the “Revolving Credit Facility”) and (gh)
the extensions of credit made under any other separate tranche of Loans or Commitments hereunder consisting of (i) Extended Term
Loans converted from existing Term Loans, (ii) any new tranche of Revolving Credit Commitments established as a result of Revolving
Extension Notices or (iii) Incremental Term Loans as provided in Section 2.32.
“Fair Market Value”:
the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity
of either party, determined in good faith by the board of directors of the Borrower.
“FATCA”:
Sections 1471 through 1474 of the Code (as of the Closing Date), any regulations or other official interpretations thereof and shall also
include any amended or successor versions of such legislation that are substantively comparable and that contain requirements to avoid
withholding which are not materially more onerous than the requirements to avoid withholding under the current legislation (and any future
regulations and official interpretations), any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental
agreement between a non-U.S. jurisdiction and the United States of America with respect to the foregoing and any law, regulation or practice
adopted pursuant to any such intergovernmental agreement.
“FCPA”: United
States Foreign Corrupt Practices Act of 1977, as amended.
“Federal Funds Effective
Rate”: for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the average of the quotations for the day of such transactions
received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.
“Federal Reserve Bank
of New York’s Website”: the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor
source.
“Fifth Amendment”:
that certain Fifth Amendment to Credit Agreement, dated as of June 28, 2022, by and among the Borrower, the Subsidiary Guarantors,
the Lenders party thereto, the Administrative Agent and the Collateral Agent.
“Fifth Amendment Effective
Date”: as defined in the Fifth Amendment.
“First Amendment”:
that certain First Amendment to Credit Agreement, dated as of March 30, 2017, by and among the Borrower, the Lenders party thereto,
the Administrative Agent and the Collateral Agent.
“First Amendment Effective
Date”: as defined in the First Amendment.
“Fiscal Quarter”:
a fiscal quarter of any fiscal year of the Borrower.
“Foreign Benefit Event”:
with respect to any Foreign Pension Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable
law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, or (b) the failure to make
the required contributions or payments, under any applicable law, on or before the due date for such contributions or payments.
“Foreign Currency L/C
Issuing Lender”: with respect to any Permitted Foreign Currency Letters of Credit, the issuer thereof that, at the time such
Permitted Foreign Currency Letter of Credit was issued, was the Issuing Lender hereunder.
“Foreign Lender”:
any Lender that is not a “United States person” as defined in Section 7701(a)(30) of the Code.
“Foreign Pension Plan”:
any employee benefit plan that would be a Plan but for the fact that such employee benefit plan is maintained outside of the United States
(but excluding any plan, program or arrangement maintained or mandated by a Governmental Authority).
“Foreign Subsidiary”:
any Subsidiary of the Borrower that is not a Domestic Subsidiary.
“Foreign Subsidiary
Holding Company”: any Domestic Subsidiary of the Borrower that wholly-owns the stock of one or more Foreign Subsidiaries and
which is disregarded for United States federal income tax purposes as an entity that is separate from its owner but only so long as such
Subsidiary has no assets other than the stock of one or more Foreign Subsidiaries and de minimis other assets.
“Fourth Amendment”:
that certain Fourth Amendment to Credit Agreement, dated as of December 16, 2020, by and among the Borrower, the Subsidiary Guarantors,
the Lenders party thereto, the Administrative Agent and the Collateral Agent.
“Fourth Amendment Effective
Date”: as defined in the Fourth Amendment.
“Fourth
Amendment Facilities”: the Fourth Amendment Incremental Term Loan Facility and the Fourth Amendment Revolving
Credit Facility, each as defined in the Fourth Amendment.
“Fourth Amendment Incremental
Term Loan Commitment”: as defined in the Fourth Amendment.
“Fourth Amendment Incremental
Term Loan Lender”: any Lender with a Fourth Amendment Incremental Term Loan Commitment or an outstanding Fourth Amendment Incremental
Term Loan.
“Fourth Amendment Incremental
Term Loans”: the term loans made by the Fourth Amendment Incremental Term Loan Lender to the Borrower pursuant to the Fourth
Amendment.
“Fronting Exposure”:
at any time there is a Defaulting Lender, with respect to the Issuing Lender, such Defaulting Lender’s Revolving Credit Percentage
of the L/C Obligations with respect to Letters of Credit issued by the Issuing Lender 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.
“Funded Debt”:
as to any Person, all Indebtedness of such Person of the types described in clauses (a) through (e) of the definition of “Indebtedness”
in this Section.
“Funding Office”:
the office specified from time to time by the Administrative Agent as its funding office by notice to the Borrower and the Lenders.
“GAAP”: generally
accepted accounting principles in the United States of America as in effect from time to time, except that for purposes of Section 6.1,
GAAP shall be determined on the basis of such principles in effect on the Closing Date and consistent with those used in the preparation
of the most recent audited financial statements referred to in Section 3.1(b).
“Governmental Authority”:
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).
“Guarantee and Collateral
Agreement”: the Guarantee and Collateral Agreement, dated as of June 5, 2014, by and among the Borrower and the other Grantors
(as defined therein) in favor of the Collateral Agent, as the same may be amended, restated, amended and restated, supplemented or otherwise
modified from time to time.
“Guarantee Obligation”:
as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of credit), if to induce the creation of such obligation of such other
Person the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third
Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation
of the guaranteeing 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 (1) for the purchase or payment of any such primary obligation
or (2) 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
primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or
hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary
and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of
assets permitted under this Agreement. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation
is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying
such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are
not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good faith.
“Hedge Agreements”:
with respect to any Person or its Subsidiaries, all interest rate or currency swaps, caps or collar agreements or similar arrangements
entered into by such Person or its Subsidiaries providing for protection against fluctuations in interest rates or currency exchange rates
or the exchange of nominal interest obligations, either generally or under specific contingencies.
“Hedging Obligations”:
with respect to any specified Person, the obligations of such Person under Hedge Agreements.
“Highest Lawful Rate”:
the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the
laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter
be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.
“Incremental Assumption
Agreement”: the Fourth Amendment and any other Incremental Assumption Agreement among, and in form and substance reasonably
satisfactory to, the Borrower, the Administrative Agent and one or more Incremental Term Lenders or Incremental Revolving Lenders, as
applicable.
“Incremental Revolving
Commitment”: the Fourth Amendment Incremental Revolving Credit Commitments and any other commitment of any Lender, established
pursuant to Section 2.32, to make Incremental Revolving Loans to the Borrower.
“Incremental Revolving
Lender”: a Lender with an Incremental Revolving Commitment or an outstanding Incremental Revolving Loan.
“Incremental Revolving
Loans”: revolving loans made by one or more Lenders to the Borrower pursuant to Section 2.4(b).
“Incremental Term Borrowing”:
a Borrowing comprised of Incremental Term Loans.
“Incremental Term Lender”:
a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.
“Incremental Term Loan
Commitment”: the Fourth Amendment Incremental Term Loan Commitments and any other commitment of any Lender, established pursuant
to Section 2.32, to make Incremental Term Loans to the Borrower.
“Incremental Term Loan
Maturity Date”: the final maturity date of any Incremental Term Loan, as set forth in the applicable Incremental Assumption
Agreement.
“Incremental Term Loan
Repayment Dates”: the dates scheduled for the repayment of principal of any Incremental Term Loan, as set forth in the applicable
Incremental Assumption Agreement.
“Incremental Term Loans”:
the Fourth Amendment Incremental Term Loans and any other term loans made by one or more Lenders to the Borrower pursuant to Section 2.1(d).
Incremental Term Loans may be made in the form of additional Tranche A Term Loans, additional Tranche B-2 Term Loans, additional Tranche
B-3 Term Loans, additional Tranche B-4 Term Loans, additional Tranche
B-5 Term Loans or, to the extent permitted by Section 2.32 and provided for in the relevant Incremental Assumption Agreement,
Other Term Loans.
“Indebtedness”:
of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations
of such Person for the deferred purchase price of Property or services (other than an accrued expense, trade payables or any similar obligation
to trade creditors incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced
by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to Property acquired by such Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale of such Property), (e) all Capital Lease Obligations
of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under acceptance, letter
of credit or similar facilities, (g) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any Capital Stock of such Person (other than pursuant to clause (k) of this definition), (h) all Guarantee
Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above; (i) all
obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation
has an existing right, contingent or otherwise, to be secured by) any Lien on Property (including, without limitation, accounts and contract
rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation (provided
that, if such Person has not assumed or become liable for the payment of such obligation, the amount of Indebtedness constituted by such
obligation shall be deemed to be the lesser of (i) the stated amount thereof or (ii) the Fair Market Value of the Property encumbered
by such Lien), (j) for the purposes of Section 7(e) only, all Hedging Obligations of such Person and (k) the liquidation
value of any preferred Capital Stock of such Person or its Subsidiaries held by any Person other than such Person and its Wholly Owned
Subsidiaries if such preferred Capital Stock is mandatorily redeemable prior to the date which is 91 days after the final payment is due
on the Tranche B-4-5
Term Loans.
“Indemnified Liabilities”:
as defined in Section 9.5.
“Indemnified Taxes”:
Taxes other than Excluded Taxes.
“Indemnitee”:
as defined in Section 9.5.
“Insolvency”:
with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
“Insolvent”:
pertaining to a condition of Insolvency.
“Intellectual Property”:
the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States,
multinational or foreign laws or otherwise, including, without limitation, copyrights, copyright licenses, patents, patent licenses, trademarks,
trademark licenses, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
“Interest Payment Date”:
(a) as to any Base Rate Loan, the last Business Day of each March, June, September and December to occur while such Base
Rate Loan is outstanding and the final maturity date of such Base Rate Loan, (b) as to any SOFR Loan having an Interest Period of
three months or less, the last Business Day of such Interest Period, (c) as to any SOFR Loan having an Interest Period longer than
three months, each day which is three months, or a whole multiple thereof, after the first day of such Interest Period and the last Business
Day of such Interest Period and (d) as to any SOFR Loan or any Base Rate Loan that is a Term Loan, the date of any repayment or prepayment
made in respect thereof.
“Interest Period”:
as to any SOFR Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to
such SOFR Loan and ending one, three or six months thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion,
as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such SOFR Loan and ending one, three or six months thereafter, as selected by the Borrower by irrevocable
notice to the Administrative Agent not less than three Business Days prior to the last day of the then current Interest Period with respect
thereto; provided that, all of the foregoing provisions relating to Interest Periods are subject to the following:
(a) if
any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(b) any
Interest Period that would otherwise extend beyond the Revolving Credit Termination Date or beyond the date final payment is due on the
Tranche B-4-5
Term Loans, any other Term Loans, as the case may be, shall end on the Revolving Credit Termination Date, the Tranche B-4-5
Term Loan Maturity Date or the Latest Maturity Date, as applicable; and
(c) any
Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month; and
(d) the
Borrower shall select Interest Periods so as not to require a payment or prepayment of any SOFR Loan during an Interest Period for such
SOFR Loan.
“Investments”:
as defined in Section 6.8.
“Issuing Lender”:
the Existing Issuing Lender and any other Lender selected by the Borrower, with the consent of such Lender and the Administrative Agent,
to act as Issuing Lender, in its capacity as issuer of any Letter of Credit.
“L/C Commitment”:
$50,000,000.
“L/C Disbursement”:
a payment or disbursement made by the Issuing Lender pursuant to a Letter of Credit issued by the Issuing Lender.
“L/C Fee Payment Date”:
the last Business Day of each March, June, September and December and the last day of the Revolving Credit Commitment Period.
“L/C Obligations”:
at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of L/C Disbursements that have not then been reimbursed pursuant to Section 2.27. The L/C
Obligations of any Revolving Credit Lender at any time shall equal its Revolving Credit Percentage of the aggregate L/C Obligations at
such time.
“L/C Participants”:
the collective reference to all the Revolving Credit Lenders other than the relevant Issuing Lender.
“Latest Maturity Date”:
at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including
the latest maturity or expiration date of any Incremental Term Loan, Other Term Loan, Extended Term Loan or Extended Revolving Credit
Commitment, in each case as extended in accordance with this Agreement from time to time.
“Lenders”:
each Revolving Credit Lender, each Tranche A Term Loan Lender, each Tranche B Term Loan Lender, each Tranche B-2 Term Loan Lender, each
Tranche B-3 Term Loan Lender, each Tranche B-4 Term Loan Lender (including each Fourth Amendment Incremental Term Loan Lender),
each Tranche B-5 Term Loan Lender and each other bank, financial institution or other entity from time to time party to this
Agreement as a Lender.
“Letters of Credit”:
as defined in Section 2.23(a).
“Lien”: any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest
or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect
as any of the foregoing).
“Liquidity”:
the aggregate amount of cash and/or Cash Equivalents on the balance sheet of the Borrower and its Subsidiaries at such date that is not
Restricted Cash plus unfunded principal amount available to the Borrower under the Revolving Credit Facility.
“Loan”: any
loan made by any Lender pursuant to this Agreement.
“Loan Documents”:
this Agreement, the Applications, the Security Documents, the Amendment Agreement, each Incremental Assumption Agreement, the Notes, the
First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh
Amendment, the Eighth Amendment and all other documents, instruments
or agreements designated therein as “Loan Documents” and executed and delivered by a Loan Party for the benefit of any Agent,
the Issuing Lender or any Lender in connection herewith on or after the Closing Date, in each case, as the same may be amended, restated,
amended and restated, supplemented or otherwise modified from time to time.
“Loan Modification
Offer”: as defined in Section 9.21(a).
“Loan Parties”:
the Borrower and each Subsidiary Guarantor.
“Majority Facility
Lenders”: (a) with respect to the Tranche A Term Loan Facility, the holders of more than 50% of the aggregate unpaid principal
amount of the Tranche A Term Loans outstanding, (b) with respect to the Tranche B Term Loan Facility, the holders of more than 50%
of the aggregate unpaid principal amount of the Tranche B Term Loans outstanding , (c) with respect to the Tranche B-2 Term Loan
Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Tranche B-2 Term Loans outstanding, (d) with
respect to the Tranche B-3 Term Loan Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Tranche B-3
Term Loans outstanding, (e) with respect to the Tranche B-4 Term Loan Facility, the holders of more than 50% of the aggregate unpaid
principal amount of the Tranche B-4 Term Loans outstanding, and (f) with
respect to the Tranche B-5 Term Loan Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Tranche B-5
Term Loans outstanding and (g) with respect to the Revolving Credit Facility, prior to any termination of the Revolving
Credit Commitments, the holders of more than 50% of the Total Revolving Credit Commitments and thereafter, of the Total Revolving Extensions
of Credit.
“Material Adverse Effect”:
a material adverse effect on (i) the business, assets, property or financial condition of the Borrower and its Subsidiaries taken
as a whole or (ii) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies
of the Administrative Agent or the Lenders hereunder or thereunder.
“Material Environmental
Amount”: an amount or amounts payable by the Borrower and/or any of its Subsidiaries, in the aggregate in excess of $5,000,000
in respect of any one occurrence, for: costs to comply with any Environmental Law; costs of any investigation, and any remediation, of
any Material of Environmental Concern; and compensatory damages (including, without limitation damages to natural resources), punitive
damages, fines, and penalties pursuant to any Environmental Law.
“Materials of Environmental
Concern”: any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products, polychlorinated biphenyls,
urea-formaldehyde insulation, asbestos, pollutants, contaminants, radioactivity, and any other substances or forces of any kind, whether
or not any such substance or force is defined as hazardous or toxic under any Environmental Law, that is regulated pursuant to or could
reasonably be expected to give rise to liability under any Environmental Law.
“Minimum Collateral
Amount”: at any time, (a) with respect to cash collateral consisting of cash or deposit account balances, an amount equal
to 105% of the Fronting Exposure of the Issuing Lender with respect to Letters of Credit issued by the Issuing Lender and outstanding
at such time and (b) for purposes of Section 2.31, an amount reasonably determined by the Administrative Agent and the Issuing
Lender; provided that such amount does not exceed the amount set forth in clause (a) hereof.
“Moody’s”:
Moody’s Investors Service, Inc.
“Multiemployer Plan”:
a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Cash Proceeds”:
(a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents (including
any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such Asset Sale or Recovery Event, net of reasonable and customary attorneys’
fees, accountants’ fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien
expressly permitted hereunder on any asset which is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to
a Security Document) and other reasonable and customary fees and expenses actually incurred in connection therewith and net of taxes paid
or reasonably estimated to be payable as a result thereof, and (b) in connection with any issuance or sale of debt or equity securities
or instruments or the incurrence of loans, the cash proceeds received from such issuance or incurrence, net of attorneys’ fees,
investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually
incurred in connection therewith.
“New Senior Notes”:
the senior notes of the Borrower issued from time to time pursuant to the New Senior Note Indenture.
“New Senior Note Indenture”:
the Base Indenture, dated as of June 4, 2013, entered into by the Borrower and The Bank of New York Mellon Trust Company, N.A., as
trustee, the Supplemental Indenture entered into on April 3, 2017 by the Borrower, the “Guarantors” under and as defined
therein and The Bank of New York Mellon Trust Company N.A., as trustee, and the Tenth Supplemental Indenture, dated as of September 26,
2019, by the Borrower, the “Guarantors” under and as defined therein and The Bank of New York Mellon Trust Company N.A., as
trustee, in each case in connection with the issuance of the New Senior Notes, together with all instruments and other agreements entered
into by the Borrower or such Subsidiaries in connection therewith, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with Section 6.9.
“Non-Defaulting Lender”:
as defined in Section 2.31(a)(ii).
“Notes”:
the collective reference to each promissory note, if any, evidencing Loans.
“Obligations”:
the unpaid principal of and interest on (including, without limitation, interest accruing after the maturity of the Loans and Reimbursement
Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to any Loan Party, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations, Specified Cash Management Agreements, payments for early termination of Specified Hedge Agreements
and all other obligations and liabilities of the Loan Parties to any Agent, any Arranger, the Issuing Lender, any Co-Syndication Agent,
the Co-Documentation Agents, any Lender, any Qualified Counterparty, any Cash Management Bank or any Foreign Currency L/C Issuing Lender,
whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified Cash Management Agreement,
any Specified Hedge Agreement, any Permitted Foreign Currency Letters of Credit or any other document made, delivered or given in connection
herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all fees, charges and disbursements of counsel to the Agents, the Arrangers, the Issuing Lender, the Co-Syndication
Agents, the Co-Documentation Agents and the Lenders that are required to be paid by the Borrower pursuant hereto) or otherwise; provided
that (i) obligations of the Borrower or any Subsidiary under any Specified Cash Management Agreement, Specified Hedge Agreement or
in respect of any Permitted Foreign Currency Letter of Credit shall be secured and guaranteed pursuant to the Security Documents only
to the extent that, and for so long as, the other Obligations are so secured and guaranteed, (ii) any release of Collateral or Subsidiary
Guarantors or any waiver or modification of any other provision in the Loan Documents regarding the Collateral effected in accordance
with Section 9.15 shall not require the consent of holders of obligations under Specified Cash Management Agreement, Specified Hedge
Agreements or in respect of Permitted Foreign Currency Letters of Credit and (iii) the “Obligations” shall exclude any
Excluded Swap Obligations.
“OFAC”: United
States Treasury Department’s Office of Foreign Assets Control.
“OID”: as
defined in Section 2.32(b).
“Original Closing Date”:
November 30, 2011.
“Other Taxes”:
any and all present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies arising from
any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document, excluding any such Taxes resulting from an assignment by any Lender pursuant to Section 9.6 hereof.
“Other Term Loans”:
as defined in Section 2.32(a).
“Pari Passu Intercreditor
Agreement”: as defined in Section 6.2(p).
“Participant”:
as defined in Section 9.6(b).
“Participant Register”:
as defined in Section 9.6(b).
“Payment Office”:
the office specified from time to time by the Administrative Agent as its payment office by notice to the Borrower and the Lenders.
“PBGC”: the
Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor statute.
“Permitted Acquisition”:
any acquisition by the Borrower or any of its Subsidiaries of all of the Capital Stock of, or all or substantially all of the assets constituting
a business unit of, any other Person so long as, with respect to any such acquisition having aggregate consideration in excess of $100,000,000,
the following conditions are satisfied:
(a) either
(i) no Default or Event of Default shall have occurred and be continuing or would result from such acquisition or (ii) if the
Lenders providing an Incremental Term Loan or Incremental Revolving Loan to finance a Permitted Acquisition have agreed to a “funds
certain” provision, then no Default or Event of Default shall have occurred and be continuing under Section 7(a) or
(f);
(b) the
Borrower shall be in compliance with the financial covenants set forth in Section 6.1, after giving pro forma effect to such
acquisition as if it had occurred on the first day of the respective periods measured by such covenants;
(c) the
target of such acquisition shall be in the same or a similar line of business as the Borrower and its Subsidiaries;
(d) [Reserved];
(e) the
Borrower shall have performed reasonable and customary due diligence with respect to such acquisition and the target thereof, including
with respect to environmental matters;
(f) the
Borrower and/or the applicable Subsidiary shall have obtained all material third party consents and approvals required in connection with
such acquisition;
(g) [Reserved];
(h) the
Borrower shall have reasonably determined that it has adequate liquidity available for working capital; and
(i) with
respect to any such acquisition having aggregate consideration in excess of $250,000,000, substantially all of the assets so acquired
are located in the United States, Canada, Mexico or any member state of the European Union or if such acquisition is structured as a purchase
of stock, the Person so acquired is organized under the laws of a state of the United States, Canada, Mexico and member states of the
European Union and substantially all of the assets owned by such Person are located in the United States, Canada, Mexico or any member
state of the European Union; provided that (i) the Borrower may acquire the stock of a Person organized under the laws of
a state of the United States whose assets are located, in whole or in part, in Puerto Rico, Canada, Mexico or any member state of the
European Union, if such Person becomes a Subsidiary Guarantor and grants a security interest in its assets as contemplated by Section 5.9
and (ii) the Borrower may acquire the stock of any Person organized under the laws of any jurisdiction other than the United States,
Canada, Mexico or any member state of the European Union, so long as the aggregate amount of Investments made pursuant to this clause
(ii), together with Investments made as permitted by Section 6.8(o), does not exceed an amount equal to the sum of (A) $200,000,000
plus (B) the amount of proceeds received as consideration for such Permitted Acquisition from Excluded Issuances after the
Closing Date less the proceeds of any such Excluded Issuances that have been used after the Closing Date to make Investments pursuant
to Section 6.8(o) or to finance any other Permitted Acquisition.
“Permitted Foreign
Currency Letter of Credit”: any letter of credit denominated in a currency other than Dollars issued to the Borrower by the
Foreign Currency L/C Issuing Lender. For the avoidance of doubt, no Permitted Foreign Currency Letter of Credit shall be a Letter of Credit
for any purpose under the Loan Documents.
“Permitted Second Priority
Refinancing Debt”: secured Indebtedness incurred by the Borrower in the form of one or more series of second lien secured notes
or second lien secured loans; provided that (i) such Indebtedness is secured by the Collateral on a second lien, subordinated
basis to the Obligations and is not secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral,
(ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Term Loans, (iii) such Indebtedness
does not mature or have scheduled amortization or payments of principal prior to the date that is 91 days after the Latest Maturity Date
at the time such Indebtedness is incurred, (iv) the security agreements relating to such Indebtedness are substantially the same
as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent; provided that such
differences are not more favorable to the investors in such secured Indebtedness), (v) such Indebtedness is not also incurred by
or guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors and is not incurred by or guaranteed by any other
Person, (vi) an agent or representative acting on behalf of the holders of such Indebtedness (a “Second Lien Agent”)
shall have become party to an intercreditor agreement in form and substance satisfactory to the Administrative Agent (the “Second
Lien Intercreditor Agreement”); provided that, if such Indebtedness is the initial Permitted Second Priority Refinancing
Debt incurred by the Borrower, then the Borrower, the Subsidiary Guarantors, the Administrative Agent and the Second Lien Agent for such
Indebtedness shall have executed and delivered the Second Lien Intercreditor Agreement, (vii) the other terms and conditions of such
secured Indebtedness are on the whole substantially identical to, or less favorable to the investors providing such secured Indebtedness,
than those applicable to the Refinanced Debt (except for (x) pricing, fees, rate floors and prepayment or redemption premiums, which
shall reflect market terms and conditions at the time of incurrence or issuance, (y) covenants or other provisions applicable only
to periods after the date that is 91 days after the Latest Maturity Date that is in effect on the date such Indebtedness is issued, incurred
or obtained and (z) differences that reflect the nature of such secured debt as fixed or floating rate securities), and (viii) a
Responsible Officer shall have certified compliance with the foregoing requirements and that the incurrence of such Indebtedness complies
with Section 6.2.
“Permitted Unsecured
Refinancing Debt”: unsecured Indebtedness incurred by the Borrower in the form of one or more series of senior unsecured notes
or loans; provided that (i) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Term Loans,
(ii) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is 91 days
after the Latest Maturity Date at the time such Indebtedness is incurred, (iii) such Indebtedness is not also incurred by or guaranteed
by any Subsidiaries of the Borrower other than the Subsidiary Guarantors and is not incurred by or guaranteed by any other Person, (iv) such
Indebtedness is not secured by any Lien on any property or assets of the Borrower or any of its Subsidiaries, (v) the terms of such
Indebtedness, taken as a whole, are not materially less favorable to the Borrower and the Subsidiary Guarantors than the terms of the
Refinanced Debt and (vi) a Responsible Officer shall have certified compliance with the foregoing requirements and that the incurrence
of such Indebtedness complies with Section 6.2.
“Person”:
an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
“Plan”: any
“employee pension benefit plan” as defined in Section 3(2) of ERISA (other than a Multiemployer Plan) subject to
the provisions of Title IV of ERISA or Section 412 or 430 of the Code or Section 302 or 303 of ERISA, and in respect of
which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be)
an “employer” as defined in Section 3(5) of ERISA.
“Platform”:
as defined in Section 9.2.
“Principals”:
the members of management of the Borrower or any of its Subsidiaries as of the Closing Date.
“Pro Forma Basis”:
for purposes of calculating the financial covenants set forth in Section 6.1 or any other financial ratio or test, such calculation
shall be made in accordance with Section 1.3.
“Pro Forma Financial
Statements”: as defined in Section 3.1(a).
“Projections”:
as defined in Section 5.2(b).
“Property”:
any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including,
without limitation, Capital Stock.
“PTE”: a
prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender”:
as defined in Section 9.2.
“QFC” has
the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D).
“Qualified Counterparty”:
with respect to any Specified Hedge Agreement, any counterparty thereto that, at the time such Specified Hedge Agreement was entered into,
was a Lender or an Affiliate of a Lender.
“Reaffirmation Agreement”:
the Reaffirmation Agreement, dated as of the Third Amendment Effective Date, by and among, the Borrower and the other Grantors (as defined
therein) in favor of the Collateral Agent, as the same may be amended, restated, amended and restated, supplemented or otherwise modified
from time to time.
“Recovery Event”:
any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset
of the Borrower or any of its Subsidiaries.
“Refinancing Arranger”:
Barclays Bank PLC.
“Register”:
as defined in Section 9.6(e).
“Regulation U”:
Regulation U of the Board as in effect from time to time.
“Reimbursement Obligation”:
the obligation of the Borrower to reimburse the relevant Issuing Lender pursuant to Section 2.27 for amounts drawn under Letters
of Credit.
“Reinvestment Deferred
Amount”: with respect to any Reinvestment Event, the Disposition
Percentage of the aggregate Net Cash Proceeds received by the Borrower or any of its Subsidiaries in connection therewith that
are not applied to prepay the Loans pursuant to Section 2.10(b) as a result of the delivery of a Reinvestment Notice.
“Reinvestment Event”:
any Asset Sale or Recovery Event in respect of which the Borrower has delivered a Reinvestment Notice.
“Reinvestment Notice”:
a written notice executed by a Responsible Officer stating that no Default or Event of Default has occurred and is continuing and that
the Borrower (directly or indirectly through a Wholly Owned Subsidiary) intends and expects to use all or a specified portion of the Net
Cash Proceeds of an Asset Sale or Recovery Event to acquire assets useful in its or such Subsidiary’s business.
“Reinvestment
Period”: as defined in the definition of “Consolidated Total Debt.”
“Reinvestment Prepayment
Amount”: with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended
prior to the relevant Reinvestment Prepayment Date to acquire assets useful in the Borrower’s business.
“Reinvestment Prepayment
Date”: with respect to any Reinvestment Event, the earlier of (a) the date occurring 360540
days after such Reinvestment Event (provided that if the Borrower enters into a legally binding commitment to reinvest the applicable
Reinvestment Deferred Amount prior to such date, the Reinvestment Prepayment Date shall be extended for 180 days) and (b) the date
on which the Borrower shall have determined not to, or shall have otherwise ceased to, acquire assets useful in the Borrower’s business
with all or any portion of the relevant Reinvestment Deferred Amount.
“Related Parties”:
(a) with respect to any Agent, any Arranger, any Co-Syndication Agent, any Co-Documentation Agent, the Issuing Lender or any Lender,
such Person’s Affiliates and the respective directors, trustees, officers, employees, agents, administrators, managers, partners,
advisors, controlling persons, representatives and members of such Person and of such Person’s Affiliates, and (b) in all other
cases, any (i) controlling stockholder, 66⅔% (or more) owned Subsidiary, or immediate family member (in the case of an individual)
of any Principal, or (ii) any trust, corporation, partnership, limited liability company or other entity, the beneficiaries, stockholders,
partners, members, owners or Persons beneficially holding 66⅔% or more controlling interest of which consist of any one or more
Principals and/or such other Persons referred to in the immediately preceding clause (i).
“Relevant Governmental
Body” the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened
by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“Reorganization”:
with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.
“Reportable Event”:
any “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan
(other than an event for which the 30-day notice period is waived).
“Repricing Transaction”:
the prepayment or refinancing of all or a portion of the Tranche B-4-5
Term Loans with the incurrence by the Borrower or any of its Subsidiaries of any senior bank loan financing (other than in connection
with a Specified Change in Control or a Transformative Acquisition) having an All-In Yield (as determined by the Administrative Agent
consistent with generally accepted financial practice) that is less than the All-In Yield (as determined by the Administrative Agent on
the same basis) of such Tranche B-4-5
Term Loans, including without limitation, as may be effected through any amendment to this Agreement, including any amendment to this
Agreement relating to the All-In Yield of, such Tranche B-4-5
Term Loans (including any mandatory assignment in connection therewith).
“Required Lenders”:
at any time, Lenders having Loans, L/C Obligations and unused Revolving Credit Commitments and Term Loan Commitments the holders of more
than 50% of the sum of all Loans outstanding, L/C Obligations, and unused Revolving Credit Commitments and Term Loan Commitments at such
time; provided that the Revolving Credit Loans, L/C Obligations and unused Revolving Credit Commitments and Term Loan Commitments
of any Defaulting Lender or Excluded Lender shall be disregarded in the determination of the Required Lenders at any time.
“Requirement of Law”:
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 to which such Person or any of its Property is subject.
“Resolution Authority”:
an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”:
the chief executive officer, president or chief financial officer of the Borrower, but in any event, with respect to financial matters,
the chief financial officer of the Borrower.
“Restatement Effective
Date”: the date on which each of the conditions precedent in Section 5 of the Amendment Agreement have been satisfied,
but in any event, no later than October 2, 2015.
“Restatement Funding
Date”: the date on which each of the conditions precedent in Section 6 of the Amendment Agreement were satisfied and the
funding of the Tranche B Term Loans, but in any event, no later than December 31, 2015; provided that such date will be extended
to February 29, 2016 to the extent so extended pursuant to the terms of Section 12.05(b) of the Acquisition Agreement as
in effect on the Restatement Funding Date.
“Restricted Cash”:
cash and Cash Equivalents held by a Subsidiary that is contractually restricted from being distributed to the Borrower; provided,
that cash or Cash Equivalents maintained by any Foreign Subsidiary that is subject to minority shareholder approval before being
distributed to the Borrower shall not deemed to be “Restricted Cash” as a result of such restriction.
“Restricted Payments”:
as defined in Section 6.6.
“Revolving Credit Commitment”:
as to any Lender, the obligation of such Lender to make Revolving Credit Loans and participate in Letters of Credit, in an aggregate principal
and/or face amount not to exceed the amount set forth under the heading “FourthEighth
Amendment Revolving Credit Commitment” opposite such Lender’s name on Schedule I to the FourthEighth
Amendment on the FourthEighth
Amendment Effective Date, or, as the case may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto,
as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of Total Revolving Credit Commitments
as of the FourthEighth
Amendment Effective Date is $800,000,000475,000,000.
“Revolving Credit Commitment
Period”: the period from and including the Closing Date to the Revolving Credit Termination Date.
“Revolving Credit Facility”:
as defined in the definition of “Facility” in this Section 1.1.
“Revolving Credit Lender”:
each Lender that has a Revolving Credit Commitment or that is the holder of Revolving Credit Loans.
“Revolving Credit Loans”:
the revolving loans made by the Lenders to the Borrower pursuant to Section 2.4(a).
“Revolving Credit Percentage”:
as to any Lender at any time, the percentage which such Lender’s Revolving Credit Commitment then constitutes of the Total Revolving
Credit Commitments (or, at any time after the Revolving Credit Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender’s Revolving Credit Loans then outstanding constitutes of the aggregate principal amount
of the Revolving Credit Loans then outstanding).
“Revolving Credit Termination
Date”: the earlier of (a) December 16, 20252028,
(b) the date that is ninetyninety-one
(9091)
days prior to the Earliest Term Loan Maturity Date, (c) the date that is ninetyninety-one
(9091)
days prior to the earliest then applicable maturity date of the Senior Notes,
the New Senior Notes and Borrower’s existing secured notes due 2028, and (d) such other earlier date as the Revolving
Credit Commitments shall terminate in full hereunder. With respect to Extended Revolving Credit Commitments, Revolving Credit Loans extended
pursuant thereto, and Letters of Credit issued thereunder, clauses (a), (b) and (c) above shall be deemed replaced with the
date specified in the applicable Revolving Extension Notice for any such Extended Revolving Credit Commitments.
“Revolving Extension
Notice”: as defined in Section 9.21(b).
“Revolving Extensions
of Credit”: as to any Lender at any time, an amount equal to the sum of (a) the aggregate principal amount of all Revolving
Credit Loans made by such Lender then outstanding and (b) such Lender’s Revolving Credit Percentage of the L/C Obligations
then outstanding.
“S&P”:
Standard & Poor’s Ratings Services.
“Sanctioned Country”
shall mean, at any time, a country, region or territory that is subject to comprehensive Sanctions (as of the SecondEighth
Amendment Effective Date, Cuba, Iran, North Korea, Syria, andAfghanistan,
the Crimea region of Ukraine, the so-called Luhansk People’s Republic,
the so-called Donetsk People’s Republic and the non-government controlled Zaporizhzhia and Kherson regions of Ukraine).
“Sanctioned Person”
shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign
Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, the United Kingdom, or by the United Nations Security
Council, the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any
Person owned or controlled by any such Person.
“Sanctions”
shall mean economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S.
government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department
of State, or (b) the United Nations Security Council, the European Union, any European Union member state or other relevant sanctions
authority or His Majesty’s Treasury of the United Kingdom.
“SEC”: the
Securities and Exchange Commission (or successors thereto or an analogous Governmental Authority).
“Second Amendment”
shall mean that certain Second Amendment to Credit Agreement, dated as of November 20, 2017, by and among the Borrower, the Lenders
party thereto, the Administrative Agent and the Collateral Agent.
“Second Amendment Effective
Date” has the meaning set forth in the Second Amendment.”
“Second Lien Intercreditor
Agreement”: as defined in the definition of Permitted Second Priority Refinancing Debt.
“Secured Parties”:
as defined in the Guarantee and Collateral Agreement.
“Security Documents”:
the collective reference to the Guarantee and Collateral Agreement, the Reaffirmation Agreement and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any Property of any Person to secure the obligations and liabilities of any Loan
Party under any Loan Document.
“Seller”:
General Mills, Inc., a Delaware corporation.
“Senior Note Indenture”:
the Base Indenture, dated as of June 4, 2013, entered into by the Borrower and The Bank of New York Mellon Trust Company, N.A., as
trustee, and the First Supplemental Indenture, dated as of June 4, 2013, entered into by the Borrower, the “Guarantors”
under and as defined therein and The Bank of New York Mellon Trust Company N.A., as trustee, in each case in connection with the issuance
of the Senior Notes, together with all instruments and other agreements entered into by the Borrower or such Subsidiaries in connection
therewith, as the same may be amended, supplemented or otherwise modified from time to time in accordance with Section 6.9.
“Senior Notes”:
the senior notes of the Borrower issued from time to time pursuant to the Senior Note Indenture.
“Seventh Amendment”:
that certain Seventh Amendment to Credit Agreement, dated as of September 22, 2023, by and among the Borrower, the Subsidiary Guarantors,
the Lenders party thereto, the Administrative Agent and the Collateral Agent.
“Seventh Amendment
Effective Date”: as defined in the Seventh Amendment.
“Sixth Amendment”:
that certain Sixth Amendment to Credit Agreement, dated as of June 6, 2023, by and among the Borrower and the Administrative Agent.
“Sixth Amendment Effective
Date”: as defined in the Sixth Amendment.
“SOFR”: a
rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator”:
the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Borrowing”:
as to any Borrowing, the SOFR Loans comprising such Borrowing.
“SOFR Loan”:
a Loan that bears interest at a rate based on Term SOFR, other than pursuant to clause (c) of the definition of “Base Rate”.
“SOFR Tranche”:
to the collective reference to SOFR Loans the then current Interest Periods with respect to all of which being on the same date and end
on the same later date (whether or not such SOFR Loans shall originally have been made on the same day).
“Solvent”:
when used with respect to any Person, that, as of any date of determination, (a) the amount of the “present fair saleable value”
of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”,
as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of
the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than
the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such
Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person
will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim”,
and (ii) “claim” means any (A) right to payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (B) right to
an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
“Specified Acquisition
Agreement Representations” the representations and warranties made by or on behalf of the Seller and the Acquired Business in
the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that B&GNA or the Borrower (or any
of their applicable Affiliates) has the right to terminate its (or their) obligations (or decline to consummate the Acquisition) under
the Acquisition Agreement as a result of the breach of such representations in and warranties in the Acquisition Agreement.
“Specified Cash Management
Agreement”: any Cash Management Agreement that is entered into by the Borrower or any of its Subsidiaries and any Cash Management
Bank.
“Specified Change of
Control”: the occurrence of (a) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets
of the Borrower and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of
the Exchange Act) other than a Principal or a Related Party of a Principal, (b) the adoption of a plan relating to the liquidation
or dissolution of the Borrower or (c) the consummation of any transaction (including, without limitation, any merger or consolidation),
the result of which is that any “person” (as defined above), other than the Principals and their Related Parties, becomes
the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more
than 50% of the voting Capital Stock of the Borrower, measured by voting power rather than number of shares.
“Specified Hedge Agreement”:
any Hedge Agreement entered into by the Borrower or any of its Subsidiaries and any Qualified Counterparty.
“Specified Representations”:
the representations and warranties set forth in Sections 3.3(a), 3.4 (as it relates to entering into and performance of the definitive
documentation for the Incremental Term Loans and/or Incremental Revolving Loans except that any such representation of an acquired person,
if applicable, is or will be true as of the closing date of the Permitted Acquisition), 3.5 (as it relates to no conflicts between the
definitive documentation for the Incremental Term Loans and/or Incremental Revolving Loans and the organizational documents of the Borrower
and its Subsidiaries), 3.11, 3.14, 3.19 (it being understood that such representation shall be limited to the extent any Collateral (including
the creation or perfection of any security interest therein) is not or cannot be provided on the applicable closing date (other than the
pledge and perfection of Collateral with respect to which a security interest may be perfected by means of (x) delivery of a Uniform
Commercial Code financing statement in proper form for filing, (y) delivery of certificated securities, if any or (z) delivery
of intellectual property security agreements in proper form for filing or recording; provided that such security interest(s) will
be required to be perfected after the applicable closing date pursuant to arrangements to be mutually agreed by the Administrative Agent
and the Borrower), 3.20 and the use of proceeds of the Loans not violating FCPA and OFAC and compliance in all material respects with
the Patriot Act as set forth in Section 3.21.
“Specified Transaction”:
(a) any Asset Sale of all or substantially all the assets of or all the Capital Stock of any of the Borrower’s Subsidiaries
or of any business unit, line of business or division of the Borrower or any of its Subsidiaries, (b) any Permitted Acquisition or
Investment that results in a Person becoming a Subsidiary of the Borrower or (c) any proposed incurrence of Indebtedness or making
of a Restricted Payment in respect of which compliance with the financial covenants set forth in Section 6.1 is by the terms of this
Agreement required to be calculated on a Pro Forma Basis.
“Subsidiary”:
as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership 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 corporation, partnership or other entity are at
the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Subsidiary Guarantor”:
each Subsidiary of the Borrower other than any Foreign Subsidiary.
“Swap Obligation”:
with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap”
within the meaning of section 1a(47) of the Commodity Exchange Act.
“Tax”: any
and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings (including any interest, fines, penalties
and additions related thereto) imposed by any Governmental Authority.
“Term Loan Commitments”:
collectively, the Tranche A Term Loan Commitments, the Tranche B Term Loan Commitments, the Tranche B-2 Term Loan Commitments, the Tranche
B-3 Term Loan Commitments, the Tranche B-4 Term Loan Commitments (including any Fourth Amendment Incremental Term Loan Commitments),
the Tranche B-5 Term Loan Commitments and, unless the context shall otherwise require, the Incremental Term Commitments and
any Commitments in respect of Extended Term Loans.
“Term Loan Lenders”:
collectively, the Tranche A Term Loan Lenders, the Tranche B Term Loan Lenders, the Tranche B-2 Term Loan Lenders, the Tranche B-3 Term
Loan Lenders, the Tranche B-4 Term Loan Lenders (including any Fourth Amendment Incremental Term Loan Lenders),
the Tranche B-5 Term Loan Lenders and, unless the context shall otherwise require, theany
Incremental Term Loan Lenders.
“Term
Loan Repayment Dates”: collectively, the Tranche A Term Loan Repayment Dates, the Tranche B-2 Term Loan Repayment
Dates, the Tranche B-3 Term Loan Repayment Dates, the Tranche B-4 Term Loan Repayment Dates and the Incremental Term Loan Repayment Dates.
“Term Loans”:
collectively, the Tranche A Term Loans, the Tranche B Term Loans, the Tranche B-2 Term Loans, the Tranche B-3 Term Loans, the Tranche
B-4 Term Loans (including the Fourth Amendment Incremental Term Loans),
the Tranche B-5 Term Loans and, unless the context shall otherwise require, the term “Term Loans” shall include
any Extended Term Loans, any Incremental Term Loans and any Other Term Loans.
“Term SOFR”:
(a) for
any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on
the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business
Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that
if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable
tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate
has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the
first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term
SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government
Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for
any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day,
the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to
such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time)
on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term
SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will
be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities
Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first
preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such
Base Rate Term SOFR Determination Day;
provided,
further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above)
shall ever be less than 0.00%, then Term SOFR shall be deemed to be 0.00%.
“Term SOFR Administrator”:
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 Reference
Rate”: the forward-looking term rate based on SOFR.
“Test Period”:
a period of four consecutive Fiscal Quarters.
“Third Amendment”:
that certain Third Amendment to Credit Agreement, dated as of October 10, 2019, by and among the Borrower, the Lenders party thereto,
the Administrative Agent and the Collateral Agent.
“Third Amendment Effective
Date”: as defined in the Third Amendment.
“Total Revolving Credit
Commitments”: at any time, the aggregate amount of the Revolving Credit Commitments of the Lenders then in effect.
“Total Revolving Extensions
of Credit”: at any time, the aggregate amount of the Revolving Extensions of Credit of the Lenders outstanding at such time.
“Tranche A Term Loan”:
as defined in Section 2.1(a).
“Tranche A Term Loan
Commitment”: as to any Tranche A Term Loan Lender, the obligation of such Lender, if any, to make a Tranche A Term Loan to the
Borrower hereunder in a principal amount not to exceed the amount set forth under the heading “Tranche A Term Loan Commitment”
opposite such Lender’s name on Schedule 1 to the lender addendum delivered by such Lender on the Closing Date, or, as the case may
be, in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The aggregate amount of the Tranche A Term Loan Commitments as of the Closing Date is $300,000,000.
“Tranche A Term Loan
Facility”: as defined in the definition of “Facility” in this Section 1.1.
“Tranche A Term Loan
Lender”: each Lender that has a Tranche A Term Loan Commitment or is the holder of a Tranche A Term Loan.
“Tranche A Term Loan
Maturity Date”: the earlier of (a) June 5, 2019 and (b) the date on which all Tranche A Term Loans shall become
due and payable in full hereunder, whether by acceleration or otherwise.
“Tranche A Term Loan
Percentage”: as to any Tranche A Term Loan Lender at any time, the percentage which such Lender’s undrawn Tranche A Term
Loan Commitment then constitutes of the aggregate undrawn Tranche A Term Loan Commitments or, at any time after the Closing Date, the
percentage which the aggregate principal amount of such Lender’s Tranche A Term Loans then outstanding constitutes of the aggregate
principal amount of the Tranche A Term Loans then outstanding.
“Tranche
A Term Loan Repayment Date”: as defined in Section 2.3(a).
“Tranche B Term Loan”:
as defined in Section 2.1(b).
“Tranche B Term Loan
Commitment”: as to any Tranche B Term Loan Lender, the obligation of such Lender, if any, to make a Tranche B Term Loan to the
Borrower hereunder in a principal amount not to exceed the amount set forth on Schedule I to the Amendment Agreement or, as the case may
be, in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The aggregate amount of the Tranche B Term Loan Commitments as of the Restatement Funding Date was $750,000,000.
“Tranche B Term Loan
Facility”: as defined in the definition of “Facility” in this Section 1.1.
“Tranche B Term Loan
Lender”: each Lender that has a Tranche B Term Loan Commitment or is the holder of a Tranche B Term Loan.
“Tranche B Term Loan
Percentage”: as to any Tranche B Term Loan Lender at any time, the percentage which such Lender’s undrawn Tranche B Term
Loan Commitment then constitutes of the aggregate undrawn Tranche B Term Loan Commitments or, at any time after the Restatement Funding
Date, the percentage which the aggregate principal amount of such Lender’s Tranche B Term Loans then outstanding constitutes of
the aggregate principal amount of the Tranche B Term Loans then outstanding.
“Tranche B-2 Term Loan”:
the loans in Dollars made to the Borrower on the First Amendment Effective Date in an aggregate principal amount of $640,109,890.11.
“Tranche B-2 Term Loan
Commitment”: the commitments of the Tranche B-2 Term Loan Lenders pursuant to the First Amendment or, as the case may be, in
the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant
to the terms hereof. The aggregate amount of the Tranche B-2 Term Loan Commitments as of the First Amendment Effective Date was $640,109,890.11.
“Tranche B-2 Term Loan
Facility”: as defined in the definition of “Facility” in this Section 1.1.
“Tranche B-2 Term Loan
Lender”: each Lender that has a Tranche B Term Loan Commitment or is the holder of a Tranche B Term Loan.
“Tranche B-2 Term Loan
Percentage”: as to any Tranche B-2 Term Loan Lender at any time, the percentage which such Lender’s undrawn Tranche B-2
Term Loan Commitment then constitutes of the aggregate undrawn Tranche B-2 Term Loan Commitments or, at any time after the First Amendment
Effective Date, the percentage which the aggregate principal amount of such Lender’s Tranche B-2 Term Loans then outstanding constitutes
of the aggregate principal amount of the Tranche B-2 Term Loans then outstanding.
“Tranche B-3 Term Loan”:
the loans in Dollars made to the Borrower on the Second Amendment Effective Date in an aggregate principal amount of $650,109,890.11.
“Tranche B-3 Term Loan
Commitment”: the commitments of the Tranche B-3 Term Loan Lenders pursuant to the Second Amendment or, as the case may be, in
the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant
to the terms hereof. The aggregate amount of the Tranche B-3 Term Loan Commitments as of the Second Amendment Effective Date iswas
$650,109,890.11.
“Tranche B-3 Term Loan
Facility”: as defined in the definition of “Facility” in this Section 1.1.
“Tranche B-3 Term Loan
Lender”: each Lender that has a Tranche B Term Loan Commitment or is the holder of a Tranche B Term Loan.
“Tranche B-3 Term Loan
Maturity Date”: the earlier of (a) November 2, 2022, and (b) the date on which all Tranche B Term Loans shall
become due and payable in full hereunder, whether by acceleration or otherwise (but excluding, for the avoidance of doubt, any voluntary
prepayment under Section 2.9).
“Tranche B-3 Term Loan
Percentage”: as to any Tranche B-3 Term Loan Lender at any time, the percentage which such Lender’s undrawn Tranche B-3
Term Loan Commitment then constitutes of the aggregate undrawn Tranche B-3 Term Loan Commitments or, at any time after the Second Amendment
Effective Date, the percentage which the aggregate principal amount of such Lender’s Tranche B-3 Term Loans then outstanding constitutes
of the aggregate principal amount of the Tranche B-3 Term Loans then outstanding.
“Tranche B-4 Term Loan”:
(i) the loans in Dollars made to the Borrower on the Third Amendment Effective Date in an aggregate principal amount of $450,000,000.00,
and (ii) the loans in Dollars made to the Borrower on the Fourth Amendment Effective Date in an aggregate principal amount of $300,000,000.00.
Upon the occurrence of the Fourth Amendment Effective Date, the Fourth Amendment Incremental Term Loans shall
automatically and without further action by any Person constitutebecame
additional Tranche B-4 Term Loans (and shall havewith
the same terms as the Tranche B-4 Term Loans after giving effect to the Fourth Amendment) and shall
be) and are part of the same class of Loans
as the Tranche B-4 Term Loans, in each case for all purposes of this Agreement and the other Loan Documents. As of the Fourth Amendment
Effective Date, the aggregate principal amount of Tranche B-4 Term Loans outstanding iswas
$671,625,000.00.
“Tranche B-4 Term Loan
Commitment”: the commitments of the Tranche B-4 Term Loan Lenders pursuant to the Third Amendment, the commitments of the Fourth
Amendment Incremental Term Loan Lenders pursuant to the Fourth Amendment or, as the case may be, in the Assignment and Assumption pursuant
to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount
of the Tranche B-4 Term Loan Commitments as of the Third Amendment Effective Date iswas
$450,000,00.00. The aggregate amount of the Tranche B-4 Term Loan Commitments as of the Fourth Amendment Effective Date iswas
$300,000,000.00. Upon the occurrence of the Fourth Amendment Effective Date, the Fourth Amendment Incremental Term Loan Commitments shall
automatically and without further action by any Person constitute additional Tranche B-4 Term Loan Commitments (and shall have the same
terms as the Tranche B-4 Term Loan Commitments after giving effect to the Fourth Amendment) and shall be part of the same class of Commitments
as the Tranche B-4 Term Loan Commitments, in each case for all purposes of this Agreement and the other Loan Documents.
“Tranche B-4 Term Loan
Facility”: as defined in the definition of “Facility” in this Section 1.1.
“Tranche B-4 Term Loan
Lender”: each Lender that has a Tranche B-4 Term Loan Commitment or is the holder of a Tranche B-4 Term Loan.
“Tranche B-4 Term Loan
Maturity Date”: the earlier of (a) October 10, 2026, and (b) the date on which all Tranche B-4 Term Loans shall
become due and payable in full hereunder, whether by acceleration or otherwise (but excluding, for the avoidance of doubt, any voluntary
prepayment under Section 2.9).
“Tranche B-4 Term Loan
Percentage”: as to any Tranche B-4 Term Loan Lender at any time, the percentage which such Lender’s undrawn Tranche B-4
Term Loan Commitment then constitutes of the aggregate undrawn Tranche B-4 Term Loan Commitments or, at any time after the Third Amendment
Effective Date, the percentage which the aggregate principal amount of such Lender’s Tranche B-4 Term Loans then outstanding constitutes
of the aggregate principal amount of the Tranche B-4 Term Loans then outstanding.
“Tranche
B-5 Term Loan”: the loans in Dollars made to the Borrower on the Eighth Amendment Effective Date in an aggregate principal amount
of $450,000,000.00.
“Tranche
B-5 Term Loan Commitment”: the commitments of the Tranche B-5 Term Loan Lenders pursuant to the Eighth Amendment or, as the case
may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to
time pursuant to the terms hereof. The aggregate amount of the Tranche B-5 Term Loan Commitments as of the Eighth Amendment Effective
Date is $450,000,00.00.
“Tranche
B-5 Term Loan Facility”: as defined in the definition of “Facility” in this Section 1.1.
“Tranche
B-5 Term Loan Lender”: each Lender that has a Tranche B-5 Term Loan Commitment or is the holder of a Tranche B-5 Term Loan.
“Tranche
B-5 Term Loan Maturity Date”: the earlier of (a) October 10, 2029, (b) the date that is ninety-one (91) days prior
to the earliest then applicable maturity date of the Senior Notes, the New Senior Notes and Borrower’s existing secured notes due
2028 and (c) the date on which all Tranche B-4 Term Loans shall become due and payable in full hereunder, whether by acceleration
or otherwise (but excluding, for the avoidance of doubt, any voluntary prepayment under Section 2.9).
“Tranche
B-5 Term Loan Percentage”: as to any Tranche B-5 Term Loan Lender at any time, the percentage which such Lender’s undrawn
Tranche B-5 Term Loan Commitment then constitutes of the aggregate undrawn Tranche B-5 Term Loan Commitments or, at any time after the
Eighth Amendment Effective Date, the percentage which the aggregate principal amount of such Lender’s Tranche B-5 Term Loans then
outstanding constitutes of the aggregate principal amount of the Tranche B-5 Term Loans then outstanding.
“Tranche B-4-5
Term Loan Repayment Date”: as defined in Section 2.3(a).
“Transactions”:
collectively, (a) the consummation of the Acquisition, (b) the execution, delivery and performance by the Loan Parties of the
Loan Documents to which they are a party, (c) the borrowings on the Restatement Funding Date and the use of proceeds thereof, (d) the
granting of Liens pursuant to the Security Documents and (e) any other transactions related to or entered into in connection with
any of the foregoing.
“Transferee”:
as defined in Section 9.14.
“Transformative Acquisition”
any acquisition by the Borrower or any Subsidiary that is either (a) not permitted by the terms of the Loan Documents immediately
prior to the consummation of such acquisition or (b) if permitted by the terms of the Loan Documents immediately prior to the consummation
of such acquisition, would not provide the Borrower and its Subsidiaries with adequate flexibility under the Loan Documents for the continuation
and/or expansion of their combined operations following such consummation, as determined by the Borrower acting in good faith.
“Type”: as
to any Loan, its nature as a Base Rate Loan or a SOFR Loan.
“UK Financial Institution”
any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form 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”
the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark
Replacement” the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
“USA PATRIOT Act”:
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III
of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended.
“U.S. Government Securities
Business Day”: 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.
“Weighted Average Life
to Maturity”: when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the
products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such
Indebtedness.
“Wholly Owned Subsidiary”:
as to any Person, any other Person all of the Capital Stock of which (other than directors’ qualifying shares required by law) is
owned by such Person directly and/or through other Wholly Owned Subsidiaries.
“Wholly Owned Subsidiary
Guarantor”: any Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower.
“Withdrawal Liability”:
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 1 of Subtitle E of Title IV of ERISA.
“Write-Down and Conversion
Powers” (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.
“Yield Differential”:
as defined in Section 2.32(b).
1.2 Other
Definitional Provisions.
(a) Unless
otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents
or any certificate or other document made or delivered pursuant hereto or thereto.
(b) As
used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, accounting
terms relating to the Borrower and its Subsidiaries not defined in Section 1.1 and accounting terms partly defined in Section 1.1,
to the extent not defined, shall have the respective meanings given to them under GAAP.
(c) The
words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references
are to this Agreement unless otherwise specified.
(d) The
meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(e) Notwithstanding
any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations
of amounts and ratios referred to in Section 6.1 shall be made, without giving effect to (i) any election under Statement of
Financial Accounting Standards 159 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness
or other liabilities of any Loan Party or any Subsidiary of any Loan Party at “fair value” or (ii) any change to lease
accounting rules from those in effect pursuant to Financial Accounting Standards Board Accounting Standards Codification 840 (Leases)
and other related lease accounting guidance as in effect on the Closing Date.
1.3 Pro
Forma Basis. Notwithstanding anything to the contrary contained herein, financial ratios and
tests (including the Consolidated Leverage Ratio, the Consolidated Senior Secured Leverage Ratio and the Consolidated Interest Coverage
Ratio) pursuant to this Agreement shall be calculated in the manner prescribed by this Section 1.3.
(a) In
the event that the Borrower or any of its Subsidiaries incurs, assumes, guarantees, redeems, repays, repurchases, retires or extinguishes
any Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility unless
such Indebtedness has been permanently repaid and has not been replaced) subsequent to the end of the Test Period
for which such financial ratio or test is being calculated but prior to or simultaneously with the event for which such calculation is
being made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption,
repayment, repurchase, retirement or extinguishment of Indebtedness, as if the same had occurred on the last day of the applicable Test
Period (except in the case of the Consolidated Interest Coverage Ratio (or similar ratio), as if the same had occurred on the first day
of the applicable Test Period).
(b) For
purposes of calculating any financial ratio or test, Specified Transactions that have been made by the Borrower or any of its Subsidiaries
during the applicable Test Period or subsequent to such Test Period and prior to or simultaneously with the event for which such calculation
is being made shall be given pro forma effect assuming that all such Specified Transactions (and the change in Consolidated EBITDA resulting
therefrom) had occurred on the first day of the applicable Test Period. If since the beginning of any such Test Period any Person that
subsequently became a Subsidiary of the Borrower or was merged, amalgamated or consolidated with or into the Borrower or any of its Subsidiaries
since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this
Section 1.3, then any applicable financial ratio or test shall be calculated giving pro forma effect thereto for such period as if
such Specified Transaction occurred at the beginning of the applicable Test Period.
(c) Whenever
pro forma effect is to be given to a Specified Transaction or the Transactions, the pro forma calculations shall be made in good faith
by a Responsible Officer (including the “run-rate” cost savings and synergies resulting from such Specified Transactions that
have been or are expected to be realized (“run-rate” means the full recurring benefit for a period that is associated with
any action taken (including any savings expected to result from the elimination of a public target’s compliance costs with public
company requirements), net of the amount of actual benefits realized during such period from such actions; provided that with respect
to the Transactions or to any Specified Transaction, such cost savings or synergies for any period shall not exceed 10% of Consolidated
EBITDA (after giving effect to such Transaction or Specified Transaction, but prior to giving effect to such adjustments in respect of
such cost savings or synergies) for such period); provided that (i) such amounts are projected by the Borrower in good faith
to result from actions taken within 12 months after the end of such Test Period in which such Specified Transaction occurred (or, in the
case of the Transactions, the 12 months after the Closing Date) and (ii) no amounts shall be added pursuant to this clause (c) to
the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA for such Test Period.
(d) 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 the event for which the calculation of the Consolidated Interest Coverage Ratio is made had been
the applicable rate for the entire period (taking into account any interest hedging arrangements applicable to such Indebtedness). Interest
on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, an interbank offered
rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate
chosen as the Borrower may designate.
(e) Notwithstanding
the foregoing, when calculating the Consolidated Interest Coverage Ratio and Consolidated Leverage Ratio for the purposes of Section 6.1,
the events described in Sections 1.3(b), (c) and (d) above that occurred subsequent to the end of the applicable Test Period
shall not be given pro forma effect.
1.4 Divisions.
For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event
under a different jurisdiction’s laws): (a) any reference to a merger, transfer, consolidation, amalgamation, consolidation,
assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company,
or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were
a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable,
to, of or with a separate Person and (b) any division of a limited liability company shall constitute a separate Person hereunder
(and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such
a Person or entity).
1.5 Rates.
The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (a) the
continuation of, administration of, submission of, calculation of or any other matter related to Base Rate, the Term SOFR Reference Rate
or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement
rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor
or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or
have the same volume or liquidity as, Base Rate, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance
or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its affiliates
or other related entities may engage in transactions that affect the calculation of Base Rate, the Term SOFR Reference Rate, Term SOFR,
any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case,
in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion
to ascertain Base Rate, the Term SOFR Reference Rate, Term SOFR or any other Benchmark, or any component definition thereof or rates referred
to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender
or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages,
costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any
such rate (or component thereof) provided by any such information source or service.
Section 2. AMOUNT
AND TERMS OF COMMITMENTS; LETTERS OF CREDIT
2.1 Term
Loan Commitments. (i) Subject to the terms and conditions in the Existing Credit Agreement
and relying upon the representations and warranties therein set forth, each Tranche A Term Loan Lender made a tranche A term loan (each,
a “Tranche A Term Loan”) on the Closing Date to the Borrower;
(b) Subject
to the terms and conditions herein and relying upon the representations and warranties herein set forth, each Tranche B Term Loan Lender,
severally and not jointly, made, on the Restatement Funding Date, a tranche B term loan (each, a “Tranche B Term Loan”)
to the Borrower in an amount equal to such Lender’s Tranche B Term Loan Commitment;
(c) Pursuant
to the terms of the First Amendment, the Tranche B-2 Term Loan Lenders made Tranche B-2 Term Loans in Dollars (whether by agreeing to
exchange existing Tranche B Term Loans or by committing to make new term loans) to the Borrower on the First Amendment Effective Date;
(d) Pursuant
to the terms of the Second Amendment, the Tranche B-3 Term Loan Lenders made Tranche B-3 Term Loans in Dollars (whether by agreeing to
exchange existing Tranche B-2 Term Loans or by committing to make new loans) to the Borrower on the Second Amendment Effective Date;
(e) Pursuant
to the terms of the Third Amendment, the Tranche B-4 Term Loan Lenders, severally and not jointly, have agreed to make Tranche B-4 Term
Loans in Dollars to the Borrower on the Third Amendment Effective Date;
(f) Pursuant
to the terms of the Fourth Amendment, the Fourth Amendment Incremental Term Loan Lenders, severally and not jointly, have agreed to make
Fourth Amendment Incremental Term Loans in Dollars to the Borrower on the Fourth Amendment Effective Date in a principal amount not to
exceed its Fourth Amendment Incremental Term Loan Commitment; and
(g) Pursuant
to the terms of the Eighth Amendment, the Tranche B-5 Term Loan Lenders, severally and not jointly, have agreed to make Tranche B-5 Term
Loans in Dollars to the Borrower on the Eighth Amendment Effective Date; and
(gh) Subject
to the terms and conditions and relying upon the representations and warranties set forth in the applicable Incremental Assumption Agreement,
each Lender having an Incremental Term Loan Commitment, severally and not jointly, hereby agrees to make Incremental Term Loans to the
Borrower, in an aggregate principal amount not to exceed its Incremental Term Loan Commitment.
The Borrower has made a borrowing under the total
Tranche A Term Loan Commitment on the Closing Date. The Borrower has made a borrowing under the Tranche B Term Loan Commitment on the
Restatement Funding Date. The Borrower has made a borrowing under (i) the Tranche B-2 Term Loan Commitment on the First Amendment
Effective Date and (ii) the Tranche B-3 Term Loan Commitment on the Second Amendment Effective Date. The Borrower has made a borrowing
under the Tranche B-4 Term Loan Commitment on the Third Amendment Effective Date. The Borrower has made a borrowing under the Fourth Amendment
Incremental Term Loan Commitment on the Fourth Amendment Effective Date. The
Borrower has made a borrowing under the Tranche B-5 Term Loan Commitment on the Eighth Amendment Effective Date. Any amount
borrowed under this Section 2.1 and subsequently repaid or prepaid may not be reborrowed. All (i) Tranche B Term Loans outstanding
on the First Amendment Effective Date and (ii) Tranche B-2 Term Loans outstanding on the Second Amendment Effective Date were repaid
in full. All (i) Tranche A Term Loans and,
(ii) Tranche B-3 Term Loans and (iii) Tranche B-4 Term Loans,
were, in each case, repaid in full. Subject to Sections
2.9 and 2.10, all amounts owed hereunder with respect to the Tranche B-4-5
Term Loans (including the Fourth Amendment Incremental Term Loans) and the Incremental
Term Loans shall be paid in full no later than the Tranche B-4-5
Term Loan Maturity Date or the applicable Incremental Term Loan Maturity Date, respectively. Each Lender’s Tranche A Term Loan Commitment
terminated immediately and without further action on the Closing Date. Each Lender’s Tranche B Term Loan Commitment terminated immediately
and without further action on the Restatement Funding Date. Each Lender’s Tranche B-2 Term Loan Commitment terminated immediately
and without further action on the First Amendment Effective Date after giving effect to such Lender’s Tranche B-2 Term Loan Commitment
on such date. Each Lender’s Tranche B-3 Term Loan Commitment terminated immediately and without further action on the Second Amendment
Effective Date after giving effect to such Lender’s Tranche B-3 Term Loan Commitment on such date. Each Lender’s Tranche B-4
Term Loan Commitment under the Third Amendment terminated immediately and without further action on the Third Amendment Effective Date
upon funding of the Tranche B-4 Term Loans. Each Lender’s Fourth Amendment Incremental Term Loan Commitment shall terminate immediately
and without further action on the Fourth Amendment Effective Date upon funding of the Fourth Amendment Incremental Term Loans. TheEach
Lender’s Tranche B-5 Term Loan Commitment under the Eighth Amendment will terminate immediately and without further action on the
Eighth Amendment Effective Date upon funding of the Tranche B-5 Term Loans. Any Incremental Term Loan Commitments shall terminate
as provided in the related Incremental Assumption Agreement. The Term Loans may from time to time be SOFR Loans or Base Rate Loans, as
determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.11.
2.2 Procedure
for Term Loan Borrowings. The Borrower shall deliver to the Administrative Agent an irrevocable
notice (which notice must be received by the Administrative Agent prior to 10:00 A.M., New York City time, one Business Day prior
to the anticipated closing date set forth inBorrowing
Date of the applicable Incremental Assumption AgreementTerm
Loans) requesting that the applicable Term Loan Lenders make the applicable Term Loans on the date
set forth in the applicable Incremental Assumption Agreementspecified
Borrowing Date and specifying the amount to be borrowed. Upon receipt of such notice of borrowing the Administrative Agent
shall promptly notify each applicable Term Loan Lender thereof. Not later than 12:00 noon, New York City time, on the Fourth
Amendment Effective Date (or on such other date set forth in the applicable Incremental Assumption Agreement)proposed
Borrowing Date, each applicable Term Loan Lender shall make available to the Administrative Agent at the Funding Office an
amount in immediately available funds equal to the Term Loan or Term Loans to be made by such Lender on the
Fourth Amendment Effective Date (or on such other date set forth in the applicable Incremental Assumption Agreement)such
Borrowing Date. The Administrative Agent shall make available to the Borrower the aggregate of the amounts made available to
the Administrative Agent by the applicable Term Loan Lenders, in like funds as received by the Administrative Agent.
2.3 Repayment
of Term Loans. (ii) The Borrower shall pay to the Administrative Agent, for the account
of the Tranche -4B-5
Term Loan Lenders, on the last Business Day of each March, June, September and December, commencing on the last day of the first
full Fiscal Quarter following theThird
Eighth Amendment Effective Date (each such date, a “Tranche
-4B-5
Term Loan Repayment Date”), an amount equal to 0.25%
of the original principal amount of such Tranche -4B-5
Term Loans made on theThird Eighth
Amendment Effective Date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the
date of such payment; provided that, in the event any new Tranche -4B-5
Term Loans are made, such new Tranche -4B-5
Term Loans shall be repaid on each Tranche -4B-5
Term Loan Repayment Date occurring on or after the applicable Tranche -4B-5
Increased Amount Date in an amount equal to (i) the aggregate principal amount of new Tranche -4B-5
Term Loans of the applicable series of new Tranche -4B-5
Term Loans, times (ii) the ratio (expressed as a percentage) of (A) the amount of all other Tranche -4B-5
Term Loans being repaid on such Tranche -4B-5
Term Loan Repayment Date and (B) the total aggregate principal amount of all other Tranche -4B-5
Term Loans outstanding on such Tranche -4B-5
Increased Amount Date.
Notwithstanding the foregoing,
(x) such Tranche B-4-5
Term Loan quarterly payments shall be reduced in connection with any voluntary or mandatory prepayments of the Tranche B-4-5
Term Loans in accordance with Section 2.9 or 2.10, as applicable; and (y) the Tranche B-4-5
Term Loans, together with all other amounts owed hereunder with respect thereto, shall in any event be paid in full no later than the
Tranche B-4-5
Term Loan Maturity Date.
It
is hereby acknowledged and agreed that, as of the Fourth Amendment Effective Date, all amortization payments required under this Section 2.3
prior to the Tranche B-4 Term Loan Maturity Date have been paid in full, and no quarterly principal payments of Tranche B-4 Term Loans
(including, for the avoidance of doubt, Fourth Amendment Incremental Term Loans) pursuant to this Section 2.3 shall be required after
the Fourth Amendment Effective Date.
(b) The
Borrower shall pay to the Administrative Agent, for the account of the Incremental Term Lenders, on each Incremental Term Loan Repayment
Date, a principal amount of the Other Term Loans (as adjusted from time to time pursuant to Sections 2.9 and 2.10) equal
to the amount set forth for such date in the applicable Incremental Assumption Agreement, together in each case with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of such payment.
(c) To
the extent not previously paid, all Term Loans shall be due and payable on Tranche B-4-5
Term Loan Maturity Date, as applicable, and all Other Term Loans shall be due and payable on the applicable Incremental Term Loan Maturity
Date, in each case, together with accrued and unpaid interest on the principal amount to be paid to but excluding the date of payment.
(d) In
the event that all or any portion of the Tranche B-4-5
Term Loans then outstanding are prepaid in connection with a Repricing Transaction prior to the six-month anniversary of the FourthEighth
Amendment Effective Date, such prepayment shall be accompanied by a repayment fee equal to 1.00% of the aggregate principal amount of
the Tranche B-4-5
Term Loans so prepaid.
2.4 Revolving
Credit Commitments. (iii) Subject to the terms and conditions hereof, each Revolving Credit
Lender severally agrees to make Revolving Credit Loans to the Borrower from time to time during the Revolving Credit Commitment Period
in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Credit Percentage of the
L/C Obligations then outstanding, does not exceed the amount of such Lender’s Revolving Credit Commitment; provided that
the sum of (x) the aggregate principal amount of Revolving Credit Loans plus (y) the aggregate amount of L/C Obligations, in
each case outstanding on and as of the Closing Date, shall not exceed $50,000,000. During the Revolving Credit Commitment Period the Borrower
may use the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof. The Revolving Credit Loans may from time to time be SOFR Loans or Base Rate Loans,
as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.5 and 2.11, provided that
no Revolving Credit Loan shall be made as a SOFR Loan after the day that is one month prior to the Revolving Credit Termination Date.
(b) Subject
to the terms and conditions and relying upon the representations and warranties set forth in the applicable Incremental Assumption Agreement,
each Lender having an Incremental Revolving Commitment, severally and not jointly, hereby agrees to make Incremental Revolving Loans to
the Borrower, in an aggregate principal amount not to exceed its Incremental Revolving Commitment. The Borrower shall repay all outstanding
Revolving Credit Loans on the Revolving Credit Termination Date.
2.5 Procedure
for Borrowing Revolving Credit Loans. The Borrower may borrow Revolving Credit Loans under the
Revolving Credit Commitments during the Revolving Credit Commitment Period on any Business Day, provided that the Borrower shall
give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 12:00 noon, New York
City time, (i) three Business Days prior to the requested Borrowing Date, in the case of SOFR Loans, or (ii) one Business Day
prior to the requested Borrowing Date, in the case of Base Rate Loans), specifying (A) the amount and Type of Revolving Credit Loans
to be borrowed, (B) the requested Borrowing Date and (C) in the case of SOFR Loans, the length of the initial Interest Period
therefor. If no election as to the Type of Loans is specified in any such notice, then the requested Loan shall be a Base Rate Loan. If
no Interest Period with respect to any SOFR Loan is specified in any such notice, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. Each borrowing under the Revolving Credit Commitments shall be in an amount equal to (x) in
the case of Base Rate Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate Available Revolving Credit Commitments
are less than $1,000,000, such lesser amount) and (y) in the case of SOFR Loans, $1,000,000 or a whole multiple of $1,000,000 in
excess thereof. Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each Lender thereof.
Each Lender will make the amount of its pro rata share of each borrowing of Revolving Credit Loans available to the Administrative
Agent for the account of the Borrower at the Funding Office prior to 12:00 noon, New York City time, on the Borrowing Date requested by
the Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower by
the Administrative Agent in like funds as received by the Administrative Agent.
2.6 Repayment
of Loans; Evidence of Debt. (iv) The Borrower hereby unconditionally promises to pay
to the Administrative Agent for the account of the appropriate Lender (i) the then unpaid principal amount of each Revolving Credit
Loan of such Lender on the Revolving Credit Termination Date (or such earlier date on which such Loans become due and payable pursuant
to Section 7), (ii) the then unpaid principal amount of each Tranche A Term Loan on the Tranche A Term Loan Maturity Date, (iii) the
then unpaid principal amount of each Tranche B-3 Term Loan on the Tranche B-3 Term Loan Maturity Date, (iv) the then unpaid principal
amount of each Tranche B-4 Term Loan on the Tranche B-4 Term Loan Maturity Dat ande,
(v) the then unpaid principal amount of each Tranche B-5 Term Loan
on the Tranche B-5 Term Loan Maturity Date and (vi) the then unpaid principal amount of each Incremental Term Loan on
the applicable Incremental Term Loan Maturity Date. All Tranche A Term Loans were repaid in full. All Tranche B Term Loans outstanding
on the First Amendment Effective Date were repaid in full on the First Amendment Effective Date. All Tranche B-2 Term Loans outstanding
on the Second Amendment Effective Date were repaid in full on the Second Amendment Effective Date. All Tranche B-3 Term Loans were repaid
in full. The Borrower hereby further agrees to pay interest on the unpaid principal amount of the Loans (other than the Tranche -4B-5
Term Loans) from time to time outstanding from the Closing Date until payment in full thereof at the rates per annum, and on the date,
set forth in Section 2.13. The Borrower hereby further agrees to pay interest on the unpaid principal amount of the Tranche -4B-5
Term Loans from time to time outstanding from theFourth Eighth
Amendment Effective Date until payment in full thereof at the rates per annum, and on the dates, set forth in Section 2.13.
(b) Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender
from time to time under this Agreement.
(c) The
Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant to Section 9.6(d), and a subaccount therein
for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder and any Note evidencing such Loan, the Type
thereof and each Interest Period 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) both the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender’s share thereof.
(d) The
entries made in the Register and the accounts of each Lender maintained pursuant to Section 2.6(b) 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 the failure of any Lender or the Administrative Agent to maintain the Register or any such account, 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.
(e) The
Borrower agrees that, upon the request to the Administrative Agent by any Lender, the Borrower will execute and deliver to such Lender
a promissory note of the Borrower evidencing any Revolving Credit Loans or Tranche B-4-5
Term Loans, as the case may be, of such Lender, substantially in the forms of Exhibit F-1 and F-3, respectively, with appropriate
insertions as to date and principal amount; provided that delivery of such notes shall not be a condition precedent to the making
of the Loans on the Closing Date or the Restatement Funding Date.
2.7 Commitment
Fees, Other Fees. (v) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit
Lender which is not a Defaulting Lender a commitment fee for the period from and including the Closing Date to the last day of the Revolving
Credit Commitment Period, computed at the Commitment Fee Rate on the average daily amount of the Available Revolving Credit Commitment
of such Lender during the period for which payment is made, payable quarterly in arrears on the last Business Day of each March, June,
September and December and on the Revolving Credit Termination Date (or any earlier date of termination of the Revolving Credit
Commitments), commencing on the first of such dates to occur after the Closing Date; provided that to the extent previously paid
by the Borrower to the Administrative Agent, any such commitment fee owing to a Lender which is a Defaulting Lender shall be withheld
by the Administrative Agent for so long as such Lender remains a Defaulting Lender.
(b) The
Borrower agrees to pay to the Agents and the Arrangers the fees in the amounts and on the dates agreed to in writing by the Borrower,
the Agents and the Arrangers, as applicable, prior to the Restatement Funding Date. All such fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent, the Collateral Agent or the Arrangers, as applicable. Once paid, none of such fees shall
be refundable under any circumstances.
2.8 Termination
or Reduction of Revolving Credit Commitments. The Borrower shall have the right, upon not less
than three Business Days’ notice to the Administrative Agent (which shall promptly notify each Lender thereof), to terminate the
Revolving Credit Commitments or, from time to time, to reduce the amount of the Revolving Credit Commitments; provided that no
such termination or reduction of Revolving Credit Commitments shall be permitted if, after giving effect thereto and to any prepayments
of the Revolving Credit Loans made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving
Credit Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently
the Revolving Credit Commitments then in effect.
2.9 Optional
Prepayments. The Borrower may at any time and from time to time prepay the Loans, in whole or
in part, without premium or penalty (except as otherwise provided herein, including Section 2.3(ed)),
upon irrevocable notice delivered to the Administrative Agent, no later than 12:00 noon, New York City time, at least three Business Days
prior thereto in the case of SOFR Loans and at least one Business Day prior thereto in the case of Base Rate Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is of Revolving Credit Loans or Term Loans and whether of SOFR Loans
or Base Rate Loans; provided that such notice of prepayment may state that such notice is conditioned upon the effectiveness of
other financing, any public offering or any merger, acquisition or divestiture, in which case such notice may be revoked by notice to
the Administrative Agent on or prior to the specified effective date if such condition is not satisfied (it being understood and agreed
that the foregoing shall not impair or otherwise limit or reduce the Borrower’s obligation to indemnify and hold harmless Lenders
pursuant to Section 2.19(b) in connection with any such default in making any prepayment as specified in a notice of borrowing
that is later revoked); provided, further, that if a SOFR Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.19. Upon receipt of any such notice
the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with (except in the case of prepayments of Base Rate Loans that
are Revolving Credit Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Revolving Credit Loans shall be
in an aggregate principal amount of $1,000,000 or a whole multiple thereof. Voluntary prepayments of Term Loans shall be applied to any
tranche or tranches of Term Loans as specified by the Borrower and, within any such tranche so specified by the Borrower, to the scheduled
principal payments of Loans under such applicable tranche or tranches as directed by the Borrower and in the absence of such direction,
in the direct order of maturity.
2.10 Mandatory
Prepayments . (vi) If any Indebtedness shall be incurred by any Loan Party
or its Subsidiaries (excluding any Indebtedness incurred in accordance with Section 6.2 (other than pursuant to clause (m) thereof)),
then on the date of such incurrence, the Loans shall be prepaid by an amount equal to the amount of the Net Cash Proceeds of such incurrence,
as set forth in Section 2.10(d).
(b) If
on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless
a Reinvestment Notice shall be delivered in respect thereof, not later than five Business Days following the date of receipt by the Borrower
of such Net Cash Proceeds, the Loans shall be prepaid by an amount equal to the Disposition
Percentage of the amount of such Net Cash Proceeds, as set forth in Section 2.10(d); provided that, notwithstanding
the foregoing, on each Reinvestment Prepayment Date the Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount
with respect to the relevant Reinvestment Event, as set forth in Section 2.10(d). The provisions of this Section do not constitute
a consent to the consummation of any Disposition not permitted by Section 6.5.
(c) [Reserved];
(d) Amounts
to be applied in connection with prepayments made pursuant to this Section 2.10 (other than amounts to be applied in respect of Indebtedness
incurred in accordance with Section 6.2(m)) shall be allocated pro rata among the Tranche B-4-5
Term Loans, any Other Term Loans, any Extended Term Loans and any Incremental Equivalent Indebtedness (except to the extent that (i) any
Loan Modification Offer for any Extended Term Loans provides that such Extended Term Loans shall participate on a lesser basis or not
at all or (ii) any Incremental Assumption Agreement for any Other Term Loans or documentation governing any Incremental Equivalent
Indebtedness provides that such Other Term Loans or Incremental Equivalent Indebtedness, as applicable, shall participate on a lesser
basis or not at all) and applied in direct order of maturity against the remaining scheduled installments of principal due in respect
of the Tranche B-4-5
Term Loans, any Other Term Loans and any applicable Extended Term Loans under Sections 2.3(a), 2.3(b), 2.3(c) and under the
applicable Loan Modification Offer, respectively; provided that in the event there are no Tranche B-4-5
Term Loans, Other Term Loans, Extended Term Loans or Incremental Equivalent Indebtedness outstanding, mandatory prepayments shall be applied
to the prepayment of outstanding Revolving Credit Loans (without any accompanying mandatory reduction of the Revolving Credit Commitments)
in direct order of maturity, and second to cash collateralize outstanding Letters of Credit pro rata. Prepayments of Loans shall in all
cases be applied first to Base Rate Loans and second to SOFR Loans. Amounts to be applied pursuant to Section 2.10(a) resulting
from Indebtedness incurred in accordance with Section 6.2(m) shall be applied as directed by the Borrower.
(e) The
Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.10, (i) a certificate
signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the
extent practicable, at least three Business Days’ (but in any event no later than one Business Day’s) prior written notice
of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal
amount of each Loan (or portion thereof) to be prepaid. All prepayments of Loans under this Section 2.10 shall be subject to Section 2.19,
but shall otherwise be without premium or penalty, and shall be accompanied by (except in the case of prepayments of Base Rate Loans that
are Revolving Credit Loans) accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.
2.11 Conversion
and Continuation Options. (vii) The Borrower may elect from time to time
to convert SOFR Loans to Base Rate Loans by giving the Administrative Agent at least three Business Days’ prior irrevocable notice
of such election, provided that any such conversion of SOFR Loans may only be made on the last day of an Interest Period with respect
thereto. The Borrower may elect, from time to time, to convert Base Rate Loans to SOFR Loans by giving the Administrative Agent at least
three Business Days’ prior irrevocable notice of such election (which notice shall specify the length of the initial Interest Period
therefor); provided that no Base Rate Loan may be converted into a SOFR Loan (i) when any Event of Default has occurred and
is continuing and the Administrative Agent has or the Majority Facility Lenders in respect of such Facility have determined in its or
their sole discretion not to permit such conversions or (ii) after the date that is one month prior to the final scheduled termination
or maturity date of such Facility. If no Interest Period with respect to any SOFR Loan is specified in any such notice, then the Borrower
shall be deemed to have selected an Interest Period of one month’s duration. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof.
(b) Any
SOFR Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period”
set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loan; provided that no SOFR Loan
under a particular Facility may be continued as such (i) when any Event of Default has occurred and is continuing and the Administrative
Agent has or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such
continuations or (ii) after the date that is one month prior to the final scheduled termination or maturity date of such Facility,
and provided, further, that if the Borrower shall fail to give any required notice as described above in this paragraph
or if such continuation is not permitted pursuant to the preceding proviso such SOFR Loan shall be automatically converted to a Base Rate
Loan on the last day of such then expiring Interest Period. Upon receipt of any such notice the Administrative Agent shall promptly notify
each relevant Lender thereof.
2.12 Minimum
Amounts and Maximum Number of SOFR Tranches. Notwithstanding anything to the contrary in this
Agreement, all borrowings, conversions, continuations and optional prepayments of SOFR Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate
principal amount of the SOFR Loans comprising each SOFR Tranche shall be equal to $1,000,000 or a whole multiple of $1,000,000 in excess
thereof and (b) no more than ten SOFR Tranches shall be outstanding at any one time.
2.13 Interest
Rates and Payment Dates. (viii) Each SOFR Loan shall bear interest for
each day during each Interest Period with respect thereto at a rate per annum equal to Term SOFR determined for such day plus the Applicable
Margin.
(b) Each
Base Rate Loan shall bear interest at a rate per annum equal to the Base Rate plus the Applicable Margin.
(c) If
any Event of Default under Section 7(a) or 7(f) has occurred and is continuing, then, from the date of such Event of Default
and for so long as such Event of Default is continuing, to the fullest extent permitted by law, all overdue
amounts outstanding under this Agreement and the other Loan Documents shall bear interest (after as well as before judgment),
payable on demand, (i) in the case of principal, at the rate otherwise applicable to such Loan pursuant to the foregoing provisions
of this Section 2.13 plus 2.00% per annum and (ii) in all other cases, at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, when determined by reference to the Prime Rate and over a year
of 360 days at all other times) equal to the rate that would be applicable to Revolving Credit Loans that are Base Rate Loans plus 2.00%
per annum.
(d) Interest
shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to paragraph (c) above
shall be payable from time to time on demand.
2.14 Computation
of Interest and Fees. (ix) Interest, fees and commissions payable pursuant hereto
shall be calculated on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be, when determined
by reference to the Prime Rate and over a year of 360 days at all other times. The Administrative Agent shall as soon as practicable notify
the Borrower and the relevant Lenders of each determination of Term SOFR. Any change in the interest rate on a Loan resulting from a change
in the Base Rate or Term SOFR Reference Rate shall become effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and
the amount of each such change in interest rate.
(b) Each
determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding
on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver
to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 2.14(a).
2.15 Inability
to Determine Interest Rate and Alternate Rate of Interest(a).
(a) Subject
to this Section 2.15, if prior to the first day of any Interest Period:
(i) the
Administrative Agent shall have determined (which determination shall be conclusive and binding absent manifest error) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining Term SOFR, for such Interest
Period, or
(ii) the
Administrative Agent shall have received notice from the Majority Facility Lenders in respect of the relevant Facility that Term SOFR
determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or
telephonic notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any
SOFR Loans under the relevant Facility requested to be made on the first day of such Interest Period shall be made as Base Rate Loans,
(y) any Loans under the relevant Facility that were to have been converted on the first day of such Interest Period to SOFR Loans
shall be continued as Base Rate Loans and (z) any outstanding SOFR Loans under the relevant Facility shall be converted, on the last
day of the then current Interest Period with respect thereto, to Base Rate Loans. Until such notice has been withdrawn by the Administrative
Agent, no further SOFR Loans under the relevant Facility shall be made or continued as such, nor shall the Borrower have the right to
convert Loans under the relevant Facility to SOFR Loans.
(b) Benchmark
Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its
related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark, then (x) if a Benchmark Replacement
is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement
Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such
Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this
Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition
of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for
all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time)
on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to,
or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has
not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. If
the Benchmark Replacement is based upon Daily Simple SOFR, all interest payments will be payable on a quarterly basis.
(c) Benchmark
Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement,
the Administrative Agent will have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding
anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective
without any further action or consent of any other party to this Agreement or any other Loan Document.
(d) Notices;
Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the
implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration,
adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Borrower of (x) the removal or reinstatement
of any tenor of a Benchmark pursuant to Section 2.15(e) and (v) the commencement 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 2.15, including any determination with respect to a tenor, rate or adjustment or of the
occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection,
will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other
party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.15.
(e) Unavailability
of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection
with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR Reference
Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate
from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator
of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is 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 or non-representative tenor and (ii) if
a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service
for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or
will not be representative for a Benchmark (including a Benchmark Replacement), 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.
(f) Benchmark
Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the
Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued
during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request
for a Borrowing of or conversion to Base Rate Loans and (ii) any outstanding affected SOFR Loans will be deemed to have been converted
to Base Rate Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any time that a tenor
for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor
for such Benchmark, as applicable, will not be used in any determination of Base Rate.
2.16 Pro
Rata Treatment and Payments.
(a) Subject
to the express provisions of this Agreement which require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed
to Defaulting Lenders, and other than with respect to any substituted Lender in accordance with Section 2.22 or as required or permitted
under Section 2.20 or 9.21, each borrowing by the Borrower of Loans hereunder, each payment or prepayment of principal in respect
of any Loans hereunder, each payment of commitment fees pursuant to this Agreement, each reduction of the Term Loan Commitments or the
Revolving Credit Commitments and each conversion or continuation of any borrowing of Loans hereunder shall be allocated pro rata
among the Lenders in accordance with their respective applicable Commitments (or if such Commitments shall have expired or been terminated,
in accordance with the respective principal amounts of their outstanding Loans); provided that the foregoing provisions of this
Section 2.16(a) shall not be construed to apply to any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or Commitments to any assignee or participant, other than to the Borrower or any of its Subsidiaries
or Affiliates (unless made in accordance with Section 9.6(i) hereto) (as to which the foregoing provisions of this Section 2.16(a) shall
apply), made pursuant to and in accordance with the express provisions of this Agreement. Each Lender agrees that in computing such Lender’s
portion of any borrowing of Loans to be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage
of such borrowing of Loans to the next higher or lower whole Dollar amount. Each payment in respect of Reimbursement Obligations in respect
of any Letter of Credit shall be made to the Issuing Lender that issued such Letter of Credit.
(b) All
payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made after 12:00
noon, New York City time, on any Business Day shall be deemed to have been made on the next succeeding Business Day (or the same Business
Day in the Administrative Agent’s sole discretion). The Administrative Agent shall distribute such payments to the Lenders promptly
upon receipt in like funds as received. Except as otherwise expressly provided herein, if any payment hereunder becomes due and payable
on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a SOFR Loan
becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day
unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two
sentences, interest thereon shall be payable at the then applicable rate during such extension.
(c) Unless
the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required
time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at
a rate equal to the daily average Federal Funds Effective Rate for the period until such Lender makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under
this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available
to the Administrative Agent by such Lender within three Business Days of such Borrowing Date, the Administrative Agent shall also be entitled
to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand,
from the Borrower.
(d) Unless
the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made hereunder
that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making
such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the
Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by
the Borrower within three Business Days of such due date, the Administrative Agent shall be entitled to recover, on demand, from each
Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at a rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative
Agent or any Lender against the Borrower.
2.17 Requirements
of Law(a). (i)Notwithstanding
any other provision of this Agreement, if any Change in Law shall:
(i) subject
the Administrative Agent, any Lender or the Issuing Lender to any Taxes in connection with this Agreement or any loan, letter of credit
or commitment made hereunder or its deposits, reserves, other liabilities or capital attributable thereto, or change the basis of taxation
of payments in respect thereof (except for Indemnified Taxes or Other Taxes that are the subject of Section 2.18 and the imposition
of any Excluded Tax payable by such Lender or the Issuing Lender);
(ii) impose,
modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any Lender
or the Issuing Lender or any office of such Lender or the Issuing Lender ; or
(iii) shall
impose on such Lender or the Issuing Lender or any interbank market any other condition affecting this Agreement or SOFR Loans made by
such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be
to increase the cost to such Lender or the Issuing Lender, by an amount which such Lender or the Issuing Lender deems to be material,
of making, converting into, continuing or maintaining SOFR Loans or issuing, maintaining or participating in Letters of Credit, or to
reduce any amount received or receivable hereunder in respect thereof (whether of principal, interest or otherwise), then, in any such
case, the Borrower shall promptly pay such Lender or the Issuing Lender, upon its demand, any additional amounts necessary to compensate
such Lender or the Issuing Lender for such increased cost or reduced amount received or receivable. If any Lender or the Issuing Lender
becomes entitled to claim any additional amounts pursuant to this Section, it shall promptly notify the Borrower (with a copy to the Administrative
Agent) of the event by reason of which it has become so entitled.
(b) If
any Lender or the Issuing Lender shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has
or would have the effect of reducing the rate of return on such Lender’s or the Issuing Lender’s capital or liquidity (or
on the capital or liquidity of such Lender’s or the Issuing Lender’s holding company) as a consequence of this Agreement or
the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the
Issuing Lender pursuant hereto to a level below that which such Lender or the Issuing Lender of such Lender’s or the Issuing Lender’s
holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Lender’s
policies and the policies of such Lender’s or the Issuing Lender’s holding company with respect to capital adequacy or liquidity
requirements) by an amount deemed by such Lender or the Issuing Lender to be material, then from time to time, after submission by such
Lender or the Issuing Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor, the Borrower shall
pay to such Lender or the Issuing Lender such additional amount or amounts as will compensate such Lender or the Issuing Lender or such
Lender’s or the Issuing Lender’s holding company for such reduction.
(c) A
certificate as to any additional amounts payable pursuant to this Section submitted by any Lender or the Issuing Lender or their
respective applicable holding company to the Borrower setting out in reasonable detail the method of determination of such additional
amounts (with a copy to the Administrative Agent) shall be conclusive in the absence of manifest error. The Borrower shall pay such Lender
or the Issuing Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
The obligations of the Borrower pursuant to this Section shall survive the termination of this Agreement and the payment of amounts
payable hereunder.
(d) Failure
or delay on the part of any Lender or the Issuing Lender to demand compensation for any increased costs or reduction in amounts received
or receivable or reduction in return on capital shall not constitute a waiver of such Lender’s or the Issuing Lender’s right
to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender or the Issuing
Lender under paragraph (a) or (b) above with respect to increased costs or reductions with respect to any period prior to the
date that is 120 days prior to such request if such Lender or the Issuing Lender knew or could reasonably have been expected to know
of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would result in a claim
for increased compensation by reason of such increased costs or reductions; provided further that the foregoing limitation shall
not apply to any increased costs or reductions arising out of the retroactive application of any Change in Law within such 120-day period.
The protection of this Section shall be available to each Lender and the Issuing Lender regardless of any possible contention of
the invalidity or inapplicability of the Change in Law that shall have occurred or been imposed.
2.18 Taxes. (i) Any
and all payments by or on account of any obligation of the Borrower or any other Loan Party hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Taxes, except as required by applicable law; provided that, if any
Indemnified Taxes or Other Taxes are required by law to be withheld or deducted from such payments, then (i) the sum payable by the
Borrower or any other Loan Party shall be increased as necessary so that after making all required deductions (including deductions applicable
to additional sums payable under this Section) the Administrative Agent, each Lender and the Issuing Lender (as the case may be) receives
an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the Borrower or such Loan
Party, or the Administrative Agent shall make such deductions or withholdings and (iii) the Borrower or such Loan Party, or the Administrative
Agent shall pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law.
(b) In
addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) The
Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Lender, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing Lender, as the case
may be, on or with respect to any payment by or on account of any obligation of the Borrower or any other Loan Party hereunder or under
any other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and 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 such payment or liability delivered to the Borrower by a Lender or the Issuing Lender, or by the Administrative Agent on behalf of
itself, a Lender or the Issuing Lender, shall be conclusive absent manifest error.
(d) As
soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower or any other Loan Party to a Governmental Authority,
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.
(e) (A) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the 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 Lender, if requested by the Borrower
or the Administrative Agent, shall deliver such other documentation prescribed by law as will enable the Borrower or the Administrative
Agent to determine whether or not such Lender is subject to any withholding (including 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 Section 2.18(e)(ii) and (f)) shall not be required if in the Lender's judgment such
completion, execution or submission would subject such Lender to any material unreimbursed cost or expense (or, in the case of a Change
in Law, any incremental material unreimbursed cost or expense) or would materially prejudice the legal or commercial position of such
Lender or if such Lender is not legally eligible to deliver such documentation. Upon the reasonable request of such Borrower or the Administrative
Agent, any Lender shall update any form or certification previously delivered pursuant to this Section 2.18(e). If any form or certification
previously delivered pursuant to this Section 2.18(e) expires or becomes obsolete or inaccurate in any respect with respect
to a Lender, such Lender shall promptly notify such Borrower and the Administrative Agent in writing of such expiration, obsolescence
or inaccuracy and update the form or certification or notify the Borrower and the Administrative Agent in writing of its legal ineligibility
to do so.
(ii) Without
limiting the generality of the foregoing, any Foreign Lender shall, if it is legally eligible to do so, deliver to such Borrower and the
Administrative Agent on or prior to the date on which such Lender becomes a party hereto and from time to time thereafter upon the expiration
of the previously delivered form or upon the reasonable request of the Borrower or the Administrative Agent, two accurate and complete
executed copies of whichever of the following is applicable: (A) IRS Form W-8BEN or W-8BEN-E (or the relevant successor form)
claiming eligibility for benefits of an income tax treaty to which the U.S. is a party; (B) IRS Form W-8ECI (or its successor
form); (C) IRS Form W-8IMY (or its successor form), together with any required attachments; (D) IRS Form W-8EXP (or
its successor form); or (E) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under the
Code both, IRS Form W-8BEN or W-8BEN-E and a U.S. Tax Compliance Certificate substantially in the applicable form of Exhibit H;
provided that if a Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming
the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and
indirect partner. Any Lender that is not a Foreign Lender shall deliver to Borrower and the Administrative Agent (at the times and in
the manner provided with respect to Foreign Lenders under the preceding sentence) IRS Form W-9 (or its successor form).
(f) If
a payment made to a Lender under this Agreement would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code, as applicable), such Lender shall deliver to the Administrative Agent, at the time or times prescribed by law and at such time
or times reasonably requested by 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 Administrative Agent as
may be necessary for the Administrative Agent to comply with its obligations under FATCA, to determine that such Lender has or has not
complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes
of this Section 2.18(f), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(g) If
the Administrative Agent, any Lender or the Issuing Lender 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 by the Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 2.18, it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Lender or the Issuing 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, such Lender or the Issuing Lender agrees to repay the amount paid over to the Borrower (plus any
interest, penalties or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or the Issuing
Lender in the event the Administrative Agent, such Lender or the Issuing Lender is required to repay such refund to such Governmental
Authority. Notwithstanding anything to the contrary in this Section 2.18(g), in no event will the Administrative Agent, any Lender
or the Issuing Lender be required to pay any amount to the Borrower pursuant to this paragraph if the payment of such amount would place
the Administrative Agent, such Lender or the Issuing Lender in a less favorable net after-Tax position than it would have been in if the
indemnification payments or additional amounts giving rise to such refund had never been paid. Nothing in this Section 2.18(g) shall
be construed to require the Administrative Agent, any Lender or the Issuing Lender to make available its Tax returns or any other information
relating to its Taxes that it deems confidential to the Borrower or any other Person.
(h) For
the avoidance of doubt, for purposes of determining withholding Taxes imposed under FATCA, (a) as
of the ThirdEighth
Amendment Effective Date, the Tranche B-4-5
Loan Terms issued on the ThirdEighth
Amendment Effective Date shall not and (b) as of the Fourth Amendment Effective Date, the Fourth
Amendment Incremental Term Loans issued on the Fourth Amendment Effective Date shall not, in each case, qualify as
“grandfathered obligations” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i) or 1.1471-2T(b)(2)(i).
(i) Barclays,
as Administrative Agent, and any successor or supplemental Administrative Agent that is not a “United States person” within
the meaning of Section 7701(a)(3) of the Code, shall deliver to the Borrower, on or prior to the date on which it becomes a
party to this Agreement, two duly completed copies of IRS Form W-8IMY, with the effect that the Borrower may make payments to the
Administrative Agent, to the extent such payments are received by the Administrative Agent as an intermediary, without deduction or withholding
of any Taxes imposed by the United States.
2.19 Indemnity.
The Borrower agrees to indemnify each Lender for and to hold each Lender harmless from any loss or expense that such Lender may reasonably
sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of SOFR
Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default
by the Borrower in making any prepayment after the Borrower has given a notice thereof in accordance with the provisions of this Agreement
or (c) the making of a prepayment or conversion of SOFR Loans on a day that is not the last day of an Interest Period with respect
thereto. A certificate as to any amounts payable pursuant to this Section submitted to the Borrower by any Lender shall be conclusive
in the absence of manifest error. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
2.20 Illegality.
Notwithstanding any other provision herein, if any Change in Law shall make it unlawful for any Lender to make or maintain SOFR Loans
as contemplated by this Agreement or to give effect to its obligations as contemplated hereby with respect to any SOFR Loan, then (a) the
commitment of such Lender hereunder to make SOFR Loans, continue SOFR Loans as such and convert Base Rate Loans to SOFR Loans shall forthwith
be canceled, (b) such Lender’s Loans then outstanding as SOFR Loans, if any, shall be converted automatically to Base Rate
Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required
by law and (c) all payments and prepayments of principal that would otherwise have been applied to repay the SOFR Loans that would
have been made by such Lender or the converted SOFR Loans of such Lender shall instead be applied to repay the Base Rate Loans made by
such Lender in lieu of, or resulting from the conversion of, such SOFR Loans. If any such conversion of a SOFR Loan occurs on a day which
is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any,
as may be required pursuant to Section 2.19.
2.21 Change
of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the
operation of Section 2.17, 2.18(a) or 2.20 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
with the object of avoiding the consequences of such event; provided that such designation is made on terms that, in the sole judgment
of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory disadvantage, and provided,
further, that nothing in this Section shall affect or postpone any of the obligations of the Borrower or the rights of any
Lender pursuant to Section 2.17, 2.18(a) or 2.20. The Borrower hereby agrees to pay all reasonable costs and expenses incurred
by any Lender in connection with any such designation or assignment.
2.22 Substitution
of Lenders. Upon the receipt by the Borrower from any Lender of a claim under Section 2.17,
2.18 or 2.20, or upon receipt by the Borrower of written notice that any Lender has become a Defaulting Lender in accordance with the
provisions set forth in the definition of “Defaulting Lender”, or if any Lender refuses to consent to any amendment, waiver
or other modification of any Loan Document requested by the Borrower that requires the consent of all Lenders directly affected thereby
and such amendment, waiver or other modification is consented to by the Required Lenders, the Borrower may: (a) request one more
of the other Lenders to acquire and assume all or part of such Lender’s Loans, Reimbursement Obligations and Revolving Credit Commitment;
or (b) replace such Lender by designating another Lender or a financial institution that is willing to acquire such Loans and Reimbursement
Obligations and assume such Revolving Credit Commitment; provided that (i) such replacement does not conflict with any Requirement
of Law, (ii) no Event of Default (other than, in the case of the replacement of a Defaulting Lender, as a result of the failure of
the Borrower to satisfy its cash collateralization obligations pursuant to Section 2.31(a)(ii)) 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 Reimbursement Obligations, accrued interest, fees and other amounts owing to such replaced Lender prior to the date of replacement
(including all amounts then owing to such replaced Lender pursuant to Sections 2.17, 2.18 and 2.20 and, if applicable, the prepayment
fee pursuant to Section 2.3(d) (with such assignment being deemed to be a voluntary prepayment for purposes of determining the
applicability of Section 2.9, such amount to be payable by the Borrower)), (iv) the Borrower shall be liable to such replaced
Lender under Section 2.19 if any SOFR Loan owing to such replaced Lender shall be prepaid (or purchased) other than on the last day
of the Interest Period relating thereto, (v) the replacement bank or institution, if not already a Lender, shall be reasonably satisfactory
to the Administrative Agent and the Issuing Lender, and (vi) the replaced Lender shall be obligated to make such replacement in accordance
with the provisions of Section 9.6 (provided that the Borrower or replacement Lender shall be obligated to pay the registration
and processing fee except in the case of a Defaulting Lender). Each of the Issuing Lender and each Lender hereby grants to the Administrative
Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of the Issuing Lender
or such Lender, as the case may be, as assignor, any Assignment and Assumption necessary to effectuate any assignment of the Issuing Lender’s
or such Lender’s interests hereunder in the circumstances contemplated by this Section 2.22. A Lender shall not be required
to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling
the Borrower to require such assignment and delegation cease to apply.
2.23 L/C
Commitment(a) . (i) Subject
to the terms and conditions hereof, each Issuing Lender, in reliance on the agreements of the other Revolving Credit Lenders set forth
in Section 2.26(a), agrees to issue letters of credit (the letters of credit issued on and after the Closing Date, together with
the Existing Letters of Credit, collectively, the “Letters of Credit”) for the account of the Borrower on any Business
Day during the period commencing on the Closing Date and ending 30 days prior to the Revolving Credit Termination Date in such form as
may be approved from time to time by such Issuing Lender; provided that no Issuing Lender shall have any obligation to issue any
Letter of Credit, and no Revolving Credit Lender shall have any obligations to participate in any Letter of Credit, if, after giving effect
to such issuance or participation, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the
Available Revolving Credit Commitments would be less than zero; provided, further, that in no event shall Barclays, RBC,
Bank of America, Credit Suisse, Deutsche Bank AG New York Branch, Bank of Montreal, Citizens, TD Securities or Rabobank, or any of their
respective offices, branches or Affiliates, in each case to the extent that it is an Issuing Lender hereunder, be required to issue any
trade Letter of Credit. Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no later than the earlier
of (x) the first anniversary of its date of issuance and (y) the date which is five Business Days prior to the Revolving Credit
Termination Date, provided that any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in clause (y) above).
(b) No
Issuing Lender shall at any time be obligated to issue any Letter of Credit hereunder if such issuance would conflict with, or cause such
Issuing Lender or any L/C Participant to exceed any limits imposed by, any applicable Requirement of Law. Notwithstanding anything to
the contrary contained in this Section 2.23 or elsewhere in this Agreement, in the event that a Revolving Credit Lender is
a Defaulting Lender, the Issuing Lender shall not be required to issue any Letter of Credit unless such Defaulting Lender’s Revolving
Credit Percentage of the L/C Obligations, after giving effect to the issuance of such Letter of Credit, may be reallocated among Non-Defaulting
Lenders in accordance with Section 2.31(a)(iv) or, if such reallocation is not available in accordance with such Section,
each Issuing BankLender
has entered into arrangements satisfactory to it and the Borrower to eliminate such Issuing Bank’sLender’s
risk with respect to the participation in Letters of Credit by all such Defaulting Lenders, which may include by cash collateralizing
each such Defaulting Lender’s Pro Rata Percentage of each Letter of Credit issued while such Defaulting Lender remains a Defaulting
Lender.
2.24 Procedure
for Issuance of Letter of Credit. The Borrower may from time to time request that an Issuing
Lender issue a Letter of Credit by delivering to such Issuing Lender at its address for notices specified herein an Application therefor,
completed to the reasonable satisfaction of such Issuing Lender, and such other certificates, documents and other papers and information
as such Issuing Lender may reasonably request with respect to the requested Letter of Credit. Upon receipt of any Application, an Issuing
Lender will process such Application and the certificates, documents and other papers and information delivered to it in connection therewith
in accordance with its customary procedures and shall promptly issue the Letter of Credit requested thereby (but in no event shall any
Issuing Lender be required to issue any Letter of Credit earlier than three Business Days after its receipt of the Application therefor
and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed to by such Issuing Lender and the Borrower. Promptly after issuance by
an Issuing Lender of a Letter of Credit, such Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower. Each Issuing
Lender shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the issuance
of each Letter of Credit issued by it (including the amount thereof).
2.25 Fees
and Other Charges. (i) The Borrower will pay a fee on the aggregate drawable amount of all
outstanding Letters of Credit at a per annum rate equal to the Applicable Margin then in effect with respect to Revolving Credit Loans
that are SOFR Loans, shared ratably among the Lenders and payable quarterly in arrears on each L/C Fee Payment Date after the issuance
date. In addition, the Borrower shall pay to each Issuing Lender for its own account a fronting fee in an amount equal to 0.25% of the
aggregate drawable amount of all outstanding Letters of Credit issued by it, payable quarterly in arrears on each L/C Fee Payment Date
after the date of Issuance.
(b) In
addition to the foregoing fees, the Borrower shall pay or reimburse each Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by such Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise administering
any Letter of Credit.
2.26 L/C
Participations. (i) Each Issuing Lender irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce each Issuing Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from each Issuing Lender, on the terms and conditions hereinafter stated,
for such L/C Participant’s own account and risk an undivided interest equal to such L/C Participant’s Revolving Credit Percentage
in each Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued by such Issuing Lender hereunder
and the amount of each draft paid by such Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably agrees with
each Issuing Lender that, if a draft is paid under any Letter of Credit by such Issuing Lender for which such Issuing Lender is not reimbursed
in full by the Borrower in accordance with the terms of this Agreement, such L/C Participant shall pay to such Issuing Lender upon demand
at such Issuing Lender’s address for notices specified herein an amount equal to such L/C Participant’s Revolving Credit Percentage
of the amount of such draft, or any part thereof, that is not so reimbursed.
(b) If
any amount required to be paid by any L/C Participant to an Issuing Lender pursuant to Section 2.26(a) in respect of any unreimbursed
portion of any payment made by such Issuing Lender under any Letter of Credit is paid to such Issuing Lender within three Business Days
after the date such payment is due, such L/C Participant shall pay to such Issuing Lender on demand an amount equal to the product of
(i) such amount, times (ii) the daily average Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available to such Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required
to be paid by any L/C Participant pursuant to Section 2.26(a) is not made available to such Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due, such Issuing Lender shall be entitled to recover from such L/C Participant,
on demand, such amount with interest thereon calculated from such due date at the rate per annum applicable to Base Rate Loans under the
Revolving Credit Facility. A certificate of such Issuing Lender submitted to any L/C Participant with respect to any such amounts owing
under this Section shall be conclusive in the absence of manifest error.
(c) Whenever,
at any time after an Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its pro rata
share of such payment in accordance with Section 2.26(a), such Issuing Lender receives any payment related to such Letter of Credit
(whether directly from the Borrower or otherwise, including proceeds of collateral applied thereto by such Issuing Lender), or any payment
of interest on account thereof, such Issuing Lender will distribute to such L/C Participant its pro rata share thereof; provided,
however, that in the event that any such payment received by such Issuing Lender shall be required to be returned by such Issuing
Lender, such L/C Participant shall return to such Issuing Lender the portion thereof previously distributed by such Issuing Lender to
it.
(d) Each
Revolving Credit Lender’s obligation to purchase, pursuant to Section 2.26(a), such Lender’s Revolving Credit Percentage
in each Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued by such Issuing Lender hereunder
shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Lender or the Borrower may have against such Issuing Lender, the Borrower
or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default or the failure
to satisfy any of the other conditions specified in Section 4; (iii) any adverse change in the condition (financial or otherwise)
of the Borrower or any other Loan Party; (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other
Loan Party or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the
foregoing.
2.27 Reimbursement
Obligation of the Borrower. The Borrower agrees to reimburse each Issuing Lender on each date
on which such Issuing Lender notifies the Borrower of the date and amount of a draft presented under any Letter of Credit and paid by
such Issuing Lender (but in any event no such reimbursement shall be required before the date on which Base Rate Loans would be made (or
the procedure specified in Section 2.26 would become applicable) as described in the last two sentences of this Section) for the
amount of (a) such draft so paid and (b) any taxes, fees, charges or other costs or expenses incurred by such Issuing Lender
in connection with such payment (the amounts described in the foregoing clauses (a) and (b) in respect of any drawing, collectively,
the “Payment Amount”). Each such payment shall be made to such Issuing Lender at its address for notices specified
herein in lawful money of the United States of America and in immediately available funds. Interest shall be payable on each Payment Amount
from the date of the applicable drawing until payment in full at the rate set forth in (i) until the second Business Day following
the date of the applicable drawing, Section 2.13(b) and (ii) thereafter, Section 2.13(c). Each drawing under any Letter
of Credit shall (unless an event of the type described in clause (i) or (ii) of Section 7(f) shall have occurred and
be continuing with respect to the Borrower, in which case the procedures specified in Section 2.26 for funding by L/C Participants
shall apply) constitute a request by the Borrower to the Administrative Agent for a borrowing pursuant to Section 2.5 of Base Rate
Loans in the amount of such drawing. The Borrowing Date with respect to such borrowing shall be the first date on which a borrowing of
Revolving Credit Loans could be made, pursuant to Section 2.5, if the Administrative Agent had received a notice of such borrowing
at the time of such drawing under such Letter of Credit.
2.28 Obligations
Absolute. The Borrower’s obligations under Sections 2.23 through 2.29 shall be absolute
and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower
may have or have had against any Issuing Lender, any L/C Participant, any beneficiary of a Letter of Credit or any other Person. The Borrower
also agrees that each Issuing Lender and the L/C Participant shall not be responsible for, and the Borrower’s Reimbursement Obligations
under Section 2.27 shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Borrower
and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever
of the Borrower against any beneficiary of such Letter of Credit or any such transferee. No Issuing Lender or L/C Participant shall be
liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted,
in connection with any Letter of Credit, except for errors or omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence, willful misconduct or bad faith of such Issuing Lender. The Borrower agrees that
any action taken or omitted by an Issuing Lender under or in connection with any Letter of Credit issued by it or the related drafts or
documents, if done in the absence of gross negligence, willful misconduct or bad faith and in accordance with the standards of care specified
in the Uniform Commercial Code of the State of New York, shall be binding on the Borrower and shall not result in any liability of such
Issuing Lender or any L/C Participant to the Borrower.
2.29 Letter
of Credit Payments. If any draft shall be presented for payment under any Letter of Credit, the
relevant Issuing Lender shall promptly notify the Borrower of the date and amount thereof. The responsibility of the relevant Issuing
Lender to the Borrower in connection with any draft presented for payment under any Letter of Credit issued by such Issuing Lender shall,
in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including
each draft) delivered under such Letter of Credit in connection with such presentment are substantially in conformity with such Letter
of Credit.
2.30 Applications.
To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of Sections 2.23
through 2.29, the provisions of Sections 2.23 through 2.29 shall apply; provided, however, that any term, condition or provision
of any Application which is in addition to, or the subject matter of which is not in, part of or covered by, the provisions of Sections
2.23 through 2.29 shall not be considered as being or deemed to be in conflict with or inconsistent with the provisions of Sections 2.23
through 2.29.
2.31 Defaulting
Lenders. (i) Notwithstanding anything to the contrary contained in this Agreement, if any
Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(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.
(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 7 or otherwise) or received by the Administrative
Agent from a Defaulting Lender pursuant to Section 9.7 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 Issuing Lender hereunder; third, to cash
collateralize the Issuing Lender’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.31(d);
fourth, as the Borrower may request (so long as no Default or Event of 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 Issuing Lender’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 2.31(d); sixth, to the payment of any
amounts owing to the Lenders or the Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender
or the Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this
Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a
result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such
Defaulting Lender’s breach of its obligations under this Agreement; and eighth, so long as payment on account of any amount
owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against the Defaulting
Lender required to be paid under the seventh clause above has been made, 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 Disbursements
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 4.2 were satisfied or waived, such payment shall
be applied solely to pay the Loans of, and L/C Disbursements owed to, all Lenders that are not Defaulting Lenders (such Lenders, “Non-Defaulting
Lenders”) on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Disbursements owed to, such Defaulting
Lender until such time as all Loans and L/C Exposure are held by the Lenders pro rata in accordance with the Commitments under the applicable
facility without giving effect to Section 2.31(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 2.31(a)(ii) shall
be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain
Fees. (A) No Defaulting Lender shall be entitled to receive any Commitment Fee 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).
(A) Each
Defaulting Lender shall be entitled to receive L/C Participation Fees for any period during which that Lender is a Defaulting Lender only
to the extent allocable to its Pro Rata Percentage of the stated amount of Letters of Credit for which it has provided cash collateral
pursuant to Section 2.31(d).
(B) With
respect to any L/C Participation Fee not required to be paid to any Defaulting Lender pursuant to clause (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 obligation to fund participations in respect of Letters of Credit that have been reallocated to such
Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Issuing Lender the amount of any such fee otherwise payable
to such Defaulting Lender to the extent allocable to the Issuing Lender’s Fronting Exposure to such Defaulting Lender, and (z) not
be required to pay the remaining amount of any such fee
(iv) Reallocation
of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s obligation to fund participations
in respect of Letters of Credit shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Percentages
(calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the conditions set forth
in Section 4.2 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative
Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and
(y) such reallocation does not cause the aggregate Revolving Extensions of Credit of any Non-Defaulting Lender to exceed such non-Defaulting
Lender’s Revolving Credit Commitment. Subject to Section 9.24, 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.
(v) Cash
Collateral. If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall,
without prejudice to any right or remedy available to it hereunder or under law, cash collateralize the Issuing Lender’s Fronting
Exposure in accordance with the procedures set forth in Section 2.31(d).
(b) Defaulting
Lender Cure. If the Borrower, the Administrative Agent and the Issuing Lender 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 Loans and funded and unfunded participations in Letters of Credit to be held pro rata by the
Lenders in accordance with the Commitments under the applicable facility (without giving effect to Section 2.31(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; and
provided, further, that if any amounts would be due to the Non-Defaulting Lenders under Section 2.19 as a result of
a payment of a SOFR Loan, the Defaulting Lender shall pay such amounts to the Non-Defaulting Lenders entitled thereto.
(c) New
Letters of Credit. So long as any Lender is a Defaulting Lender, the Issuing Lender shall not be required to issue, extend, renew
or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
(d) Cash
Collateral. (A)At any time that there shall exist a Defaulting Lender, within one Business Day following the written request of the
Administrative Agent or the Issuing Lender (with a copy to the Administrative Agent) the Borrower shall cash collateralize the Issuing
Lender’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.31(a)(iv) and
any cash collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
(ii) The
Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for
the benefit of the Issuing Lender, and agrees to maintain, a first priority security interest in all such cash collateral as security
for the Defaulting Lenders’ obligation to fund participations in respect of Letters of Credit, to be applied pursuant to clause
(b) below. 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 and the Issuing Lender as herein provided (other than Permitted Liens), or that the total amount of
such cash collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent,
pay or provide to the Administrative Agent additional cash collateral in an amount sufficient to eliminate such deficiency (after giving
effect to any cash collateral provided by the Defaulting Lender.
(iii) Notwithstanding
anything to the contrary contained in this Agreement, cash collateral provided under this Section 2.31 in respect of Letters of Credit
shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letters of Credit
(including, as to cash collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the cash collateral
was so provided, prior to any other application of such property as may otherwise be provided for herein.
(iv) Cash
collateral (or the appropriate portion thereof) provided to reduce the Issuing Lender’s Fronting Exposure shall no longer be required
to be held as cash collateral pursuant to this Section 2.31 following (i) the elimination of the applicable Fronting Exposure
(including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative
Agent and the Issuing Lender that there exists excess cash collateral; provided that, subject to this Section 2.31 the Person
providing cash collateral and the Issuing Lender may agree that cash collateral shall be held to support future anticipated Fronting Exposure
or other obligations and provided, further, that to the extent that such cash collateral was provided by the Borrower, such
cash collateral shall remain subject to the security interest granted pursuant to the Loan Documents.
2.32 Incremental
Loans and Commitments.
(a) The
Borrower may, by written notice to the Administrative Agent from time to time request (A) Incremental Term Loan Commitments, and/or
(B) Incremental Revolving Commitments by increasing the Total Revolving Credit Commitments, from one or more Incremental Term Lenders
and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall
set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Commitments being requested (which shall
be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments
or Incremental Revolving Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60
days after the date of such notice) (the “Increased Amount Date”), and (iii) with respect to Incremental Term
Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche B-4-5
Term Loans or commitments to make term loans with terms different from the Tranche B-4-5
Term Loans, including, for the avoidance of doubt, tranche A term loans (such other term loans, the “Other Term Loans”).
(b) The
Borrower may seek Incremental Term Loan Commitments or Incremental Revolving Commitments from existing Lenders (each of which shall be
entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional
lenders who will become Incremental Term Lenders or Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental
Term Lender or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement
and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or
Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental
Term Loans that are additional Tranche B-4-5
Term Loans shall be identical to those of the Tranche B-4-5
Term Loans on the FourthEighth
Amendment Effective Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Commitments shall be identical
to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date (i) except for (x) pricing,
fees, rate floors and prepayment or redemption premiums, which reflect market terms and conditions at the time of incurrence or issuance,
(y) covenants or other provisions applicable only to periods after the Latest Maturity Date that is in effect on the date such Incremental
Revolving Loans and Incremental Revolving Commitments are issued, incurred or obtained or which are added for the benefit of the Lenders,
and (z) provisions that reflect the nature of such Incremental Revolving Loans as fixed or floating rate, and (ii) except as
otherwise set forth herein or in the Incremental Assumption Agreement, and, for purposes of this clause (ii), and such other terms not
consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent. The terms and provisions
of the Other Term Loans shall be identical to those of the Tranche B-4-5
Term Loans, as applicable, (i) except for (x) pricing, fees, rate floors and prepayment or redemption premiums, which reflect
market terms and conditions at the time of incurrence or issuance, (y) covenants or other provisions applicable only to periods after
the Latest Maturity Date that is in effect on the date such Other Term Loan is issued, incurred or obtained or which are added for the
benefit of the Lenders, and (z) provisions that reflect the nature of such Other Term Loan as fixed or floating rate, and (ii) except
as otherwise set forth herein or in the Incremental Assumption Agreement, and, for purposes of this clause (ii), any such other terms
not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that,
notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving
Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligations).
Without the prior written consent of the Required Lenders:
(i) except
with respect to Other Term Loans that contain provisions customarily applicable to tranche A term loans, the final maturity date of any
Other Term Loans shall be no earlier than the Latest Maturity Date,
(ii) except
with respect to Other Term Loans that contain provisions customarily applicable to tranche A term loans, the Weighted Average Life to
Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder
which has the longest Weighted Average Life to Maturity,
(iii) the
obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of
the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other
than the Subsidiary Guarantors,
(iv) the
Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),
(v) in
connection with Other Term Loans that are incurred prior to the twenty four-month anniversary of the ThirdEighth
Amendment Effective Date and contain provisions customarily applicable to Tranche B term loans, if the initial All-In Yield of such Other
Term Loans exceeds the All-In Yield for the Tranche B-4-5
Term Loans that are SOFR Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein
as the “Yield Differential”), then the Applicable Margin then in effect for Tranche B-4-5
Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans; provided,
further, that this clause (v) shall not apply to Other Term Loans that are incurred to finance, in whole or in part, a Transformative
Acquisition (this clause (v), the “MFN Provision”),
and
(vi) with
respect to Other Term Loans that contain provisions customarily applicable to tranche A term loans, the pricing of Other Term Loans may
be subject to “most favored nations” provisions if and to the extent set forth in the Incremental Assumption Agreement for
such tranche of Other Term Loans,
The Administrative
Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby
agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but
only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment or the Incremental Revolving
Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the
Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding
the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.32
unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such
extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to
be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the
Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company
or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only
to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary
Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or
warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted
Acquisition, then such Incremental Term Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall
not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied
and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the
Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would
be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the
financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental
Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate
as if such events had occurred as of the first day of such period, and assuming that (X) the Incremental Revolving Commitments to
be incurred on such date are fully drawn and (Y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans
borrowed on such date are not netted from Consolidated Total
Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratio, (iii) except as otherwise specified in the applicable
Incremental Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders)
legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with
those delivered on the Restatement Funding Date under Section 4.1, (iv) the Administrative Agent and each applicable Lender
shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment
and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, to
the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative Agent.
(d) Each
of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may
be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in
each borrowing hereunder of outstanding Tranche B-4-5
Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of the Tranche B-4-5
Term Loans that are SOFR Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion
of each Incremental Term Loan to each outstanding borrowing of Tranche B-4-5
Term Loans that are SOFR Loans on a pro rata basis. Any conversion of Tranche B-4-5
Term Loans that are SOFR Loans to Base Rate Loans required by the preceding sentence shall not be subject to Section 2.19. If any
Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche B-4-5
Term Loans that are SOFR Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall
be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are
not Other Term Loans, the scheduled amortization payments under Section 2.3(a) required to be made after the making of such
Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans and shall be further
increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the
Tranche B-4-5
Term Lenders were entitled before such recalculation.
(e) The
Loans and Commitments extended or established pursuant to this Section 2.32 shall constitute Loans and Commitments under, and shall
be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit
equally and ratably from the guarantees and security interests created by the Security Documents. The Loan Parties shall take any actions
reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security
Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment
of any such Loans or any such Commitments.
(f) On
any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms
and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the
Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with
accrued interest), 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, such Revolving Credit Loans will be held by existing Revolving Credit
Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition
of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed
for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan
and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters
relating thereto.
Section 3. REPRESENTATIONS
AND WARRANTIES
To induce the Agents, the Issuing Lender and the
Lenders to enter into this Agreement and to make the Loans and to issue or participate in Letters of Credit, the Borrower hereby represents
and warrants to each Agent, the Issuing Lender and each Lender that:
3.1 Financial
Condition. (i) The unaudited pro forma consolidated balance sheet of the Borrower
and its consolidated Subsidiaries as at June 30, 2014 and related pro forma consolidated statements of income and cash flows of the
Borrower and its consolidated Subsidiaries (collectively, the “Pro Forma Financial Statements”), copies of which have
heretofore been furnished to each Lender, have been prepared giving effect (as if such events had occurred on such date) to (i) the
Loans and other extensions of credit to be made hereunder on the Closing Date and the use of proceeds thereof and (ii) the payment
of fees and expenses in connection with the foregoing. The Pro Forma Financial Statements have been prepared based on the information
available to the Borrower as of the date of delivery thereof, and presents fairly in all material respects on a pro forma basis the estimated
financial condition of Borrower and its consolidated Subsidiaries as at June 30, 2014 (in the case of such balance sheet) or at the
beginning of such period (in the case of such other financial statements), assuming that the events specified in the preceding sentence
had actually occurred at such date.
(b) The
audited consolidated balance sheets of the Borrower as at December 31, 2011, December 29, 2012 and December 28, 2013, and
the related consolidated statements of income and of cash flows for the fiscal years ended on such dates, reported on by and accompanied
by an unqualified report from KPMG LLP, present fairly in all material respects the consolidated financial condition of the Borrower as
at such date, and the consolidated results of its operations and its consolidated cash flows for the respective fiscal years then ended.
The unaudited consolidated balance sheet of the Borrower as at May 1, 2014, and the related unaudited consolidated statements of
income and cash flows for the 17-week period ended on such date, present fairly in all material respects the consolidated financial condition
of Borrower as at such date, and the consolidated results of its operations and its consolidated cash flows for the 17-week period then
ended (subject to normal year-end audit adjustments). All such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned
firm of accountants and disclosed therein and subject, in the case of any such unaudited financial statements to normal year-end audit
adjustments and the absence of notes). The Borrower and its Subsidiaries do not have any material Guarantee Obligations, contingent liabilities
and liabilities for taxes, or any long-term leases or unusual forward or long-term commitments, including, without limitation, any interest
rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that are not reflected in the most
recent financial statements referred to in this paragraph. During the period from March 31, 2014 to and including the FourthEighth
Amendment Effective Date there has been no Disposition by the Borrower of any material part of its business or Property (other than any
Disposition permitted by Section 6.5).
3.2 No
Change. Since December 28, 2013, there has not been any event, change, condition or development
that has had or could reasonably be expected to have a Material Adverse Effect.
3.3 Corporate
Existence; Compliance with Law. Each of the Borrower and its Subsidiaries (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has the corporate or business trust
power and authority, and the legal right, to own and operate its Property, to lease the Property it operates as lessee and to conduct
the business in which it is currently engaged, (c) is duly qualified as a foreign corporation or business trust and in good standing
under the laws of each jurisdiction where its ownership, lease or operation of Property or the conduct of its business requires such qualification
and (d) is in compliance with all Requirements of Law except, in the case of each of the foregoing clauses (c) and (d), to the
extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
3.4 Corporate
Power; Authorization; Enforceable Obligations. Each Loan Party has the corporate or business
trust power and authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a party and, in the case
of the Borrower, to consummate the Transactions and to borrow and obtain other extensions of credit hereunder. Each Loan Party has taken
all necessary corporate action or other organizational action to authorize the execution, delivery and performance of the Loan Documents
to which it is a party and, in the case of the Borrower, to authorize the borrowings and other extensions of credit on the terms and conditions
of this Agreement and to grant the security interests and Liens as provided in the Loan Documents, and, in the case of each Subsidiary
Guarantor, to guarantee the Obligations of the Borrower on the terms and conditions of the applicable Loan Documents and to grant the
security interests and Liens as provided in the Loan Documents. No consent or authorization of, filing with, notice to or other act by
or in respect of, any Governmental Authority or any other Person is required in connection with the consummation of the Transactions,
the borrowings and other extensions of credit hereunder or with the execution, delivery, performance, validity or enforceability of this
Agreement or any of the other Loan Documents, except (i) consents, authorizations, filings and notices described in Schedule 3.4,
which consents, authorizations, filings and notices have been obtained or made and are in full force and effect, (ii) the filings
referred to in Section 3.19 and (iii) consents, notices and filings which the failure to make or obtain could not reasonably
be expected to have a Material Adverse Effect. Each Loan Document has been duly executed and delivered on behalf of each Loan Party party
thereto. This Agreement constitutes, and each other Loan Document upon execution will constitute, a legal, valid and binding obligation
of each Loan Party party thereto, enforceable against each such Loan Party in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
3.5 No
Legal Bar. The execution, delivery and performance of this Agreement and the other Loan Documents,
the consummation of the Transactions, the issuance of Letters of Credit, borrowings hereunder and the use of the proceeds thereof will
not violate any Requirement of Law or any Contractual Obligation of the Borrower or any of its Subsidiaries and will not result in, or
require, the creation or imposition of any Lien on any of their respective properties or revenues pursuant to any Requirement of Law or
any such Contractual Obligation (other than the Liens created by the Security Documents). No Requirement of Law or Contractual Obligation
applicable on the Restatement to the Borrower or any of its Subsidiaries could reasonably be expected to have a Material Adverse Effect.
3.6 No
Material Litigation. No litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge the Borrower, threatened by or against the Borrower or any of its Subsidiaries
or against any of their respective properties or revenues (a) with respect to this Agreement or any other Loan Document or the Transactions
contemplated hereby or thereby, or (b) that could reasonably be expected to have a Material Adverse Effect.
3.7 No
Default. Neither the Borrower nor any of its Subsidiaries is in default under or with respect
to any of its Contractual Obligations in any respect that could reasonably be expected to have a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
3.8 Ownership
of Property; Liens. Each of the Borrower and each of its Subsidiaries has title in fee simple
to, or a valid leasehold interest in, all its real property, subject only to Liens and other matters permitted by Section 6.3, and
good title to, or a valid leasehold or other property interest in, all its other Property, and none of such Property is subject to any
Lien except as permitted by Section 6.3.
3.9 Intellectual
Property. To the knowledge of the Borrower, the Borrower and each of its Subsidiaries owns, or
is licensed to use, all Intellectual Property necessary and material for the conduct of its business as currently conducted. To the knowledge
of the Borrower, except as indicated on Schedule 3.9, no material claim has been asserted and is pending by any Person alleging that the
use of any Intellectual Property by the Borrower and its Subsidiaries infringes on the intellectual property rights of any Person in any
material respect nor does the Borrower know of any valid basis for any such claim.
3.10 Taxes.
Each of the Borrower and each of its Subsidiaries has timely filed or caused to be filed all Federal, state and other material tax returns
that are required to be filed (all such Tax returns being true and correct in all material respects) and has timely paid all Taxes payable,
collectible or remittable by it and any assessments made against it or any of its Property and all other material Taxes, fees or other
charges imposed on it or any of its Property by any Governmental Authority (other than any the amount or validity of which are either
currently being contested in good faith by appropriate proceedings or with respect to which reserves in conformity with GAAP have been
provided on the books of the Borrower or its Subsidiaries, as the case may be); and as of the Restatement Effective Date no Tax Lien has
been filed, and, to the knowledge of the Borrower, no claim is being asserted, with respect to any such Tax, fee or other charge.
3.11 Federal
Regulations. No part of the proceeds of any Loans and no Letters of Credit will be used for “purchasing”
or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U
as now and from time to time hereafter in effect or for any purpose that violates the provisions of the Regulations of the Board. If requested
by any Lender, the Issuing Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent, the Issuing Lender
and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1 referred
to in Regulation U.
3.12 Labor
Matters. There are no strikes or other labor disputes against the Borrower or any of its Subsidiaries
pending or, to the knowledge of the Borrower, threatened that (individually or in the aggregate) could reasonably be expected to have
a Material Adverse Effect. Hours worked by and payment made to employees of the Borrower and its Subsidiaries have not been in violation
of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters that (individually or in the aggregate)
could reasonably be expected to have a Material Adverse Effect. All payments due from the Borrower or any of its Subsidiaries on account
of employee health and welfare insurance that (individually or in the aggregate) could reasonably be expected to have a Material Adverse
Effect if not paid have been paid or accrued as a liability on the books of the Borrower or the relevant Subsidiary.
3.13 ERISA.
Each of the Borrower and its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the
Code and the regulations and published interpretations thereunder. No material liability to the PBGC (other than required premium payments),
or, except in the ordinary course, any Plan or any trust established thereunder, has been or is expected to be incurred by the Borrower
or any of its ERISA Affiliates with respect to any Plan. No ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events, resulted or could reasonably be expected to result, in material liability of the Borrower or
any of its ERISA Affiliates. The present value of all benefit liabilities under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the last annual valuation date applicable thereto, exceed by
more than $10,000,000 the fair market value of the assets of such Plan. None of the Borrower nor any Subsidiary has any material liability
with respect to any Foreign Pension Plan.
3.14 Investment
Company Act; Other Regulations. No Loan Party is an “investment company”, or a company
“controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than Regulation X of the Board) which limits its ability to
incur Indebtedness.
3.15 Subsidiaries.
(ii) The Subsidiaries listed on Schedule 3.15 constitute all the Subsidiaries of the Borrower as of the Restatement Effective Date.
Schedule 3.15 sets forth as of the Restatement Effective Date the name and jurisdiction of incorporation of each Subsidiary and, as to
each such Subsidiary, the percentage of each class of Capital Stock owned by any Loan Party.
(b) As
of the Restatement Effective Date, no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other
than stock options, equity compensation awards granted to employees or directors and directors’ qualifying shares) of any nature
relating to any Capital Stock of the Borrower or any Subsidiary.
3.16 Use
of Proceeds. The proceeds of the Tranche B-4 Term Loans shall be used by the Borrower on the
Third Amendment Effective Date to refinance the Existing Senior Notes Due 2021, pay certain outstanding Revolving Credit Loans under this
Agreement and to pay certain fees and expenses in connection with the foregoing. The proceeds of the Fourth Amendment Incremental Term
Loans shall be used by the Borrower on the Fourth Amendment Effective Date to pay certain outstanding Revolving Credit Loans under this
Agreement and to pay certain fees and expenses in connection with the foregoing. The proceeds of the Tranche
B-5 Term Loans shall be used by the Borrower on the Eighth Amendment Effective Date to refinance the Tranche B-4 Term Loans and to pay
certain fees and expenses in connection with the foregoing. The proceeds of the Revolving Credit Loans and the Incremental
Revolving Loans shall be used by the Borrower solely for general corporate purposes (including Permitted Acquisitions) and as working
capital. The Letters of Credit shall be used by the Borrower solely for general corporate purposes. The proceeds of theany
Incremental Term Loans shall be used by the Borrower solely for general corporate purposes (including Permitted Acquisitions).
3.17 Environmental
Matters. Other than exceptions to any of the following that could not, individually and in the
aggregate, reasonably be expected to have a Material Adverse Effect:
(a) the
Borrower and its Subsidiaries: (i) are, and within the period of all applicable statutes of limitation have been, in compliance with
all applicable Environmental Laws; (ii) hold all Environmental Permits (each of which is in full force and effect) required for any
of their current operations or for any property owned, leased, or otherwise operated by any of them; (iii) are, and within the period
of all applicable statutes of limitation have been, in compliance with all of their Environmental Permits; and (iv) reasonably believe
that: each of their Environmental Permits will be timely renewed and complied with; any additional Environmental Permits that may be required
of any of them will be timely obtained and complied with; and compliance with any Environmental Law that is or is expected to become applicable
to any of them will be timely attained and maintained.
(b) Materials
of Environmental Concern are not present at, on, under, in, or about any real property now or, to the knowledge of the Borrower and its
Subsidiaries, formerly owned, leased or operated by the Borrower or any of its Subsidiaries, or, to the knowledge of the Borrower and
its Subsidiaries, at any other location (including, without limitation, any location to which Materials of Environmental Concern have
been sent for re-use or recycling or for treatment, storage, or disposal) which could reasonably be expected to (i) give rise to
liability of the Borrower or any of its Subsidiaries under any applicable Environmental Law or otherwise result in costs to the Borrower
or any of its Subsidiaries, or (ii) interfere with the Borrower’s or any of its Subsidiaries’ continued operations.
(c) There
is no judicial, administrative, or arbitral proceeding (including any notice of violation or alleged violation) under or relating to any
Environmental Law to which the Borrower or any of its Subsidiaries is, or to the knowledge of the Borrower or any of its Subsidiaries
will be, named as a party that is pending or, to the knowledge of the Borrower or any of its Subsidiaries, threatened.
(d) Neither
the Borrower nor any of its Subsidiaries has received any written request for information, or been notified that it is a potentially responsible
party under or relating to the federal Comprehensive Environmental Response, Compensation, and Liability Act or any similar Environmental
Law, or with respect to any Materials of Environmental Concern.
(e) Neither
the Borrower nor any of its Subsidiaries has entered into or agreed to any consent decree, order, or settlement or other agreement, or
is subject to any judgment, decree, or order or other agreement, in any judicial, administrative, arbitral, or other forum for dispute
resolution, relating to compliance with or liability under any Environmental Law.
(f) Neither
the Borrower nor any of its Subsidiaries has assumed or retained, by contract, any liabilities of any kind, fixed or contingent, known
or unknown, under any Environmental Law or with respect to any Material of Environmental Concern.
3.18 Accuracy
of Information, etc. No written statement or written information (other than projections,
other forward-looking information, information of a general economic or general industry nature and pro forma financial information) contained
in this Agreement, any other Loan Document, the Confidential Information Memorandum or any other document, certificate or written statement
furnished to the Agents, the Arrangers, the Issuing Lender or the Lenders or any of them, by or on behalf of any Loan Party for use in
connection with the transactions contemplated by or pursuant to this Agreement or the other Loan Documents, taken as a whole, contained
as of the date such statement, information, document or certificate was so furnished, any untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances
under which such statements were made. The projections, other forward-looking information with respect to the Borrower and its Subsidiaries
and the pro forma financial information contained in the materials referenced above are based upon good faith estimates and assumptions
believed by management of the Borrower to be reasonable at the time made, it being recognized by the Lenders that such projections and
pro forma financial information as it relates to future events are not to be viewed as fact and that actual results during the period
or periods covered by such projections, other forward-looking information and pro forma financial information may differ from the projected
and pro forma results set forth therein by a material amount.
3.19 Security
Documents. The Guarantee and Collateral Agreement is effective to create in favor of the Administrative
Agent, for the benefit of the Lenders, a legal, valid and enforceable security interest in the Collateral described therein and proceeds
thereof. In the case of the Pledged Stock described in the Guarantee and Collateral Agreement, when any stock certificates representing
such Pledged Stock are delivered to the Administrative Agent together with stock powers endorsed to the Collateral Agent or in blank,
and in the case of the other Collateral described in the Guarantee and Collateral Agreement, when financing statements in appropriate
form are filed in the offices specified on Schedule 3.19(a)-1 as of the Closing Date, (which financing statements have been duly completed
and delivered to the Collateral Agent) and such other filings as are specified on Schedule 3 to the Guarantee and Collateral Agreement
(all of which filings have been duly completed), the Guarantee and Collateral Agreement shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the
Secured Obligations (as defined in the Guarantee and Collateral Agreement), in each case prior and superior in right to any other Person
(except, in the case of Collateral other than Pledged Stock, Liens permitted by Section 6.3). Schedule 3.19(a)-2 lists each UCC Financing
Statement (other than any naming the Collateral Agent as secured party) that (i) names any Loan Party as debtor and (ii) will
remain on file after the Closing Date.
3.20 Solvency.
The Borrower and its Subsidiaries, on a consolidated basis, are, and immediately after the consummation of the Acquisition and the other
Transactions to occur on the Restatement Funding Date and immediately following the making of each Loan or other extension of credit hereunder
and after giving effect to the application of the proceeds of each Loan or other extension of credit hereunder, will be and will continue
to be, Solvent.
3.21 Anti-Terrorism
Laws; Sanctions; Anti-Corruption Laws.
(a) To
the extent applicable, each Loan Party is in compliance, in all material respects, with the (i) Trading with the Enemy Act, and each
of the Anti-Terrorism Laws, (ii) the Anti-Corruption Laws and (iii) applicable Sanctions.
(b) None
of the Loan Parties nor any of their respective Subsidiaries nor, to the knowledge of the Borrower, any director, officer, agent, employee
or Affiliate of any of the Loan Parties or any of their respective Subsidiaries, is a Sanctioned Person that is, or is owned or controlled
by Sanctioned Persons or are located, organized or resident in a Sanctioned Country. The Loan Parties will not directly or indirectly
use the proceeds of the Loans or the Letters of Credit or otherwise make available such proceeds to (i) any Sanctioned Person or
whose government is a Sanctioned Country, or (ii) in any other manner that would result in a violation of Sanctions by any Person
(including any person participating in the Loans, whether as underwriter, advisor, investor, or otherwise).
(c) No
part of the proceeds of the Loans will be used by the Borrower or any of its Subsidiaries, directly or indirectly, for any payments to
any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else
acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the Anti-Corruption
Laws.
3.22 EEA
Financial Institutions. The Borrower is not an EEA Financial Institution.
Section 4. CONDITIONS
PRECEDENT
4.1 Conditions
to Restatement Funding Date. The agreement of each Lender to make its extension of credit on
the Restatement Funding Date is subject to the satisfaction, prior to or concurrently with the making of any extensions of credit on the
Restatement Funding Date, of the following conditions precedent:
(a) Loan
Documents. The Administrative Agent shall have received (i) the Amendment Agreement, executed and delivered by a duly authorized
officer of the Borrower, (ii) this Agreement, executed and delivered by a duly authorized officer of the Borrower, (iii) a Reaffirmation
Agreement, executed and delivered by a duly authorized officer of the Borrower and each Subsidiary Guarantor and (v) each Note signed
by the Borrower (to the extent requested prior to the Closing Date).
(b) Financial
Statements and Pro Forma Financial Statements. The Administrative Agent shall have received (i) unaudited income statements for
the Acquired Business for each of Seller’s fiscal years ended May 31, 2015, May 25, 2014 and May 26, 2013 (each in
local currency), (ii) an unaudited statement of Inventory owned by Seller or any of the Seller Parties (as defined in the Acquisition
Agreement) that is used or held for use exclusively in the operation or conduct of the Acquired Business at May 31, 2015, (iii) a
pro forma consolidated balance sheet and related pro forma consolidated statements of income and cash flows of the Borrower as of and
for the 12-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements
have been delivered by Borrower pursuant to Section 5.1, prepared after giving effect to the Transactions and any other transactions
for which pro forma effect may be given under Section 1.3 as if the Transactions and other transactions had occurred as of such date
(in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), (iv) at
least 20 calendar days prior to the Restatement Funding Date, an unaudited Statement of Inventory and an unaudited Statement of Profit
Before Overheads for any interim period or periods of the Acquired Business ended after the date of the most recent unaudited Statement
of Inventory and unaudited Statement of Profit Before Overheads; which, in each case, shall be in a form consistent with the forecasts
previously provided to the Administrative Agent and (v) with respect to the Borrower, each of the financial statements required to
be furnished to the Administrative Agent under Section 5.1.
(c) No
Indebtedness. After giving effect to the Transactions to occur on the Restatement Funding Date, the Borrower and its Subsidiaries
shall have outstanding no Indebtedness or preferred Capital Stock other than (A) the Loans and other extensions of credit hereunder,
(B) the Senior Notes, and (C) the other Indebtedness permitted to be incurred pursuant to Section 6.2.
(d) Representations
and Warranties. The (i) Specified Acquisition Agreement Representations shall be true and correct as required by the terms of
the definition thereof and (ii) the Specified Representations shall be true and correct in all material respects; provided that
in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall
be true and correct in all material respects as of the respective date or for the respective period, as the case may be.
(e) Fees
and Expenses. The Arrangers and the Agents shall have received all fees and other compensation required to be paid (including pursuant
to any engagement or fee letters entered into between the Borrower and any Arranger or Agent on or prior to the Restatement Funding Date),
and all costs and expenses payable hereunder or under any other Loan Document for which invoices have been presented (including reasonable
fees, disbursements and other charges of counsel to the Arrangers and the Agents), on or before the Restatement Funding Date.
(f) Lien
Searches. The Administrative Agent shall have received the results of a recent lien search in each relevant jurisdiction with respect
to the Borrower and its Subsidiaries, and such search shall reveal no liens on any of the assets of the Borrower or its Subsidiaries
except for liens permitted by Section 6.3 or liens to be discharged on or prior to the Closing Date pursuant to documentation satisfactory
to the Administrative Agent.
(g) Restatement
Funding Date Certificate. The Administrative Agent and the Arrangers shall have received a certificate of each Loan Party, dated
the Restatement Funding Date, substantially in the form of Exhibit C, with appropriate insertions and attachments.
(h) Legal
Opinion. The Administrative Agent and the Arrangers shall have received the legal opinion of Dechert LLP, counsel to the Borrower
and its Subsidiaries, substantially in the form of Exhibit E.
(i) Filings,
Registrations and Recordings. Each document (including, without limitation, any Uniform Commercial Code financing statement) required
by the Security Documents or under law or reasonably requested by the Administrative Agent or the Collateral Agent to be filed, registered
or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral
described therein, prior and superior in right to any other Person (other than with respect to Liens and other matters expressly permitted
by Section 6.3), shall be in proper form for filing, registration or recordation.
(j) Solvency.
The Administrative Agent and the Arrangers shall have received a certificate executed by the chief financial officer of the Borrower,
in the form attached as Exhibit H hereto, which shall document the solvency of the Borrower and its Subsidiaries, on a consolidated
basis, after giving effect to the Transactions contemplated hereby.
(k) Pledged
Stock; Stock Powers. The Collateral Agent shall have received the certificates representing the shares of Capital Stock pledged pursuant
to the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof.
(l) Transactions.
Substantially concurrently with the initial funding of the Tranche B Term Loans, the Acquisition shall have been consummated in accordance
with the terms of the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is
materially adverse to the Lenders, the Arrangers, the Co-Syndication Agents or the Co-Documentation Agents without the prior written
consent of the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents (such consent not to be unreasonably withheld, conditioned
or delayed) (it being understood and agreed that any decrease in the purchase price in excess of 10% shall be deemed to be a modification
which is materially adverse to the Lenders and the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents)).
(m) Closing
Date Material Adverse Effect. Except as otherwise contemplated by the Acquisition Agreement, since the date of the Acquisition Agreement,
there has been no development, change, event or occurrence that, individually or in the aggregate, has had, or is reasonably likely to
have, an Acquired Business Material Adverse Effect.
(n) USA
PATRIOT Act. No later than five (5) Business Days in advance of the Restatement Funding Date (to the extent requested at least
ten (10) days prior to the Restatement Funding Date), the Administrative Agent shall have received, on behalf of the Arrangers and
Lenders, all documentation and other information required by regulatory authorities under applicable “know your customer”
and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act.
(o) Agency
Fee Letter. The Administrative Agent and the Borrower shall have entered into a fee letter in connection with the fees to be paid
to the Administrative Agent in connection with such capacity.
4.2 Conditions
to Each Extension of Credit. The agreement of each Lender to make any extension of credit requested to be made by it on any date
(including, without limitation, its initial extension of credit) is subject to the satisfaction of the following conditions precedent:
(a) Representations
and Warranties. Each of the representations and warranties made by any Loan Party in or pursuant to this Agreement or any other Loan
Document shall be true and correct in all material respects (except to the extent any such representation and warranty itself is qualified
by “materiality”, “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct
in all respects) on and as of such date as if made on and as of such date (unless stated to relate to an earlier date, in which case
such representations and warranties shall be true and correct in all material respects (except to the extent any such representation
and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, in which case,
it shall have been true and correct in all respects) as of such earlier date); provided that, if such extension of credit is an
Incremental Term Borrowing or Incremental Revolving Loan used to finance a Permitted Acquisition, then the only representations and warranties
that will be required to be true and correct in all material respects as a condition to funding on the date of the applicable Incremental
Term Borrowing or applicable Incremental Revolving Loan shall be (x) the Specified Representations and (y) such of the representations
and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition
agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the
right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such
acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement.
(b) No
Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the making of
the extensions of credit requested to be made on such date; provided that if the Lenders providing an Incremental Term Loan or
Incremental Revolving Loan to finance a Permitted Acquisition have agreed to a “funds certain” provision, then no Default
or Event of Default shall have occurred and be continuing under Section 7(a) or (f).
(c) Borrowing
Request. The Administrative Agent shall have received a notice of borrowing as and when required by Sections 2.2 and/or Section 2.5,
as applicable, which notice shall (i) confirm compliance with clauses (a) and (b) of this Section 4.2 and (ii) set
forth all information required by Section 2.2 and/or Section 2.5, as applicable.
Each borrowing by and issuance
of a Letter of Credit on behalf of the Borrower hereunder shall constitute a representation and warranty by the Borrower as of the date
of such extension of credit that the conditions contained in this Section 4.2 have been satisfied.
Section 5. AFFIRMATIVE
COVENANTS
The Borrower hereby agrees
that, so long as the Revolving Credit Commitments remain in effect, any Letter of Credit remains outstanding or any Loan or other amount
is owing to any Lender, the Issuing Lender or any Agent hereunder, the Borrower shall and shall cause each of its Subsidiaries to:
5.1 Financial
Statements. Furnish to the Administrative Agent (who will furnish such information to the Lenders):
(a) as
soon as available, but in any event within 90 days (or such earlier date as required by the SEC) after the end of each fiscal year of
the Borrower, a copy of the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such
year and the related audited consolidated statements of income and of cash flows for such year, setting forth in each case in comparative
form the figures as of the end of the previous year, reported on without a “going concern” or like qualification or exception,
or qualification arising out of the scope of the audit, by KPMG, L.L.P. or other independent certified public accountants of nationally
recognized standing; and
(b) as
soon as available, but in any event not later than 45 days (or such earlier date as required by the SEC) after the end of each of the
first three quarterly periods of each fiscal year of the Borrower, the unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form the figures as of
the end of and for the corresponding period in the previous year, certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP applied consistently throughout the periods reflected therein
and with prior periods (except as approved by such accountants or officer, as the case may be, and disclosed therein).
5.2 Certificates;
Other Information. Furnish to the Administrative Agent and each Lender (other than any Excluded Lenders), or, in the case of clause
(e), to the relevant Lender:
(a) concurrently
with the delivery of any financial statements pursuant to Section 5.1, (i) a certificate of a Responsible Officer stating that,
to such Responsible Officer’s knowledge, each Loan Party during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this Agreement and the other Loan Documents to which it is a party to be
observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and (ii) in the case of quarterly or annual financial statements, (A) a Compliance
Certificate containing all information and calculations necessary for determining compliance by the Borrower and its Subsidiaries with
the provisions of this Agreement referred to therein as of the last day of the Fiscal Quarter or fiscal year of the Borrower, as the
case may be, which Compliance Certificate shall, in connection with each delivery of financial statements pursuant to Section 5.1(a),
(y) in the case of annual financial statements, show in reasonable detail the calculations used in determining Excess Cash Flow
for the most recently completed fiscal year of the Borrower and (z) if the Available Amount was applied during such period, show
the Available Amount as of the end of such period, and (B) to the extent not previously disclosed to the Administrative Agent, a
listing of any material Intellectual Property acquired by any Loan Party since the date of the most recent list delivered pursuant to
this clause (B);
(b) as
soon as available, and in any event no later than 90 days after the end of each fiscal year of the Borrower, a detailed consolidated
budget for the following fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the
end of the following fiscal year, and the related consolidated statements of projected cash flow, projected changes in financial position
and projected income) (collectively, the “Projections”);
(c) within
five days after the same are sent, copies of all financial statements and reports that the Borrower sends to the holders of any class
of its debt securities or public equity securities and, within five days after the same are filed, copies of all financial statements
and reports that the Borrower may make to, or file with, the SEC;
(d) as
soon as possible and in any event within five days of obtaining knowledge thereof: (i) a description of any development, event,
or condition that, individually or in the aggregate with other developments, events or conditions, could reasonably be expected to result
in the payment by the Borrower and its Subsidiaries, in the aggregate, of a Material Environmental Amount; and (ii) any notice that
any Governmental Authority may deny any application for an Environmental Permit sought by, or revoke or refuse to renew any Environmental
Permit held by, any Loan Party which could reasonably be expected to have a Material Adverse Effect; and
(e) promptly,
such additional financial and other information as any Lender (other than any Excluded Lender) may from time to time reasonably request.
5.3 Payment
of Obligations. Pay and discharge promptly when due all material Taxes, assessments and governmental charges or levies imposed upon
it or in respect of its income, profits or property, before the same shall become delinquent or in default, and pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may be, all other material obligations of whatever nature,
except, in each case, where (a) the amount or validity thereof is currently being contested in good faith by appropriate proceedings,
(b) such contest effectively suspends the enforcement of any Lien on the Borrower’s Property securing such obligations and
(c) reserves in conformity with GAAP with respect thereto have been provided on the books of the Borrower or its Subsidiaries, as
the case may be.
5.4 Conduct
of Business and Maintenance of Existence, etc. (a) (i) Preserve, renew and keep in full force and effect
its corporate existence and (ii) take all reasonable action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of its business, except, in each case, as otherwise permitted by Section 6.4 and except, in the case of clause
(ii) above, to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (b) comply
with all Contractual Obligations and Requirements of Law except to the extent that failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.5 Maintenance
of Property; Insurance. (a) Keep all Property and systems useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted and (b) maintain with financially sound and reputable insurance companies insurance on all its Property
in at least such amounts and against at least such risks (but including in any event public liability, product liability and business
interruption) as are usually insured against in the same general area by companies engaged in the same or a similar business.
5.6 Inspection
of Property; Books and Records; Discussions. (a) Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its business and activities
and (b) permit representatives of any Agent or any Lender accompanying any Agent upon reasonable notice to visit and inspect any
of its properties and examine and make abstracts from any of its books and records at any reasonable time during normal business hours
and upon reasonable advance notice and as often as may reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Borrower and its Subsidiaries with officers and employees of the Borrower and its Subsidiaries and
with its independent certified public accountants (with reasonable notice to the chief financial officer of the Borrower (provided
that the Borrower or such Subsidiaries may, at their option, have one or more employees or representatives present at any discussion
with any such accountants)); provided that, absent the existence of an Event of Default, inspections pursuant to this Section 5.6
shall be limited to one time per fiscal year.
5.7 Notices.
Promptly, and in any event within five Business Days of obtaining knowledge thereof, give notice to each Agent and each Lender of:
(a) the
occurrence of any Default or Event of Default;
(b) any
(i) default or event of default under any Contractual Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Borrower or any of its Subsidiaries and any Governmental Authority
that, in either case, could reasonably be expected to have a Material Adverse Effect;
(c) any
litigation or proceeding affecting the Borrower or any of its Subsidiaries in which the amount involved is $10,000,000 or more and not
covered by insurance or in which injunctive or similar relief is sought;
(d) the
occurrence of any ERISA Event or Foreign Benefit Event that, alone or together with any other ERISA Events or Foreign Benefit Events
that have occurred, resulted or could reasonably be expected to result, in liability of the Borrower and the Subsidiaries in an aggregate
amount exceeding $10,000,000;
(e) any
amendment or other modification of any of the documents described in Section 6.9(b) or (c); and
(f) any
development or event that has had or could reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by
a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the Borrower
or the relevant Subsidiary proposes to take with respect thereto.
5.8 Environmental
Laws. (i) Comply in all material respects with, and ensure compliance in all material respects by all tenants and subtenants,
if any, with, all applicable Environmental Laws, and obtain and comply in all material respects with and maintain, and ensure that all
tenants and subtenants obtain and comply in all material respects with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws.
(b) Conduct
and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental
Laws and promptly comply in all material respects with all lawful orders and directives of all Governmental Authorities regarding Environmental
Laws, or contest such orders and directives by appropriate legal means.
5.9 Additional
Collateral, etc. (i) With respect to any Property acquired after the Closing Date by the Borrower or any of its Subsidiaries
(other than (v) any real property (or interest therein), (w) any Intellectual Property to the extent creation of a security
interest therein would be contractually prohibited (other than to the extent that any such prohibition would be rendered ineffective
pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code of any relevant jurisdiction or any other applicable
law or principles of equity), (x) any Property described in paragraph (b) of this Section, (y) any Property subject to
a Lien expressly permitted by Section 6.3(g) and (z) Property acquired by a Foreign Subsidiary) as to which the Collateral
Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative
Agent and the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative
Agent or the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties,
a security interest in such Property and (ii) take all actions necessary or advisable to grant to the Collateral Agent, for the
benefit of the Secured Parties, a perfected first priority security interest in such Property (subject to Liens permitted by Section 6.3),
including without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by
the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent or the Collateral Agent.
(b) With
respect to any new Subsidiary of the Borrower (other than a Foreign Subsidiary or a Foreign Subsidiary Holding Company) created or acquired
after the Closing Date (which, for the purposes of this paragraph, shall include any existing Subsidiary that ceases to be a Foreign
Subsidiary or a Foreign Subsidiary Holding Company), by the Borrower or any of its Subsidiaries, promptly (i) execute and deliver
to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Administrative
Agent or the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties,
a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by the Borrower or any of its
Subsidiaries, (ii) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause
such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and (B) to take such actions reasonably
necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security
interest in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary (subject to Liens
and other matters permitted by Section 6.3 and excluding real property and any interests therein, and Intellectual Property to the
extent creation of a security interest therein would be contractually prohibited), including, without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or
as may be requested by the Administrative Agent or the Collateral Agent, and (iv) if reasonably requested by the Administrative
Agent or the Collateral Agent, deliver to the Administrative Agent and the Collateral Agent legal opinions covering matters consistent
with those covered by the opinions delivered by Dechert LLP or the applicable local counsel, as the case may be, on the Closing Date
relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to
the Administrative Agent and the Collateral Agent.
(c) With
respect to any new Foreign Subsidiary and Foreign Subsidiary Holding Company created or acquired after the Closing Date by the Borrower
or any of its Domestic Subsidiaries, promptly (i) execute and deliver to the Administrative Agent and the Collateral Agent such
amendments to the Guarantee and Collateral Agreement as the Administrative Agent or the Collateral Agent deems necessary or advisable
in order to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the
Capital Stock of such new Subsidiary that is directly owned by the Borrower or any of its Domestic Subsidiaries (provided that
in no event shall more than 65% of the total outstanding voting Capital Stock of any such new Foreign Subsidiary or Foreign Subsidiary
Holding Company be required to be so pledged (it being understood and agreed that 100% of the total non-voting Capital Stock of any such
Subsidiary shall be required to be pledged)), (ii) deliver to the Collateral Agent the certificates representing such Capital Stock,
together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary,
as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent or the Collateral Agent,
desirable to perfect the Lien of the Collateral Agent thereon, and (iii) if requested by the Administrative Agent or the Collateral
Agent, deliver to the Administrative Agent and the Collateral Agent legal opinions relating to the matters described above, which opinions
shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent and the Collateral Agent.
(d) Notwithstanding
the foregoing, the requirements of this Section 5.9 shall not apply to, and the Collateral shall exclude, those assets as to which
the Collateral Agent reasonably determines that the costs (time, expense or otherwise) of obtaining a security interest in or Lien upon
such assets are excessive in relation to the benefits to the Secured Parties of the security afforded thereby.
5.10 Further
Assurances. From time to time execute and deliver, or cause to be executed and delivered, such additional instruments, certificates
or documents, and take all such actions, as the Administrative Agent or the Collateral Agent may reasonably request, for the purposes
of implementing or effectuating the provisions of this Agreement and the other Loan Documents, or of more fully perfecting or renewing
the rights of the Agents, the Issuing Lender and the Lenders with respect to the Collateral (or with respect to any additions thereto
or replacements or proceeds thereof or with respect to any other property or assets hereafter acquired by the Borrower or any Subsidiary
which may be deemed to be part of the Collateral) pursuant hereto or thereto. Upon the exercise by any Agent, the Issuing Lender or any
Lender of any power, right, privilege or remedy pursuant to this Agreement or the other Loan Documents which requires any consent, approval,
recording, qualification or authorization of any Governmental Authority, the Borrower will execute and deliver, or will cause the execution
and delivery of, all applications, certifications, instruments and other documents and papers that such Agent, the Issuing Lender or
such Lender may be required to obtain from the Borrower or any of its Subsidiaries for such governmental consent, approval, recording,
qualification or authorization.
5.11 Ratings.
Use commercially reasonable efforts to (a) cause the Facilities to be continuously rated by S&P and Moody’s and (b) maintain
a corporate rating from S&P and a corporate family rating from Moody’s, in each case in respect of the Borrower.
5.12 Use
of Proceeds. Use the proceeds of the Loans and request the issuance of Letters of Credit only for the purposes specified in Section 3.16.
The Borrower will not request any extension of credit, and the Borrower shall 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 extension of credit hereunder (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 Sanctioned Country or (c) in any manner that would result in the violation
of any Sanctions applicable to any party hereto.
5.13 Beneficial
Ownership Regulation. Notify the Administrative Agent and each Lender if the Borrower ceases to fall within an express exclusion
to the definition of “legal entity customer” under the Beneficial Ownership Regulation. The Borrower will, promptly following
any request therefor, deliver information and documentation reasonably requested by the Administrative Agent or any Lender for purposes
of compliance with the Beneficial Ownership Regulation.
Section 6. NEGATIVE
COVENANTS
The Borrower hereby agrees
that, so long as the Revolving Credit Commitments remain in effect, any Letter of Credit remains outstanding or any Loan or other amount
is owing to any Lender, the Issuing Agent or any Agent hereunder, the Borrower shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly:
6.1 Financial
Condition Covenants.
(a) Consolidated
Leverage Ratio. Permit the Consolidated Leverage Ratio as at the last day of any Test Period below to exceed the following:
Test
Periods Ending
on or about |
Consolidated
Leverage
Ratio |
June 30,
2022 |
7.50
to 1.00 |
September 30,
2022 |
8.00
to 1.00 |
December 31,
2022 |
8.00
to 1.00 |
March 31,
2023 |
8.00
to 1.00 |
June 30,
2023 |
8.00
to 1.00 |
September 30,
2023 |
8.00
to 1.00 |
December 31,
2023 |
7.50
to 1.00 |
March 31,
2024 and thereafter |
7.00
to 1.00 |
(b) Consolidated
Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio as at the last day of any period of four consecutive Fiscal
Quarters ending with any Fiscal Quarter, commencing with the Fiscal Quarter ending on or around June 30, 2014, to be less than 1.75
to 1.00.
Notwithstanding the provisions
set forth in Section 9.1, the provisions of this Section 6.1 and the definitions of Consolidated Leverage Ratio
and Consolidated Interest Coverage Ratio (and, in each case, the component definitions therein) solely for purposes of this Section 6.1
may be amended, waived or otherwise modified solely with the written consent of the Majority Facility Lenders of the Revolving Credit
Facility.
6.2 Limitation
on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness
of any Loan Party pursuant to any Loan Document;
(b) Indebtedness
of (i) the Borrower to any Subsidiary, (ii) any Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) any
Subsidiary that is not a Subsidiary Guarantor to the Borrower or any Subsidiary Guarantor in an amount not to exceed the greater of $50,000,000
or 2.00% of Consolidated Total Assets outstanding at any one time, and (iv) any Subsidiary that is not a Subsidiary Guarantor to
any other Subsidiary that is not a Subsidiary Guarantor;
(c) Indebtedness
(including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 6.3(g); provided that the
aggregate principal amount of such Indebtedness, plus the aggregate principal amount of Indebtedness permitted by Section 6.2(h),
shall not at any time exceed the greater of $40,000,000 or
1.2% of Consolidated Total Assets outstanding at any one time;
(d) Indebtedness
outstanding on the Closing Date and listed on Schedule 6.2(d) and any refinancings, refundings, renewals or extensions thereof (without
any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof, except by an amount equal
to a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith);
(e) Guarantee
Obligations made in the ordinary course of business by (i) the Borrower or any of its Subsidiaries of obligations of the Borrower
or any Subsidiary Guarantor, (ii) the Borrower or any of its Subsidiaries of obligations of any Subsidiary that is not a Subsidiary
Guarantor in an amount not to exceed the greater of $50,000,000 or 2.00% of Consolidated Total Assets outstanding at any time and (iii) any
Subsidiary that is not a Subsidiary Guarantor of the obligations of any other Subsidiary that is not a Subsidiary Guarantor;
(f) (i)
Indebtedness of the Borrower in respect of the Senior Notes and the New Senior Notes, (ii) Guarantee Obligations of any Subsidiary
Guarantor in respect of such Indebtedness, (iii) Indebtedness of the Borrower that refinances the Senior Notes, the New Senior Notes
and Guarantee Obligations of any Subsidiary Guarantor in respect of such refinancing Indebtedness; provided that (A) the
maturity date of such refinancing Indebtedness shall be no earlier than six months after the Latest Maturity Date, (B) the terms
of such refinancing Indebtedness, taken as a whole, shall not be materially less favorable to the Borrower and the Subsidiary Guarantors
than the terms of the Senior Notes or the New Senior Notes and (C) the principal amount of such refinancing Indebtedness does not
exceed the principal amount of Senior Notes or New Senior Notes, as applicable, refinanced thereby except by an amount equal to a reasonable
premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith and (iv) Indebtedness of
the Borrower that refinances Indebtedness incurred in accordance with clause (iii) above and this clause (iv) and Guarantee
Obligations of any Subsidiary Guarantor in respect of such refinancing Indebtedness; provided that (A) the maturity date
of such refinancing Indebtedness shall be no earlier than six months after the maturity date of such Indebtedness incurred in accordance
with clause (iii) above, (B) the terms of such refinancing Indebtedness, taken as a whole, shall not be materially less favorable
to the Borrower and the Subsidiary Guarantors than the terms of such Indebtedness incurred in accordance with clause (iii) above
and (C) the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness incurred
in accordance with clause (iii) above, except by an amount equal to a reasonable premium or other similar amount paid, and fees
and expenses reasonably incurred, in connection therewith;
(g) Indebtedness
of the Borrower or its Subsidiaries incurred to finance the acquisition (including, without limitation, by way of merger) of Capital
Stock of any Person engaged in, or assets used or useful in, a business permitted pursuant to Section 6.15; provided that
(i) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is 91 days
after the Latest Maturity Date at the time such Indebtedness is incurred, (ii) both immediately prior and after giving effect to
the incurrence thereof, no Default or Event of Default shall exist or would result therefrom, (iii) the Borrower shall be in pro
forma compliance with the financial covenants set forth in Section 6.1 after giving effect to such incurrence of Indebtedness
(determined on the assumption that such incurrence of Indebtedness had occurred on the first day of the relevant period measured by such
covenants), (iv) such Indebtedness is not also incurred by or guaranteed by any Subsidiaries of the Borrower other than the Subsidiary
Guarantors and is not incurred by or guaranteed by any other Person and (v) if such Indebtedness is secured, (A) such Indebtedness
is secured by the Collateral (or a portion thereof) on a second lien, subordinated basis to the Obligations and is not secured by any
property or assets of the Borrower or any of its Subsidiaries other than the Collateral (or a portion thereof), (B) the security
agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably
satisfactory to the Administrative Agent; provided that such differences are not more favorable to the investors in such secured
Indebtedness) and (C) an agent or representative acting on behalf of the holders of such Indebtedness shall have executed and delivered
the Second Lien Intercreditor Agreement or an accession thereto in form and substance satisfactory to the Administrative Agent;
(h) Indebtedness
secured by Liens permitted by Section 6.3(l); provided that the aggregate principal amount of such Indebtedness, plus the
aggregate principal amount of Indebtedness permitted by Section 6.2(c), shall not at any time exceed $40,000,000 outstanding;
(i) Indebtedness
of the Borrower or its Subsidiaries arising from the honoring by a bank or other financing institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds in the ordinary course of business;
(j) Indebtedness
of the Borrower or its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations,
in each case, incurred in connection with the disposition of any business, assets or a Subsidiary, other than the guaranties of Indebtedness
incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition;
provided, however, that: (i) such Indebtedness is not reflected on the balance sheet of the Borrower or any of its
Subsidiaries (contingent obligations referred to in a footnote to financing statements and not otherwise reflected on the balance sheet
will not be deemed to be reflected on such balance sheet for purposes of this clause (i)) and (ii) the maximum assumable liability
in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the Fair Market Value of
such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received
by the Borrower and its Subsidiaries in connection with such disposition;
(k) subordinated
Indebtedness of the Borrower or any of its Subsidiaries in an aggregate principal amount at any time outstanding not to exceed $5,000,000
issued to directors, officers or employees of the Borrower or any of its Subsidiaries in connection with the redemption or purchase of
Capital Stock that is not secured by any assets of the Borrower or any of its Subsidiaries, does not require cash payments prior to the
stated maturity of the Senior Notes or the New Senior Notes and contains subordination terms reasonably acceptable to the Administrative
Agent;
(l) Indebtedness
of the Borrower consisting of outstanding Permitted Foreign Currency Letters of Credit, the Dollar Equivalent of which shall not exceed
$20,000,000 in aggregate principal amount as of the most recent Calculation Date;
(m) Credit
Agreement Refinancing Indebtedness;
(n) other
Indebtedness, not included in clauses (a) through (m) above, not to exceed the greater of $50,000,000 or 2.00% of Consolidated
Total Assets in an aggregate principal amount (or accreted value, as applicable) at any time outstanding;
(o) Indebtedness
in respect of overdraft facilities, automatic clearinghouse arrangements, employee credit card programs, corporate cards and purchasing
cards, and other business cash management arrangements in the ordinary course of business, including Indebtedness arising under or in
connection with any Cash Management Agreement with a Cash Management Bank; and
(p) (i)
Indebtedness of the Borrower in an aggregate principal amount not to exceed an amount so
long as the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed
Fiscal Quarter for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after
giving effect to such Indebtedness and to any other event occurring after such period as to which pro forma recalculation is appropriate
as if such events had occurred as of the first day of such period, and assuming that (x) any incremental revolving commitments to
be incurred on such date are fully drawn and (y) without netting the cash proceeds of any such Indebtedness incurred on such date
(the “Incremental Equivalent Indebtedness”); provided that,
(A) if
such Incremental Equivalent Indebtedness is secured, such Incremental Equivalent Indebtedness is secured by the Collateral (or a portion
thereof) on a pari passu basis to the Obligations and is not secured by any property or assets of
the Borrower or any of its Subsidiaries other than the Collateral (or a portion thereof),
(B) such
Incremental Equivalent Indebtedness shall not be guaranteed by any person other than the Subsidiary Guarantors,
(C) the maturity
date of such Incremental Equivalent Indebtedness shall be no earlier than the Latest Maturity Date,
(D) such Incremental
Equivalent Indebtedness shall have a Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity
of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,
(E) such
Incremental Equivalent Indebtedness shall not receive mandatory prepayments in excess of its ratable share in accordance with Section 2.10(d),
(F) the other
terms and conditions of such secured Incremental Equivalent Indebtedness are on the whole substantially identical to, or not materially
more favorable to the investors providing such secured Incremental Equivalent Indebtedness, than those applicable to the Facilities (except
for (w) subject to clause (I) below, pricing, fees,
rate floors and prepayment or redemption premiums, which shall reflect market terms and conditions at the time of incurrence or issuance,
(x) covenants or other provisions applicable only to periods after the Latest Maturity Date that is in effect on the date such Incremental
Equivalent Indebtedness is issued, incurred or obtained or which are added for the benefit of the Lenders and (y) differences that
reflect the nature of such secured debt as fixed or floating rate securities),
(G) the security
agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably
satisfactory to the Administrative Agent and the Borrower; provided that such differences are not materially more favorable to
the investors in such secured Indebtedness),
(H) if
such Indebtedness is secured on a pari passu basis with the Obligations, an agent or representative acting on behalf of the holders of
such Incremental Equivalent Indebtedness shall have become party to an intercreditor agreement in form and substance satisfactory to
the Administrative Agent and the Borrower (a “Pari Passu Intercreditor Agreement”), and (I)
(I) if
such Indebtedness is incurred prior to the twenty four-month anniversary of the Eighth Amendment Effective Date, is in the form of term
loans that contain provision customarily applicable to Tranche B term loans and is secured on a pari passu basis with the Obligations,
such Indebtedness shall be subject to the MFN Provision,
(J) no
Default or Event of Default shall have occurred and be continuing at the time of incurrence of such Incremental Equivalent Indebtedness
or would result therefrom (provided that, if such extension of credit is used to finance a Permitted Acquisition, then no Default or
Event of Default shall have occurred and be continuing under Section 7(a) or (f)); and
(ii) Guarantee
Obligations of any Subsidiary Guarantor in respect of such Incremental Equivalent Indebtedness.;
and
(q) Indebtedness
of the Borrower or its Subsidiaries consisting of letters of credit incurred outside of this Agreement, which shall not at any time exceed
$15,000,000 at any time outstanding.
6.3 Limitation
on Liens. Create, incur, assume or suffer to exist any Lien upon any of its Property, whether now owned or hereafter acquired, except
for:
(a) Liens
for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in
conformity with GAAP has been made therefor;
(b) Liens
imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s
or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or that are being
contested in good faith by appropriate proceedings;
(c) Liens
(other than any Lien imposed by ERISA or any rule or regulation promulgated thereunder) incurred or deposits made in the ordinary
course of business in connection with workers’ compensation, unemployment insurance, and other types of social security;
(d) Liens
to secure the performance of statutory obligations, surety or appeal bonds, performance bonds, deposits to secure the performance of
bids, trade contracts, government contracts, warranty requirements, leases or licenses or other obligations of a like nature or incurred
in the ordinary course of business (including, without limitation, landlord Liens on leased real property);
(e) survey
exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection
with Indebtedness and that 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;
(f) Liens
in existence on the Closing Date listed on Schedule 6.3(f), securing Indebtedness permitted by Section 6.2(d), provided that
no such Lien shall at any time encumber any additional Property after the Closing Date and that the amount of Indebtedness secured thereby
shall not be increased (except by an amount equal to a reasonable premium or other similar amount paid, and fees and expenses reasonably
incurred, in connection therewith);
(g) Liens
securing Indebtedness of the Borrower or any other Subsidiary incurred pursuant to Section 6.2(c) to finance the acquisition
of fixed or capital assets, provided that (i) such Liens shall be created substantially simultaneously with the acquisition
of such fixed or capital assets, (ii) such Liens shall not at any time encumber any Property other than the Property financed by
such Indebtedness and (iii) the amount of Indebtedness secured thereby shall not be increased;
(h) Liens
created pursuant to the Security Documents;
(i) any
interest or title of a lessor under any lease entered into by the Borrower or any other Subsidiary in the ordinary course of its business
and covering only the assets so leased;
(j) judgment
liens securing judgments not constituting (or which would otherwise create) an Event of Default;
(k) licenses
of Intellectual Property in the ordinary course of business;
(l) liens
on fixed assets existing at the time such fixed assets are acquired in connection with a Permitted Acquisition and not created in contemplation
thereof;
(m) deposits
in an aggregate amount not to exceed $5,000,000 at any one time outstanding made in the ordinary course of business to secure liability
to insurance carriers;
(n) Liens
in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary
course of business and other similar Liens arising in the ordinary course of business;
(o) Liens
upon 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;
(p) leases
or subleases granted to third Persons not interfering with the ordinary course of business of the Borrower or any of its Subsidiaries;
(q) Liens
on assets of a Subsidiary of the Borrower that is not a Subsidiary Guarantor securing Indebtedness of that Subsidiary; provided
that such Indebtedness was permitted to be incurred by Section 6.2;
(r) Liens
arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Borrower
or any of its Subsidiaries in the ordinary course of business;
(s) Liens
securing Indebtedness of the Borrower or any Subsidiary incurred pursuant to Section 6.2(g) to finance the acquisition (including,
without limitation, by way of merger) of Capital Stock of any Person; provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of such Capital Stock, (ii) such Liens do not at any time encumber any Property other than the
Capital Stock of such acquired Person and (iii) the amount of Indebtedness secured thereby does not exceed $50,000,000;
(t) Liens
securing Indebtedness of the Borrower or any Subsidiary incurred pursuant to Section 6.2(g) or (m); provided that such
Liens shall at all times be subject to the Second Lien Intercreditor Agreement;
(u) Liens
not otherwise permitted by this Section 6.3, so long as neither (i) the aggregate outstanding principal amount of the obligations
secured thereby nor (ii) the aggregate Fair Market Value (determined as of the date such Lien is incurred) of the assets subject
thereto exceeds the greater of $25,000,000 or 1.00% of Consolidated Total Assets at any one time;
(v) Liens
with respect to Indebtedness of the Borrower or any other Subsidiary incurred pursuant to Section 6.2(o) and
Section 6.2(q); and
(w) Liens
securing Indebtedness of the Borrower or any Subsidiary incurred pursuant to Section 6.2(p); provided that such Liens shall
at all times be subject to (i) in the case of Indebtedness secured
on a pari passu basis with the Obligations, a Pari Passu Intercreditor Agreement and
(ii) in the case of Indebtedness secured on a junior basis to the Obligations, the Second Lien Intercreditor Agreement.
6.4 Limitation
on Fundamental Changes. Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer
any liquidation or dissolution), or Dispose of all or substantially all of its Property or business, except that:
(a) any
Subsidiary may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving
corporation) or with or into any Subsidiary Guarantor (provided that such Subsidiary Guarantor shall be the continuing or surviving
corporation);
(b) any
Subsidiary that is not a Subsidiary Guarantor may be merged or consolidated with or into any other Subsidiary that is not a Subsidiary
Guarantor;
(c) any
Subsidiary may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any Subsidiary Guarantor;
(d) any
Subsidiary that is not a Subsidiary Guarantor may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any
other Subsidiary that is not a Subsidiary Guarantor;
(e) any
Subsidiary may divide if such division would otherwise be permitted if effectuated in the form of a merger, consolidation, amalgamation,
sale, lease, transfer, disposition, liquidation, dissolution or other transaction permitted hereunder;
(f) the
Borrower or any Subsidiary may merge or consolidate with any other Person in connection with any
Permitted Acquisition or any other Investment permitted by Section 6.8 or any Disposition permitted by Section 6.5 (other than
Section 6.5(c)); provided that (i) if the Borrower is a party to such merger or consolidation, the Borrower
is the continuing or surviving Person and (ii) if such Subsidiary is a Subsidiary Guarantor, then either such Subsidiary Guarantor
shall be the continuing or surviving Person or such surviving Person shall become a Subsidiary Guarantor promptly after such merger or
consolidation; and
(g) to
the extent constituting Investments, transactions expressly permitted under Sections 6.5 (other than Section 6.5(c)) and 6.8.
6.5 Limitation
on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s Capital
Stock to any Person, except:
(a) the
Disposition of obsolete or worn out property in the ordinary course of business;
(b) the
sale of inventory and the Disposition of cash and Cash Equivalents in the ordinary course of business;
(c) Dispositions
permitted by Section 6.4;
(d) the
sale or issuance of any Subsidiary’s Capital Stock to (i) the Borrower or any Subsidiary Guarantor or (ii) a Subsidiary
that is not a Subsidiary Guarantor to the extent permitted by Section 6.8;
(e) the
Disposition of other assets in any fiscal year of the Borrower that contributed, in the aggregate,
not more thanfor fair market value so long as for
Dispositions in excess of 20% of Consolidated EBITDA for the prior fiscal year; provided
that in the case of eachany
Fiscal Year, at least 75% of the total consideration for any such Disposition, shall
be received by the Borrower shall be in pro forma compliance
with the financial covenants set forth in Section 6.1 after giving effect to such Disposition (determined on the assumption that
such Disposition and the repayment of any Indebtedness resulting therefrom had occurred on the first day of the relevant period measured
by such covenants); or any Subsidiary Guarantor in
the form of cash and Cash Equivalents (in each case, free and clear of all Liens at the time received, other than non-consensual Liens
permitted by Section 6.3); provided, that for the purposes of this clause (e), the following shall be deemed to be cash: (A) any
liabilities (as shown on the Borrower’s or Subsidiary Guarantor’s, as applicable, most recent balance sheet provided hereunder
or in the footnotes thereto) of the Borrower or such Subsidiary Guarantor, other than liabilities that are by their terms subordinated
to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which
the Borrower and each Subsidiary Guarantor shall have been validly released by all applicable creditors in writing and (B) any securities
received by the Borrower or the Subsidiary Guarantor from such transferee that are converted by the Borrower or such Subsidiary Guarantor
into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable
Disposition;
(f) any
Disposition constituting a Recovery Event; and
(g) Dispositions
of Intellectual Property that in the exercise of its reasonable business judgment, the Borrower has determined are not of material value
to the business of the Borrower and its Subsidiaries, taken as a whole.
6.6 Limitation
on Restricted Payments. Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any Capital Stock of the Borrower or any Subsidiary, whether now or hereafter outstanding,
or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the
Borrower or any Subsidiary, or enter into any derivatives or other transaction with any financial institution, commodities or stock exchange
or clearinghouse (a “Derivatives Counterparty”) obligating the Borrower or any Subsidiary to make payments to such
Derivatives Counterparty as a result of any change in market value of any such Capital Stock (collectively, “Restricted Payments”),
except: (a) any Subsidiary may declare and make Restricted Payments to the Borrower, any Subsidiary Guarantor or any other Person
that owns Capital Stock of such Subsidiary on a pro rata basis; (b) so long as no Default or Event of Default has occurred
and is continuing or would result therefrom, and the Borrower would be in compliance with the covenants set forth in Section 6.1
for the applicable period for which the financial statements and certificates required by Section 5.1(a) or (b) and Section 5.2(a) have
been delivered or are available, after giving pro forma effect to such Restricted Payment and to any other event occurring after such
period as to which pro forma recalculation is appropriate, the Borrower may declare and make Restricted Payments during any Fiscal Quarter
if, at the time such Restricted Payment is made, such Restricted Payment, together with all other Restricted Payments made pursuant to
this clause (b) during such Fiscal Quarter, does not exceed an aggregate amount equal to the Available Amount at such time; and
(c) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower may declare
and make Restricted Payments (i) in exchange for Capital Stock of the Borrower (other than Disqualified Stock), (ii) to be
used for the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of the Borrower held by any current
or former officer, director or employee of the Borrower pursuant to any equity subscription agreement, stock option plan or any other
management or employee benefit plan or agreement, shareholders’ agreement or similar agreement; provided that the aggregate
price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $10,000,000 in any fiscal year of the
Borrower (provided that the Borrower may carry over and make in a subsequent fiscal year, commencing with 2013, in addition to
the amounts permitted for such fiscal year, up to $2,000,000 of unutilized capacity under this clause (c)(ii) attributable to the
immediately preceding fiscal year); provided, further, that such amount in any fiscal year may be increased by an amount
not to exceed the Net Cash Proceeds received by the Borrower or any of its Subsidiaries (to the extent contributed to the Borrower) from
sales of Capital Stock (other than Disqualified Stock) of the Borrower to officers, directors or employees of the Borrower or any of
its Subsidiaries that occur after the Closing Date (provided that the Borrower may elect to apply all or any portion of the aggregate
increase contemplated by this proviso in any fiscal year); provided, further, that cancellation of Indebtedness owing to
the Borrower from members of management of the Borrower or any Subsidiary in connection with a repurchase of Capital Stock of the Borrower
will not be deemed to constitute a Restricted Payment, (iii) to be used for the repurchase of Capital Stock deemed to occur upon
the exercise of stock options to the extent such Capital Stock represent a portion of the exercise price of those stock options, (iv) to
holders of its Capital Stock in lieu of the issuance of fractional shares of its Capital Stock and (v) to be used for the acquisition
of any shares of Disqualified Stock of the Borrower in exchange for other shares of Disqualified Stock of the Borrower or with the net
cash proceeds from an issuance of Disqualified Stock by the Borrower within 10 Business Days of such issuance, in each case to the extent
such issuance is not prohibited under Section 6.2 hereto, Section 4.09 of the Senior Note Indenture and applicable provision
under the New Senior Note Indenture.
6.7 [Reserved.]
6.8 Limitation
on Investments. Make after the Closing Date any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution
to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting an ongoing business
from, or make any other investment in, any other Person (all of the foregoing, “Investments”), except:
(a) extensions
of trade credit in the ordinary course of business;
(b) investments
in Cash Equivalents;
(c) Investments
arising in connection with the incurrence and lending of Indebtedness permitted by Sections 6.2(b) and (e);
(d) loans
and advances to employees of the Borrower or any Subsidiaries of the Borrower in the ordinary course of business (including, without
limitation, for travel, entertainment and relocation expenses) in an aggregate amount for the Borrower and its Subsidiaries not to exceed
$5,000,000 at any one time outstanding;
(e) Permitted
Acquisitions;
(f) (i) Investments
(other than those relating to the incurrence of Indebtedness permitted by Section 6.8(c)) by the Borrower or any of its Subsidiaries
in the Borrower or any Person that, prior to such investment, is a Subsidiary Guarantor; (ii) Investments by any Subsidiary that
is not a Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary Guarantor; and (iii) Investments by the Borrower
or any Subsidiary Guarantor in any Subsidiary that is not a Subsidiary Guarantor in an amount not to exceed the greater or $50,000,000
or 2.00% of Consolidated Total Assets;
(g) any
Investments received (i) in compromise or resolution of (x) obligations of trade creditors or customers that were incurred
in the ordinary course of business of the Borrower or any of its Subsidiaries, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade creditor or customer or (y) litigation, arbitration or other disputes
with Persons who are not Affiliates; or (ii) in satisfaction of judgments;
(h) loans
by the Borrower in an aggregate principal amount not exceeding $5,000,000 to employees of the Borrower or its Subsidiaries to finance
the sale of the Borrower’s Capital Stock by the Borrower to such employees;
(i) receivables
owing to the Borrower or any Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance
with customary trade terms;
(j) any
Investment in any Person to the extent such Investment consists of prepaid expenses, negotiable instruments held for collection and lease,
utility and workers’ compensation, performance and other similar deposits made in the ordinary course of business by the Borrower
of any of its Subsidiaries;
(k) Investments
obtained as consideration for a Disposition of property permitted under Section 6.5 in an aggregate amount not to exceed 25% of
the total aggregate consideration received from all Dispositions of property permitted under Section 6.5 during the term hereof;
(l) Investments
consisting of Hedging Obligations;
(m) the
Acquisition;
(n) Investments
in an amount that does not exceed the Available Amount immediately prior to the time of the making of such Investment; provided
that no Default or Event of Default has occurred and is continuing or would result therefrom; and
(o) other
Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (o) or clause
(i)(ii) of the definition of “Permitted Acquisition” that are at the time outstanding, not to exceed an amount equal
to the sum of (i) the greater of (x) $200,000,000
and (y) 6% of Consolidated Total Assets plus (ii) any
amount attributable to Excluded Issuances after the Closing Date less the amount of any such Excluded Issuances that have been used after
the Closing Date to make any Investments pursuant to this clause (o) or to finance any Permitted Acquisition; provided that,
if an Investment made pursuant to this clause (o) is made in any Person that is not a Subsidiary at the date of the making of such
Investment and such Person becomes a Subsidiary after such date, such Investment will thereafter be deemed to have been made pursuant
to clause (f) above and shall cease to have been made pursuant to this clause (o).
6.9 Limitation
on Optional Payments and Modifications of Debt Instruments, etc. (a) Make any distribution, whether in cash, property,
securities or a combination thereof, other than regular scheduled payments of principal and interest as and when due (to the extent not
prohibited by applicable subordination provisions), in respect of, or pay, or commit to pay, or directly or indirectly redeem, repurchase,
retire or otherwise acquire for consideration, or set apart any sum for the aforesaid purposes, any Indebtedness except (A) the
payment of the Indebtedness created hereunder, (B) refinancings of Indebtedness to the extent such refinancings are permitted by
Section 6.2, (C) any refinancing, repayment, redemption, repurchase, retirement or other acquisition for consideration of Indebtedness,
in an amount that does not exceed the Available Amount immediately prior to the time of such refinancing, repayment, redemption, repurchase,
retirement or other acquisition for consideration; provided that (x) no
Default or Event of Default has occurred and is continuing or would result therefrom, and
(y) other than with respect to payments to repay, repurchase or redeem Borrower’s existing unsecured notes due 2025, on a
Pro Forma Basis (I) the Consolidated Senior Secured Leverage Ratio would be less than or equal to 5.00 to 1.00 and (II) the
Liquidity is equal to or greater than $150,000,000, (D) the payment of secured Indebtedness that becomes due as a result
of the voluntary sale or transfer of the property or assets securing such Indebtedness, (E) the prepayment of the Existing Senior
Notes Due 2021 with the proceeds of the Tranche B-4 Term Loans, Revolving Credit Loans and the proceeds of New Senior Notes to be issued
on or about the Third Amendment Effective Date, (F) the prepayment of the Senior Notes or New Senior Notes with the proceeds of
any senior notes or term loans issued or incurred, as applicable, and secured on a pari passu basis with the Loans incurred under the
Facilities, (b) amend, modify or otherwise change, or consent or agree to any amendment, modification, waiver or other change to,
any of the terms of the Senior Notes, the Senior Note Indenture, the New Senior Notes or the New Senior Note Indenture, or the indenture
or instruments governing any Indebtedness that refinances the Senior Notes or the New Senior Notes in a manner materially adverse to
the Agents or the Lenders or in a manner which imposes terms, conditions, covenants or obligations on the Loan Parties which are materially
more restrictive on such Loan Parties or (c) amend, modify or otherwise change, or consent or agree to any amendment, modification,
waiver or other change to, the certificate of incorporation, by-laws, limited liability company agreement, operating agreement, partnership
agreement or similar organizational document of the Borrower or any of its Subsidiaries in any manner materially adverse to the Agents
or the Lenders.
6.10 Limitation
on Transactions with Affiliates. Enter into any transaction, including, without limitation, any purchase, sale, lease or exchange
of Property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate (other than
the Borrower or any Subsidiary Guarantor) unless such transaction is (a) otherwise not prohibited under this Agreement and (b) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary, as the case may be, than it would obtain in a comparable
arm’s length transaction with a Person that is not an Affiliate. Notwithstanding the foregoing, the Borrower and its Subsidiaries
may enter into the transactions set forth on Schedule 6.10.
6.11 Limitation
on Sales and Leasebacks. Enter into any sale and leaseback transaction; provided that the Borrower or any Subsidiary may enter
into a sale and leaseback transaction if:
(a) the
Borrower or such Subsidiary, as applicable, could have (i) incurred Indebtedness in an amount equal to the Attributable Debt relating
to such sale and leaseback transaction under Section 6.2 and (ii) incurred a Lien to secure such Indebtedness pursuant to Section 6.3;
(b) the
gross cash proceeds of that sale and leaseback transaction are at least equal to the Fair Market Value of the property that is the subject
of that sale and leaseback transaction; and
(c) the
transfer of assets in that sale and leaseback transaction is permitted by Section 6.5.
6.12 Limitation
on Changes in Fiscal Periods. Permit the fiscal year of the Borrower to end on a day other than the Saturday nearest to December 31
without the consent of the Administrative Agent.
6.13 Limitation
on Negative Pledge Clauses. Enter into or suffer to exist or become effective any agreement that prohibits or limits the ability
of the Borrower or any of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon any of its Property or revenues,
whether now owned or hereafter acquired, to secure the Obligations or, in the case of any Subsidiary Guarantor, its obligations under
the Guarantee and Collateral Agreement, other than (a) this Agreement and the other Loan Documents, (b) any agreements governing
any purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in which case, any prohibition or limitation shall
only be effective against the assets financed thereby), (c) customary non-assignment provisions in licenses or sublicenses by the
Borrower and its Subsidiaries in the ordinary course of business (in which case such prohibition or limitation shall only be effective
against the Intellectual Property subject thereto), (d) customary provisions in joint venture agreements and similar agreements
that restrict transfers of assets of, or equity interests in, such joint venture, (e) agreements governing Indebtedness permitted
by Sections 6.2(g), (h) and (m) (provided that, in the case of such agreements governing Indebtedness permitted by Section 6.2(h),
such prohibition or limitation shall be effective only against the property acquired thereby) and (f) agreements entered into by
a Subsidiary that is not a Subsidiary Guarantor governing Liens permitted by Section 6.3(m) or the Indebtedness secured thereby
(in which case such prohibition or limitation shall only be effective against the assets of such Subsidiary subject to such Lien).
6.14 Limitation
on Restrictions on Subsidiary Distributions. Enter into or suffer to exist or become effective any consensual encumbrance or restriction
on the ability of any Subsidiary to (a) make Restricted Payments in respect of any Capital Stock of such Subsidiary held by, or
pay or subordinate any Indebtedness owed to, the Borrower or any other Subsidiary, (b) make Investments in the Borrower or any other
Subsidiary or (c) transfer any of its assets to the Borrower or any other Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan Documents, (ii) any restrictions existing under
the New Senior Note Indenture, the New Senior Note Indenture and any agreements governing Indebtedness permitted by Sections 6.2(f),
to the extent such restrictions are no more restrictive than those in the Senior Note Indenture or the New Senior Note Indenture, (iii) any
restrictions with respect to a Subsidiary imposed pursuant to an agreement that has been entered into in connection with the Disposition
of all or substantially all of the Capital Stock or assets of such Subsidiary, (iv) customary net worth provisions contained in
real property leases entered into in by any Loan Party so long as such net worth provisions would not reasonably be expected to impair
materially the ability of the Loan Parties to meet their ongoing obligations under this Agreement or any of the other Loan Documents,
and (v) with respect to clause (c) only, (i) customary non-assignment provisions in licenses or sublicenses by the Borrower
and its Subsidiaries in the ordinary course of business (in which case such prohibition or limitation shall only be effective against
the Intellectual Property subject thereto), (ii) customary provisions in joint venture agreements and similar agreements that restrict
transfers of assets of, or equity interests in, such joint venture, (iii) agreements governing Indebtedness permitted by Sections
6.2(g), (h) and (m) (provided that, in the case of such agreements governing Indebtedness permitted by Section 6.2(h),
such prohibition or limitation shall be effective only against the property acquired thereby), (iv) agreements entered into by a
Subsidiary that is not a Subsidiary Guarantor governing Liens permitted by Section 6.3(m) or the Indebtedness secured thereby
(in which case such prohibition or limitation shall only be effective against the assets of such Subsidiary subject to such Lien) and
(v) any agreements governing any purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in which case, any
prohibition or limitation shall only be effective against the assets financed thereby).
6.15 Limitation
on Lines of Business. Enter into any business, either directly or through any Subsidiary, except for those businesses in which the
Borrower and its Subsidiaries are engaged on the date of this Agreement or that are reasonably related thereto.
Section 7. EVENTS
OF DEFAULT
If any of the following events
shall occur and be continuing:
(a) the
Borrower shall fail to pay any principal of any Loan or Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation, or any other amount payable hereunder or under any other
Loan Document, within five days after any such interest or other amount becomes due in accordance with the terms hereof; or
(b) any
representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate,
document or financial or other written statement furnished by it at any time under or in connection with this Agreement or any other
Loan Document shall prove to have been inaccurate in any material respect on or as of the date made or deemed made or furnished; or
(c) any
Loan Party shall default in the observance or performance of any agreement contained in clause (i) or (ii) of Section 5.4(a) (with
respect to the Borrower only), Section 5.7(a) or Section 6 (provided that an Event of Default under Section 6.1
shall not constitute an Event of Default for purposes of the Tranche B-4-5
Term Loan Facility or any other Term Loan Facility unless and until the Majority Facility Lenders with respect to the Revolving
Credit Facility have terminated the Revolving Credit Commitments and declared the Revolving Credit Loans due and payable), or Section 5.6
of the Guarantee and Collateral Agreement; or
(d) any
Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and such default shall continue unremedied for a period
of 30 days; or
(e) the
Borrower or any of its Subsidiaries shall (i) default in making any payment of any principal of any Indebtedness (including, without
limitation, any Guarantee Obligation, but excluding the Loans and Reimbursement Obligations) on the scheduled or original due date with
respect thereto; or (ii) default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was created; or (iii) default in the observance or performance
of any other 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, the effect of which default or other event or condition is to
cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such
Indebtedness constituting a Guarantee Obligation) to become payable; provided that a default, event or condition described in
clause (i), (ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of Default unless, at such time,
one or more defaults, events or conditions of the type described in clauses (i), (ii) and (iii) of this paragraph (e) shall
have occurred and be continuing with respect to Indebtedness the outstanding principal amount of which exceeds in the aggregate the
greater of $40,000,000 and 1.2% of Consolidated Total Assets;
or
(f) (i) the
Borrower or any of its Subsidiaries shall commence any case, proceeding or other action (A) under any existing or future Debtor
Relief Law, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or
any substantial part of its assets, or the Borrower or any of its Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Borrower or any of its Subsidiaries any case, proceeding or other action
of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any of its Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief
that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the
Borrower or any of its Subsidiaries shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any of its Subsidiaries shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(g) there
shall occur an ERISA Event, a Foreign Benefit Event or any other similar event or condition with respect to a Plan or Multiemployer Plan
(other than in the ordinary course of business) that could result in liability of the Borrower or any Subsidiary that, in the sole judgment
of the Required Lenders, when taken together with all other such ERISA Events, Foreign Benefit Events or other similar events or conditions,
resulted or could reasonably be expected to result in a Material Adverse Effect; or
(h) one
or more judgments or decrees shall be entered against the Borrower or any of its Subsidiaries involving for the Borrower and its Subsidiaries
taken as a whole a liability (not paid or fully covered by insurance as to which the relevant insurance company has not disputed or denied
coverage (but only to the extent of the dispute or denial of coverage)) of $40,000,000 or more, and all such judgments or decrees shall
not have been vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof; or
(i) any
of the Security Documents or any other material Loan Document shall cease, for any reason (other than in accordance with their respective
terms), to be in full force and effect, or any Loan Party or any Affiliate of any Loan Party shall so assert, or any Lien created or
purported to be created by any of the Loan Documents shall cease to be, or shall be asserted by any Loan Party not to be, at any time
a valid and perfected Lien on a material portion of the Collateral purported to be secured thereby (except Liens released in accordance
with the terms of the Loan Documents); or
(j) the
guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and
effect or any Loan Party or any Affiliate of any Loan Party shall so assert (except, in each case, in accordance with its terms or guarantees
released in accordance with the terms of the Loan Documents); or
(k) any
subordinated Indebtedness of the Borrower and its Subsidiaries the outstanding principal amount of which exceeds in the aggregate $40,000,000
shall cease (or any Loan Party or an Affiliate of any Loan Party shall so assert), for any reason, to be validly subordinated to the
Obligations as provided in the agreements evidencing such subordinated Indebtedness; or
(l) (i) a
“Change of Control” as defined in the Senior Note Indenture (or in any document or agreement governing or evidencing refinancing
Indebtedness in respect of all or any portion of the Senior Notes) or in the New Senior Note Indenture (or in any document or agreement
governing or evidencing refinancing Indebtedness in respect of all or any portion of the New Senior Notes) shall occur or (ii) a
Specified Change of Control shall occur;
then, and in any such event, (A) if such
event is an Event of Default specified in clause (i) or (ii) of paragraph (f) above with respect to the Borrower, automatically
the Revolving Credit Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement and the other Loan Documents (including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) shall immediately
become due and payable, (B) if such event is any other Event of Default (other than in the case of an Event of Default under Section 7(c) with
respect to any default of performance or compliance with the covenants under Section 6.1 prior to the date the Revolving
Credit Loans (if any) have been accelerated and the Revolving Credit Commitments have been terminated), either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower declare the Revolving Credit Commitments to be terminated forthwith,
whereupon the Revolving Credit Commitments shall immediately terminate; and (ii) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately become due and payable, (C) if
such event is an Event of Default under Section 7(c) with respect to any default of performance or compliance with the
covenants under Section 6.1, either or both of the following actions may be taken: (i) with the consent of the Majority
Facility Lenders of the Revolving Credit Facility, the Administrative Agent may, or upon the request of the Majority Facility Lenders
of the Revolving Credit Facility, the Administrative Agent shall, by notice to the Borrower declare the Revolving Credit Commitments
to be terminated forthwith, whereupon the Revolving Credit Commitments shall immediately terminate; and (ii) with the consent of
the Majority Facility Lenders of the Revolving Credit Facility, the Administrative Agent may, or upon the request of the Majority Facility
Lenders of the Revolving Credit Facility, the Administrative Agent shall, by notice to the Borrower, declare the Revolving Credit Loans
hereunder (with accrued interest thereon) and all other amounts owing under this Agreement with respect to the Revolving Credit Facility
(including, without limitation, all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit
shall have presented the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately become
due and payable. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time
of an acceleration pursuant to this paragraph, the Borrower shall at such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other obligations
of the Borrower hereunder and under the other Loan Documents. After all such Letters of Credit shall have expired or been fully drawn
upon, all Reimbursement Obligations shall have been satisfied and all other obligations of the Borrower hereunder and under the other
Loan Documents shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the Borrower (or
such other Person as may be lawfully entitled thereto).
Section 8. THE
AGENTS; THE ARRANGERS
8.1 Appointment.
Each of the Issuing Lender and each Lender hereby irrevocably designates and appoints the Administrative Agent and the Collateral Agent
(for purposes of this Section 8, the Administrative Agent and the Collateral Agent are referred to collectively as the “Agents”)
as its agent under this Agreement and the other Loan Documents, and each of the Issuing Lender and each Lender irrevocably authorizes
each Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to such Agent by the terms of this Agreement and the other
Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely
for the benefit of the Agents, the Issuing Lender and the Lenders, and neither the Borrower nor any other Loan Party shall have rights
as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein
or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent or the Collateral Agent, as applicable,
is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.
Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between
contracting parties. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to (i) execute
any and all documents (including releases and the Security Documents) with respect to the Collateral and the rights of the Secured Parties
with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and (ii) negotiate,
enforce or the settle any claim, action or proceeding affecting the Lenders in their capacity as such, at the direction of the Required
Lenders, which negotiation, enforcement or settlement will be binding upon each Lender.
The Person serving as the
Administrative Agent and/or the Collateral Agent hereunder or under any other applicable Loan Document shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and the term “Lender”
or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving
as an Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities
of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with the Borrower
or any Subsidiary or other Affiliate thereof (subject to securities law and other Requirements of Law) as if it were not an Agent hereunder
and without any duty to account therefor to the Lenders.
8.2 Delegation
of Duties. Each Agent may perform any, and all of its duties and exercise its rights and powers, under this Agreement and the other
Loan Documents by or through agents, sub-agents or attorneys-in-fact appointed by it and shall be entitled to advice of counsel concerning
all matters pertaining to such duties. Each Agent and any such agent, sub-agent or attorney-in-fact may perform any and all its duties
and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of Section 8.3 shall
apply to any such agent, sub-agent and attorney-in-fact and to the Related Parties of each Agent and any such agent, sub-agent and attorney-in-fact,
and shall apply to their respective activities in connection with the syndication of the Facilities as well as activities as Agent. No
Agent shall be responsible for the negligence or misconduct of any agents, sub-agents or attorneys-in-fact except to the extent that
a court of competent jurisdiction determines in a final and non-appealable judgment that such Agent acted with gross negligence, willful
misconduct or bad faith in the selection of such agent, sub-agent or attorney-in-fact.
8.3 Exculpatory
Provisions. No Agent shall have any duties or obligations except those expressly set forth in the Loan Documents, and each Agent’s
duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, no Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall (a) be subject to any fiduciary or other implied duties, regardless
of whether a Default or Event of Default has occurred and is continuing, (b) 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 for herein or in the other Loan Documents); provided that no Agent shall be required to take any action that, in its
opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable law,
and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, nor shall it be liable for
the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the
Person serving as Administrative Agent and/or Collateral Agent or any of its Affiliates in any capacity. No Agent shall be liable for
any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances as provided
in Section 7) or in the absence of its own gross negligence, willful misconduct or bad faith as determined by a court of competent
jurisdiction by a final non-appealable judgment. No Agent shall be responsible for or have any duty to inspect the properties, books
or records of any Loan Party or to ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with this Agreement or any other Loan Document, (ii) the contents of any certificate, report, statement or other document referred
to or provided for, or received by any Agent under or in connection with, this Agreement or any other Loan Document, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any
Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in Section 4 or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to such Agent.
8.4 Reliance
by Administrative Agent. Each Agent shall be entitled to rely, and shall not incur any liability for relying, upon any instrument,
writing, resolution, notice, request, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order
or other document or writing (including any electronic message, Internet or intranet website posting or other distribution) believed
by it to be genuine and to have been signed, sent, made or otherwise authenticated by the proper Person or Persons. Each Agent may also
rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur
any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension,
renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the Issuing Lender,
each Agent may presume that such condition is satisfactory to such Lender or the Issuing Lender unless such Agent shall have received
notice to the contrary from such Lender or the Issuing Lender prior to the making of such Loan or the issuance of such Letter of Credit.
Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts. The Administrative Agent may deem and treat the payee of any Note 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. Each Agent shall be fully justified
in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders (or, if so specified by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and expense (other than any liability or expense arising
from its gross negligence, willful misconduct or bad faith) that may be incurred by it by reason of taking or continuing to take any
such action. Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other
Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all Lenders or, in the case
of the Collateral Agent, if so specified by the applicable Security Document, such other requisite number or percentage of Secured Parties),
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, the Commitments and L/C Obligations.
8.5 Notice
of Default. No Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless
such Agent has received written notice from a Lender 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, the Administrative Agent shall give notice thereof to the Lenders.
8.6 Non-Reliance
on Agents and Other Lenders. Each of the Issuing Lender and each Lender expressly acknowledges that none of the Agents nor any of
their respective Related Parties have made any representations or warranties to it and that no act by any Agent hereafter taken, including
any review of the affairs of a Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any representation or warranty
by such Agent to the Issuing Lender or any Lender. Each of the Issuing Lender and each Lender represents to each Agent that it has, independently
and without reliance upon any Agent or any 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
Loan Parties and their respective Affiliates and made its own decision to make its Loans and other extensions of credit hereunder and
enter into this Agreement. Each of the Issuing Lender and each Lender also represents that it will, independently and without reliance
upon any Agent or any Lender or any of their respective Related Parties, and based on such documents and information as it shall deem
appropriate at the time, it will, independently and without reliance upon any Agent or any Lender or any of their respective Related
parties, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based upon this Agreement
or any other Loan Document, any related agreement or any document furnished hereunder or thereunder, 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 the
Loan Parties and their respective Affiliates. Except for notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, no Agent shall have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of
any Loan Party or any Affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
8.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in effect on
the date on which indemnification is sought under this Section (or, if indemnification is sought after the date upon which the Revolving
Credit Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such Aggregate Exposure
Percentages 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, without limitation, at any
time following the payment of the Loans) be imposed on, incurred by or asserted against the Administrative Agent in any way relating
to or arising out of, the Revolving Credit Commitments, this Agreement, any of the other Loan 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 under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found
by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the Administrative Agent’s gross
negligence, willful misconduct or bad faith. The agreements in this Section shall survive the payment of the Loans and all other
amounts payable hereunder.
8.8 Administrative
Agent in Its Individual Capacity. The Person serving as the Administrative Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with any Loan Party as though the Person serving as the Administrative Agent were not
the Administrative Agent hereunder. With respect to its Loans made or renewed by it and with respect to any Letter of Credit issued or
participated in by it, the Person serving as the Administrative Agent shall have the same rights and powers under this Agreement and
the other Loan Documents as any Lender and may exercise the same as though it were not the Administrative Agent, and the terms “Lender”
and “Lenders” shall include the Person serving as the Administrative Agent in its individual capacity.
8.9 Successor
Agents. Each Agent may resign at any time upon 10 days’ written notice to the Lenders, the Issuing Lender and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint from among the Lenders a successor Agent, which successor
Agent shall (unless an Event of Default under Section 7(a) or Section 7(f) with respect to the Borrower shall have
occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon
such successor Agent shall succeed to the rights, powers and duties of the resigning Agent, and the term “Administrative Agent”
and/or “Collateral Agent”, as applicable, shall mean such successor Agent effective upon such appointment and approval, and
the resigning Agent’s rights, powers and duties as Agent shall be terminated, without any other or further act or deed on the part
of such resigning Agent or any of the parties to this Agreement or any holders of the Loans. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 10 days after the resigning Agent gives notice of its resignation,
then the resigning Agent may, on behalf of the Lenders and the Issuing Lender, appoint a successor Agent which shall be a financial institution
with an office in New York, New York, or an Affiliate of any such financial institution. If no successor Agent has been appointed pursuant
to the immediately preceding sentence by the 10th day after the date such notice of resignation was given by such Agent, such Agent’s
resignation shall become effective (and such Agent shall be relieved from its duties and obligations hereunder) and the Required Lenders
shall thereafter perform all the duties of such Agent hereunder and/or under any other Loan Document until such time, if any, as the
Required Lenders appoint a successor Administrative Agent and/or Collateral Agent, as the case may be. Any such resignation by such Agent
hereunder shall also constitute, to the extent applicable, its resignation as the Issuing Lender, in which case such resigning Agent
(a) shall not be required to issue any further Letters of Credit hereunder and (b) shall maintain all of its rights as Issuing
Lender with respect to any Letters of Credit issued by it prior to the date of such resignation. Upon the acceptance of its appointment
as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties
of the resigning Agent, and the resigning Agent shall be discharged from its duties and obligations hereunder (if not already discharged
therefrom as provided above). The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this
Section 8 and Section 9.5 shall continue in effect for the benefit of such resigning 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 acting as Agent.
8.10 Authorization
to Release Liens; Other Actions Relating to Security Documents. The Secured Parties irrevocably authorize the Collateral Agent, at
its option and in its discretion, (a) to release any Lien on any property granted to or held by the Collateral Agent under any Loan
Document (i) upon termination of all Commitments and payment in full of all Obligations (other than contingent obligations in respect
of which no assertion of liability (whether oral or written) and no claim or demand for payment (whether oral or written) has been made
(and, in the case of Obligations for indemnification, no notice for indemnification has been issued by the indemnitee) at such time)
and the expiration or termination of all Letters of Credit (other than Letters of Credit that have been cash collateralized or backstopped
in a manner reasonably acceptable to the relevant Issuing Lender and the Administrative Agent), (ii) that is sold or otherwise disposed
of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted under the Loan Documents,
or (iii) subject to Section 9.1, if approved, authorized or ratified in writing by the Required Lenders; (b) to subordinate
any Lien on any property granted to or held by the Collateral Agent under any Loan Document to the holder of any Lien on such property
that is permitted by Section 6.3(g); and (c) to release any Subsidiary Guarantor from its obligations under the Guarantee and
Collateral Agreement or any other Security Document if such Person ceases to be a Subsidiary Guarantor as a result of a transaction permitted
under the Loan Documents. Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral
Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Subsidiary
Guarantor from its obligations under the Guarantee and Collateral Agreement pursuant to this paragraph. The Collateral Agent shall not
be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability
of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by
any Loan Party in connection therewith, nor shall the Collateral Agent be responsible or liable to the other Secured Parties for any
failure to monitor or maintain any portion of the Collateral.
8.11 The
Arrangers; the Co-Syndication Agents; the Co-Documentation Agents. Notwithstanding any other provision of this Agreement or any provision
of any other Loan Document, each of the Arrangers, each of the Co-Syndication Agents and each of the Co-Documentation Agents are named
as such for recognition purposes only, and in their respective capacities as such shall have no duties, responsibilities or liabilities
with respect to this Agreement or any other Loan Document; it being understood and agreed that each of the Arrangers, each of the Co-Syndication
Agents and each of the Co-Documentation Agents shall be entitled to all indemnification and reimbursement rights in favor of the Agents
provided herein and in the other Loan Documents. Without limiting the foregoing, none of the Arrangers, the Co-Syndication Agents or
the Co-Documentation Agents in their respective capacities as such shall, by reason of this Agreement or any other Loan Document, have
any fiduciary relationship in respect of any Lender, the Issuing Lender, any Loan Party or any other Person.
8.12 Certain
Proceedings. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any
Loan Party, each Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether such Agent shall have made any demand on the Borrower) shall be entitled and empowered (but
not obligated) by intervention in such proceeding or otherwise (a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents
as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Lender and the Agents (including any claim for
the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Lender and the Agents and their respective
agents, sub-agents and counsel and all other amounts due the Lenders, the Issuing Lender and the Agents under Section 9.5) allowed
in such judicial proceeding and (b) to collect and receive any monies or other property payable or deliverable on any such claims
and to distribute the same and, in either case, any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Lender and each other Secured Party to make such payments to such
Agent and, in the event that such Agent shall consent to the making of such payments directly to the Lenders, to pay to such Agent any
amount due for the reasonable compensation, expenses, disbursements and advances of such Agent and its agents, sub-agents and counsel,
and any other amounts due such Agent under Sections 9.5.
8.13 Withholding
Taxes. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender or the
Issuing Lender an amount equivalent to any applicable withholding Tax. If any payment has been made to any Lender or the Issuing Lender
by the Administrative Agent without the applicable withholding Tax being withheld from such payment and the Administrative Agent has
paid over the applicable withholding Tax to the Internal Revenue Service, any other Governmental Authority, or the Internal Revenue Service
or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to
or for the account of any Lender or the Issuing Lender or any Tax is attributable to a Lender's failure to maintain a Participant Register
pursuant to Section 9.6(b), such Lender or the Issuing Lender, as applicable, shall indemnify the Administrative Agent fully for
all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any penalties or interest and together
with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred. The indemnity under this
Section 8.13 shall be paid within 10 days after the Administrative Agent delivers to the applicable Lender a certificate stating
the amount so paid or payable by the Administrative Agent. Such certificate shall be conclusive of the amount so paid or payable 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 any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any
amount due to the Administrative Agent under this Section 8.13.
8.14 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 Refinancing Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the
Borrower or any other Loan Party, that at least one of the following is and will be true:
(i) such
Lender is not using “plan assets” (within the meaning of 29 C.F.R. § 2510.3-101, as modified by Section 3(42) of
ERISA) of one or more Plans in connection with the Loans, the Letters of Credit or the Commitments,
(ii) the
transaction exemption set forth in 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 and fully covers and exempts such Lender’s entrance into, participation in, administration of and
performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii) (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE
84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate
in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation
in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements
of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements
of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv) such
other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and
such Lender.
(b) In
addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has
not provided another representation, warranty and covenant as provided in 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 Refinancing Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the
benefit of the Borrower or any other Loan Party, that:
(i) none
of the Administrative Agent or the Refinancing Arranger or any of their respective Affiliates is a fiduciary with respect to the assets
of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement,
any Loan Document or any documents related to hereto or thereto),
(ii) the
Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR
§ 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under
management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),
(iii) the
Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently,
both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),
(iv) the
Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both,
with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment
in evaluating the transactions hereunder, and
(v) no
fee or other compensation is being paid directly to the Administrative Agent, the Arrangers or the Refinancing Arranger or any their
respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments
or this Agreement.
(c) The
Administrative Agent and the Refinancing Arranger hereby inform the Lenders that each such Person is not undertaking to provide impartial
investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such
Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive
interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize
a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest
in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection
with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement
fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization
fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees,
term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
8.15 Erroneous
Payments.
(a) Each
Lender and each Issuing Lender (and each Participant of any of the foregoing, by its acceptance of a Participation) hereby acknowledges
and agrees that if the Administrative Agent notifies such Lender or Issuing Lender that the Administrative Agent has determined in its
sole discretion that any funds (or any portion thereof) received by such Lender or Issuing Lender (any of the foregoing, a “Recipient”)
from the Administrative Agent (or any of its Affiliates) were erroneously transmitted to, or otherwise erroneously or mistakenly received
by, such Recipient (whether or not known to such Recipient) (whether as a payment, prepayment or repayment of principal, interest, fees
or otherwise; individually and collectively, a “Payment”) and demands the return of such Payment, such Recipient shall promptly,
but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment as to which
such a demand was made. A notice of the Administrative Agent to any Recipient under this Section 8.15 shall be conclusive, absent
manifest error.
(b) Without
limitation of clause (a) above, each Recipient further acknowledges and agrees that if such Recipient receives a Payment from the
Administrative Agent (or any of its Affiliates) (x) that is in an amount, or on a date different from the amount and/or date specified
in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”),
(y) that was not preceded or accompanied by a Payment Notice, or (z) that such Recipient otherwise becomes aware was transmitted,
or received, in error or by mistake (in whole or in part), in each case, it understands and agrees at the time of receipt of such Payment
that an error has been made (and that it is deemed to have knowledge of such error) with respect to such Payment. Each Recipient agrees
that, in each such case, it 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.
(c) Any
Payment required to be returned by a Recipient under this Section 8.15 shall be made in immediately available funds in the currency
so received, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was
received by such Recipient to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Effective
Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from
time to time in effect. Each Recipient hereby agrees that it shall not assert and, to the fullest extent permitted by applicable law,
hereby waives, any right to retain such Payment, and any claim, counterclaim, defense or right of set-off or recoupment or similar right
to any demand by the Administrative Agent for the return of any Payment received, including without limitation any defense based on “discharge
for value” or any similar doctrine.
(d) The
Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) is 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
with respect to the amount of such erroneous Payment that is, comprised of funds of the Borrower or any other Loan Party.
(e) Each
party’s obligations, agreements and waivers under this Section 8.15 shall survive the resignation or replacement of the Administrative
Agent, any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Lender, the termination of the Commitments
and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
Section 9. MISCELLANEOUS
9.1 Amendments
and Waivers. Subject to Section 2.15, neither this Agreement or any other Loan Document, nor any terms hereof or thereof,
may be amended, supplemented or modified except in accordance with the provisions of this Section 9.1. Subject to the provisions
of the immediately following sentence, the Required Lenders and each Loan Party party to the relevant Loan Document may, or (with the
written consent of the Required Lenders) the Administrative Agent and each Loan Party party to the relevant Loan Document may, from time
to time, (a) enter into written amendments, supplements or modifications hereto and to the other Loan Documents (including amendments
and restatements hereof or thereof) for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing
in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions
as may be specified in the instrument of waiver, any of the requirements of this Agreement or the other Loan Documents or any Default
or Event of Default and its consequences; provided, however, that no such waiver and no such amendment, supplement or modification
shall (i) forgive, waive or excuse the principal amount or extend the final scheduled date of maturity or any amortization payment
of any Loan or Reimbursement Obligation, or reduce the stated rate of any interest (other than the waiver of default interest) or fee
payable hereunder or extend the scheduled date of any payment thereof or modify the definition of Interest Period to permit an Interest
Period greater than six months in duration, or increase the amount or extend the expiration date of the Revolving Credit Commitment of
any Lender, in each case without the consent of each Lender directly affected thereby; (ii) amend, modify or waive any provision
of this Section 9.1 (except for technical amendments with respect to additional extensions of credit pursuant to this Agreement
which afford the protections to such additional extensions of credit of the type provided to the Loans and the Commitments on the Closing
Date, which technical amendments shall, for the avoidance of doubt, be subject to the consent of the Required Lenders) or reduce any
percentage specified in the definition of Required Lenders (it being understood that, with the written consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially
the same basis as the extensions of Loans and Commitments are included on the Closing Date), consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or substantially all
of the Collateral or release all or substantially all of the value of the Subsidiary Guarantors’ guarantee obligations under the
Guarantee and Collateral Agreement, in each case without the consent of all Lenders; (iii) amend, modify or waive any provision
of Section 8 without the consent of the Administrative Agent; (iv) amend, modify or waive any provision of Section 2.16
without the consent of each Lender directly affected thereby; (v) amend, modify, or waive any provision of Sections 2.23 through
2.30 without the consent of the Issuing Lenders; (vi) extend the expiration date of any Letter of Credit to a date later than the
fifth Business Day prior to the Revolving Credit Termination Date without the consent of each Lender (including the Issuing Lender) unless
such Letter of Credit has been cash collateralized or backstopped in a manner reasonably acceptable to the relevant Issuing Lender; (vii) reduce
the percentage specified in the definition of Majority Facility Lenders with respect to any Facility without the consent of all Lenders
under such Facility; (viii) alter the required application of any repayments or prepayments as between Facilities pursuant to Sections
2.9 and 2.10 without the consent of Majority Facility Lenders with respect to each Facility being allocated a lesser repayment or prepayment
as a result thereof (it being understood, however, that additional extensions of credit being given substantially the same treatment
as the Loans and Commitments on the Closing Date shall be permitted by vote of the Required Lenders and the Required Lenders may waive,
in whole or in part, any prepayment or commitment reductions so long as the application, as among the various Facilities and as among
the Lenders of each such Facility, of any such prepayment or commitment reduction which is still required to be made is not altered);
(ix) impose any additional restrictions on any Lender’s ability to assign any of its rights or obligations hereunder (including
any amendment to Section 9.6) (other than, for the avoidance of doubt, any supplement to the Excluded Lender list in compliance
herewith) without the prior written consent of the Lenders adversely affected thereby); (x) amend or modify the definition of “Qualified
Counterparty,” “Specified Hedge Agreement” or “Secured Obligations” (as defined in the Guarantee and Collateral
Agreement) in each case in a manner adverse to any Qualified Counterparty with Secured Obligations (as defined in the Guarantee and Collateral
Agreement) then outstanding without the written consent of such Qualified Counterparty; or (xi) subordinate the Liens securing any
of the Secured Obligations on all or substantially all of the Collateral to any other Lien securing any other Indebtedness (except as
provided in Section 8.10 with respect to Liens permitted by 6.3(g)) or subordinate the Secured Obligations in contractual right
of payment to any other Indebtedness, in each case, without the consent of each Lender affected thereby; provided that no such Lender’s
consent shall be required pursuant to this clause (xi) with respect to any debtor-in-possession financing; provided, however,
that, notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to consent to any such agreement, other
than any such agreement which amends, modifies or otherwise affects the rights or obligations of a Defaulting Lender differently than
the rights or obligations of the other Lenders or increases or extends the Commitment or decreases the principal amount of, or extends
the maturity of any scheduled principal payment date or date for the payment of any interest on any Loan of any such Defaulting Lender.
Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon
the Loan Parties, the Lenders, the Administrative Agent and all future holders of the Loans and L/C Obligations. In the case of any waiver,
the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under
the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver
shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. Any such waiver, amendment,
supplement or modification shall be effected by a written instrument signed by the parties required to sign pursuant to the foregoing
provisions of this Section; provided that delivery of an executed signature page of any such instrument by facsimile transmission
shall be effective as delivery of a manually executed counterpart thereof. Notwithstanding the foregoing, (A) the waiver of any
condition set forth in Section 4.2 as to any extension of credit under any Facility may be effected solely with the written consent
of the Majority Facility Lenders under such Facility and (B) any other amendment or waiver solely affecting one Facility and not
any other Facility may be effected solely with the consent of the Majority Facility Lenders under such affected Facility.
9.2 Notices.
Except in the case of notices and other communications expressly permitted to be given by telephone (and except for electronic communications
provided for below), all notices, requests, demands and other communications to or upon the respective parties hereto to be effective
shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax,
as follows:
The Borrower: |
B&G Foods, Inc. |
|
Four Gatehall Drive, Suite 110 |
|
Parsippany, NJ 07054 |
|
Attention: Chief Financial Officer |
|
Telecopy: 973-630-6550 |
|
Telephone: 973-401-6500 |
with a copy to: |
B&G
Foods, Inc. |
|
Four Gatehall Drive, Suite 110 |
|
Parsippany, NJ 07054 |
|
Attention: General Counsel |
|
Telecopy: 973-630-6550 |
|
Telephone: 973-401-6500 |
The Administrative Agent or |
Notices (other than Requests for Extensions of Credit): |
the Collateral Agent: |
Barclays Bank PLC |
|
Bank Debt Management Group |
|
745 Seventh Avenue |
|
New York, NY 10019 |
|
Attn: Christopher Lee |
|
Tel: + 1 212 526 0732 |
|
Facsimile: 212-526-5115 |
|
Email:
Christopher.r.lee@barclays.com |
|
|
|
For Payments and Requests for Extensions of Credit: |
|
Barclays Bank PLC |
|
Loan Operations |
|
1301 Avenue of the Americas |
|
New York, NY 10019 |
|
Attn: Agency Services – B&G Foods; Contact Name Michele Sirigos |
|
Tel: +1 212-320 - 6136 |
|
Facsimile: 917-522-0569 |
|
Email: xrausloanops5@barclays.com |
Issuing Lender: |
As notified by such Issuing Lender to the Administrative Agent and the Borrower |
|
|
Lenders: |
To the applicable Lender as set forth in an administrative questionnaire delivered to the Administrative Agent or on Schedule I to the lender addendum to which such Lender is a party or, in the case of a Lender which becomes a party to this Agreement pursuant to an Assignment and Assumption, in such Assignment and Assumption. |
Notices sent by hand or overnight
courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile
shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed
to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications,
to the extent provided in the immediately following paragraph, shall be effective as provided in said paragraph.
Notices and other communications
to the Lenders hereunder may be delivered or furnished by electronic communication (including e mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender
pursuant to Section 2 if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Section by
electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications
to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (a) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such
as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (b) notices
or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient,
at its e-mail address as described in the foregoing clause (a), of notification that such notice or communication is available and identifying
the website address therefore; provided that, for both clauses (a) and (b) above, if such notice, email or other communication
is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening
of business on the next Business Day for the recipient. Each Lender agrees 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 notices may be sent by electronic
transmission and that the foregoing notice may be sent to such e-mail address.
Any party hereto may change
its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto.
Each Loan Party agrees that
the Administrative Agent may, but shall not be obligated to, make the Communications (as defined below) available to the Lenders by posting
the Communications on Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system (the “Platform”).
The Platform is provided “as is” and “as available.” The Administrative Agent and its Related Parties do not warrant
the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind,
express, implied or statutory, including, without limitation, 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 Administrative Agent or any of its Related Parties in
connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties have any
liability to the Borrower or the other Loan Parties, any Lender or any other Person or entity for damages of any kind, including, without
limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise)
arising out of the Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of communications through
the Platform. “Communications” means, collectively, any notice, demand, communication, information, document or other
material that any Loan Party provides to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein
which is distributed to the Administrative Agent or any Lender by means of electronic communications pursuant to this Section, including
through the Platform.
The Borrower hereby acknowledges
that (a) the Administrative Agent will make available to the Lenders and the Issuing Lender materials and/or information provided
by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials
on the Platform and (b)certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby
agrees that (i) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked
“PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof;
(ii) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent
and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or
its securities for purposes of United States federal and state securities laws (provided, however, that to the extent such
Borrower Materials constitute confidential information, they shall be treated as set forth in Section 9.14); (iii) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public
Investor;” and (iv) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing,
the following Borrower Materials shall be marked “PUBLIC”, unless the Borrower notifies the Administrative Agent promptly
that any such document contains material non-public information: (1) the Loan Documents and (2) notification of changes in the
terms of the Facilities.
Each Public Lender agrees
to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information”
or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance
with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to
make reference to Communications that are not made available through the “Public Side Information” portion of the Platform
and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal
or state securities laws.
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 Loan Documents. Each Lender agrees that receipt of 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 Loan Documents. Each Lender agrees 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 that the foregoing notice may be sent to such e-mail address.
Nothing herein shall prejudice
the right of any Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified
in such Loan Document.
9.3 No
Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of any Agent, the Issuing Lender or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan 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.
9.4 Survival
of Representations and Warranties. All covenants, agreements, representations and warranties made by the Loan Parties herein, in
the other Loan Documents and in the documents, certificates, statements or instruments prepared or delivered in connection with or pursuant
to this Agreement or any other Loan Document shall be considered to have been relied upon by the Agents, the Lenders and the Issuing
Lender and shall survive the making by the Lenders of the Loans and the issuance of Letters of Credit by the Issuing Lender, regardless
of any investigation made by the Agents, the Lenders or the Issuing Lender or on their behalf, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or other amount payable under this Agreement or any other
Loan Document is outstanding and unpaid or any Letter of Credit is outstanding (other than Letters of Credit that have been cash collateralized
or backstopped in a manner reasonably acceptable to the relevant Issuing Lender and the Administrative Agent) and so long as the Commitments
have not been terminated. The provisions of Sections 2.17, 2.18, 2.19 and 9.5 shall remain operative and in full force and effect regardless
of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the
Loans, the expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or unenforceability of any term or provision
of this Agreement or any other Loan Document, or any investigation made by or on behalf of any Agent, the Issuing Lender or any Lender.
9.5 Payment
of Expenses. The Borrower agrees (a) to pay or reimburse the Administrative Agent, the Collateral Agent, the Arrangers and the
Issuing Lender, upon presentation of a reasonably detailed statement for all their reasonable and documented out-of-pocket costs and
expenses, including, without limitation, the reasonable fees and disbursements and other charges of a single New York counsel (provided
that, if the Administrative Agent, the Collateral Agent, the Arrangers and the Issuing Lender (or any of the foregoing) is advised
by counsel that there are actual or perceived conflicts of interest, the Borrower will be required to pay for one additional counsel
for each affected party) and appropriate local or special counsel, incurred in connection with the Transactions, the syndication of the
Commitments and with the development, preparation, negotiation, execution, delivery and administration of this Agreement and the other
Loan Documents, and any amendment, supplement, waiver or modification of the provisions hereof or thereof (whether or not the transactions
hereby or thereby contemplated shall be consummated), and any other documents prepared in connection herewith or therewith, and the consummation
of the transactions contemplated hereby and thereby, including, without limitation, (i) all charges related to the Platform and
(ii) all reasonable expenses incurred by the Issuing Lender in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder, (b) to pay or reimburse the Administrative Agent, the Collateral Agent,
the Issuing Lender and the Lenders (other than any Excluded Lenders), upon presentation of a reasonably detailed statement, for all their
documented costs and expenses, including, without limitation, the fees, disbursements and other charges of counsel, incurred in connection
with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any such other documents (provided
that the Administrative Agent, the Collateral Agent and any Issuing Lender that is an Affiliate of any such Agent shall engage a
single New York counsel unless such Agents and such Issuing Lender (or any of the foregoing) is advised by counsel that there are actual
or perceived conflicts of interest, in which case the Borrower will be required to pay for one additional New York counsel for each affected
party), (c) to pay, and indemnify and hold harmless the Administrative Agent, the Collateral Agent, each Arranger, the Issuing Lender,
each Co-Syndication Agent, each Co-Documentation Agent and each Lender (other than any Excluded Lenders) from any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other taxes, if any,
which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect
of, this Agreement, the other Loan Documents and any such other documents, (d) to pay, and indemnify and hold harmless the Administrative
Agent, the Collateral Agent, each Arranger, the Issuing Lender, each Co-Syndication Agent, each Co-Documentation Agent and each Lender
(other than any Excluded Lender) and each Related Party of any of the foregoing Persons (each, an “Indemnitee”) from
and against any and all liabilities, obligations, losses, damages, penalties, actions, claims, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (including, without limitation, the reasonable fees, disbursements and other charges of a single New
York counsel (provided that, if the Indemnitees (or any of them) are advised by counsel that there are actual or perceived conflicts
of interest, the Borrower will be required to pay for one additional counsel for each affected party) and appropriate local or special
counsel) arising out of, in connection with, as a result of or with respect to (i) the execution, delivery, enforcement, performance
or administration of this Agreement, any other Loan Document or any such other documents or instruments, the performance by the parties
hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the Transactions and the other transactions
contemplated hereby or thereby (including the syndication of the Facilities), (ii) the use of proceeds of the Loans or the use of
the Letters of Credit, (iii) any actual or alleged presence or release of Materials of Environmental Concern on any property currently
or formerly owned or operated by the Borrower or any of its Subsidiaries, or the violation of, noncompliance with or liability under,
any Environmental Law applicable to the operations of the Borrower, any of its Subsidiaries or any of the Properties or (iv) any
claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto (and
regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)
(all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”), provided that the Borrower
shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities
are found by a final and non-appealable judgment of a court of competent jurisdiction to have resulted from (i) the gross negligence
or willful misconduct of such Indemnitee or (ii) a dispute solely among Indemnitees (other than any claim, litigation, investigation
or proceeding against an Indemnitee in its capacity as Arranger, the Administrative Agent or other similar role) that does not involve
any action or inaction by the Borrower or its affiliates and (e) to pay or reimburse the Administrative Agent for any loss, cost
or expense arising from any assignment to an Excluded Lender, except to the extent such losses, costs, or expenses are found by a final
and non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of
the Administrative Agent. No Indemnitee shall be liable for any damages arising from the use by unauthorized persons of information or
other materials sent through electronic, telecommunications or other information transmission systems that are intercepted by such persons,
except to the extent such damages are found by a final and non-appealable judgment of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable
law, the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries
so to waive, all rights for contribution or any other rights of recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have
by statute or otherwise against any Indemnitee. All amounts due under this Section 9.5 shall be payable promptly upon (but in any
event not later than 30 days after) written demand therefor. Statements payable by the Borrower pursuant to this Section shall be
submitted with reasonable supporting detail to the Borrower’s chief financial officer, at the address of the Borrower set forth
in Section 9.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative
Agent (which shall promptly notify each Lender). The agreements in this Section 9.5 shall remain operative and in full force and
effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment
of any of the Loans, the expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent,
the Collateral Agent, any Lender or the Issuing Lender. The agreements in Section 9.5 of the Existing Credit Agreement shall remain
operative and in full force and effect regardless of the execution of this Agreement.
In no event shall any Indemnitee
be liable on any theory of liability for any special, indirect, consequential or punitive damages (including any loss of profits, business
or anticipated savings). The Borrower hereby waives, releases and agrees (and shall cause each other Loan Party to waive, release and
agree) not to sue upon any such claim for any special, indirect, consequential or punitive damages, whether or not accrued and whether
or not known or suspected to exist in its favor.
To the extent that the Borrower
fails to pay any amount required to be paid by it to the Administrative Agent, the Collateral Agent or the Issuing Lender under the immediately
preceding paragraph, each Lender severally agrees to pay to the Administrative Agent, the Collateral Agent or the Issuing Lender, as the
case may be, such Lender’s Aggregate Exposure Percentage (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought and determined as if no Lender were a Defaulting Lender) of such unpaid amount; provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the Collateral Agent or the Issuing Lender in its capacity as such.
9.6 Successors
and Assigns; Participations and Assignments. (ii) This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower
may not assign or transfer any of its rights or obligations under this Agreement or any other Loan Document without the prior written
consent of the Administrative Agent and each Lender (and any attempted such assignment or transfer without such consents shall be null
and void).
(b) Any
Lender may without the consent of, or notice to, the Borrower, any Agent, the Issuing Lender or any Lender, in accordance with applicable
law, at any time sell to one or more banks, financial institutions or other Persons (other than a natural person, an Excluded Lender and,
except as expressly permitted under Section 9.6(i), other than to the Borrower or any of the Borrower’s Subsidiaries or Affiliates)
(each, a “Participant”) participations in all or any portion of such Lender’s rights and/or obligations under
this Agreement and the other Loan Documents (including all or any portion of the Commitments and Loans owing to such Lender); provided
that (i) such Lender’s obligations under this Agreement and the other Loan Documents shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Borrower,
the Agents, the Issuing Lender and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement and the other Loan Documents. For the avoidance of doubt, each Lender shall be responsible
for the indemnity under the last paragraph of Section 9.5 with respect to any payments made by such Lender to its Participant(s).
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 the obligations of the Borrower relating to the Loans or Reimbursement Obligations and to approve any amendment, modification
or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the applicable Participant, agree to any amendment,
modification, waiver or consent to any provisions of the Loan Documents to the extent that such amendment, modification, waiver or consent
would forgive, waive or excuse the principal amount or extend the final scheduled date of maturity of any Loan or Reimbursement Obligation,
or reduce the stated rate of any interest (other than the waiver of default interest) or fee payable hereunder, release all or substantially
all of the Collateral or release all or substantially all of the value of the Subsidiary Guarantors from their guarantee obligations under
the Guarantee and Collateral Agreement, in each case to the extent subject to, or related to, such participation. The Borrower agrees
that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (subject to the requirements and limitations set
forth therein, including the requirements under Section 2.18(e) (it being understood that the documentation under Section 2.18(e) shall
be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant
to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.21
as if it were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment
under Sections 2.17, 2.18 or 2.19, with respect to any participation, than its participating Lender would have been entitled to receive,
unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 9.7 as though it were a Lender; provided that such
Participant agrees to be subject to Section 2.16 as though it were a Lender. For the avoidance of doubt, no assignments (including
assignments of additional Term Loans) may be made to an Excluded Lender. Each Lender that sells a participation shall, acting solely for
this purpose as a non-fiduciary agent of the Borrower, maintain at one or more of its offices 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
rights or obligations under the Loan Documents (each such register, a “Participant Register”); provided that
no Lender shall have any obligation to disclose all or any portion of any Participant Register (including the identity of any Participant
or any information relating to a Participant’s interest in any Loans or other rights or obligations under any Loan Document) to
any Person except to the extent that such disclosure is necessary to establish that such Loan or other right or obligation is in registered
form under Section 5f.103-1(c) of the U.S. Treasury Regulations provided that if any Participant requests compensation under
Section 2.17, 2.18 and 2.19, such Participant shall provide to the Borrower and the Administrative Agent any documentation reasonably
requested by the Borrower or the Administrative Agent. The entries in a 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, (i) the Administrative Agent (in
its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register and (ii) no participations
(including additional participations in Term Loans) may be made to an Excluded Lender.
(c) Any
Lender or participant may, in connection with any assignment or participation or proposed assignment or participation pursuant to this
Section 9.6, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower
furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure of Information or other information
designated by the Borrower as confidential, each such assignee or participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary exceptions) to preserve the confidentiality of such confidential
information on terms no less restrictive than those applicable to the Lenders pursuant to Section 9.14.
(d) Any
Lender (an “Assignor”) may, in accordance with applicable law and upon written notice to the Administrative Agent,
at any time and from time to time assign to any Person (other than a natural person, an Excluded Lender and, except as expressly permitted
under Section 9.6(i), other than to the Borrower or any of the Borrower’s Subsidiaries or Affiliates) (an “Assignee”),
with the consent of the Issuing Lender, the Administrative Agent and the Borrower (which, in each case, shall not be unreasonably withheld
or delayed), all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Assumption, executed by
such Assignee and such Assignor (and, where the consent of the Borrower or any other Person is required pursuant to the foregoing provisions,
by the Borrower and each such other Person) and delivered to the Administrative Agent for its acceptance and recording in the Register;
provided that (i) no such consent of the Issuing Lender need be obtained with respect to any assignment of the Term Loans
and (ii) (A) no such consent of the Borrower shall be required (x) if such assignment is made to another Lender or any
Affiliate or Approved Fund or Control Investment Affiliate thereof, (y) after the occurrence and during the continuance of an Event
of Default under Sections 7(a) or (f) or (z) in the case of assignments during the primary syndication of the Commitments
and Loans, to Persons identified by the Administrative Agent to the Borrower prior to the Closing Date, and (B) the consent of the
Borrower shall be deemed to have been given if the Borrower has not responded within five Business Days of a request for such consent;
provided, further, that no such assignment to an Assignee (other than any Lender or any Affiliate or Approved Fund thereof)
shall be in an aggregate principal amount of less than $2,500,000 with respect to Revolving Credit Loans or Revolving Credit Commitments
and $1,000,000 with respect to Term Loans (other than in the case of an assignment of all of a Lender’s interests under this Agreement),
unless (i) otherwise agreed by the Borrower and the Administrative Agent or (ii) such assignment is one of two or more assignments
being made simultaneously by or to affiliated Assignees or Approved Funds, the sum of the aggregate principal amounts of which is at least
$2,500,000 with respect to Revolving Credit Loans or Revolving Credit Commitments and $1,000,000 with respect to Term Loans. Upon such
execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Assumption,
(x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights
and obligations of a Lender hereunder with a Revolving Credit Commitment and/or Loans and other interests as set forth therein, and (y) the
Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such
Assignor shall cease to be a party hereto except as to Sections 2.17, 2.18, 2.20 and 9.5 in respect of the period prior to such effective
date). Notwithstanding anything to the contrary contained herein, no such assignment shall be made (1) to the Borrower or any of
the Borrower’s Subsidiaries or Affiliates except as expressly permitted under Section 9.6(i) or (2) to any Defaulting
Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons
described in this clause (2).
(e) The
Administrative Agent shall, solely for this purpose acting as an agent of the Borrower, maintain at its address referred to in Section 9.2
a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the
names and addresses of the Lenders and the Revolving Credit Commitment of, and principal amount and stated interest of the Revolving Extensions
of Credit and Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the
owner of the Revolving Extensions of Credit, Term Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement.
Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto
being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by
a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such
Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount
shall be issued to the designated Assignee (to the extent requested by such designated Assignee), and the old Notes shall be returned
by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrower
or any Lender (with respect to any entry relating to such Lender’s Revolving Extensions of Credit and Term Loans) at any reasonable
time and from time to time upon reasonable prior notice.
(f) Upon
its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person
is required by Section 9.6(d), by each such other Person), together with payment to the Administrative Agent of a registration and
processing fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent) and an Administrative
Questionnaire completed in respect of the Assignee (unless the Assignee shall already be a Lender hereunder) and all applicable tax forms,
the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower.
On or prior to such effective date, the Borrower at its own expense, upon request, shall execute and deliver to the Administrative Agent
(in exchange for the Notes of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the Revolving Credit
Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and,
if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, new Notes, as the case
may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may
be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or
Notes replaced thereby.
(g) Any
Lender may 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; provided that no such pledge
or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(h) Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding
vehicle (an “SPC”), 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
SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan,
the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Granting Lender’s and the
Borrower’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, the Granting Lender shall
remain solely responsible for the performance thereof, and the Borrower, the Lenders and the Agents shall continue to deal solely and
directly with such Granting Lender in connection with such Granting Lender’s rights and obligations under this Agreement and the
other Loan Documents. The making of a Loan by an SPC hereunder shall utilize the Revolving Credit 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 SPC 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 indebtedness of any SPC, it will
not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary
in this Section 9.6(g), any SPC may (A) 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
with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any
financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance
of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information
with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. In the event
that the consent of all or any portion of the Lenders is required pursuant to any provision of any Loan Document at a time when any Loan
is held by any SPC, such SPC and the Granting Lender that would otherwise have been obligated to make such Loan shall agree between themselves
as to which of them shall be entitled to grant or withhold any consent applicable to such Loan, but such Granting Lender shall communicate
with the Administrative Agent and the Borrower as to the giving or withholding of such consent, and the parties to the Loan Documents
shall be entitled to rely conclusively on the advice by such Granting Lender as to whether such consent is being granted or withheld.
(i) Notwithstanding
the foregoing, there shall be no assignments or participations to the Borrower or any of its Subsidiaries or Affiliates, except pursuant
to and in accordance with the following: any Lender may assign all or a portion of its Term Loans to the Borrower or any of its Subsidiaries
if (A) such assignment is made pursuant to a bid made in the open market to all Lenders through the Administrative Agent, (B) such
assignment is not financed with the proceeds of any Revolving Credit Loans, (C) after giving effect to such purchase, the amount
of unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries at such time is greater than the outstanding amount of
all Revolving Credit Loans and L/C Obligations then outstanding and (D) any Term Loans so purchased shall be immediately cancelled.
Upon any purchase of Term Loans pursuant to this clause (i), the remaining scheduled repayments of the Term Loans shall be reduced on
a pro rata basis by the principal amount of the Term Loans so purchased and cancelled.
(j) None
of the Lenders, the Arrangers or the Agents shall have any responsibility or liability for monitoring the list or identities of, or enforcing
provisions relating to, Excluded Lenders. Upon request by any Lender, the Administrative Agent shall be permitted to disclose to such
Lender the identity of the Excluded Lenders. Each Lender hereby acknowledges and agrees that the information disclosed to it by the Administrative
Agent pursuant to the immediately preceding sentence shall be subject in all respects to the provisions set forth in Section 9.14.
9.7 Adjustments;
Set-off. (i) Subject to the express provisions of this Agreement which require, or permit, differing payments to be made to
Non-Defaulting Lenders as opposed to Defaulting Lenders, and other than with respect to any substituted Lender in accordance with Section 2.22
or as required or permitted under Section 2.20, 9.6(i) or 9.21, if any Lender (a “Benefited Lender”) shall
at any time receive any payment of all or part of the Obligations owing to it, 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 7(f), or otherwise),
in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the Obligations owed
to such other Lender, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of
the Obligations owed to each such other Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall
be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders;
provided, however, that (i) 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, and (ii) the provisions of this Section 9.7 shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or Commitments to any assignee or participant, other than to the
Borrower or any of its Subsidiaries or Affiliates (as to which the provisions of this Section 9.7 shall apply), made pursuant to
and in accordance with the express provisions of this Agreement. The Borrower expressly consents to the foregoing arrangements and agrees
that any Lender holding a participation in a Loan or Reimbursement Obligation deemed to have been so purchased may exercise any and all
rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender by reason
thereof as fully as if such Lender had made a Loan directly to the Borrower in the amount of such participation.
(b) In
addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted by applicable law, while an Event of Default shall be continuing,
upon any amount becoming due and payable by the Borrower 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),
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 Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application
made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application;
provided, further, that in the event that any Defaulting Lender shall exercise any such right of setoff, (i) all amounts
so set-off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.31
and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit
of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement
describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of set-off.
9.8 Counterparts.
This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of
this Agreement or of a Lender Addendum by facsimile transmission or in electronic (e.g., “pdf” or “tif”) format
shall be effective as delivery of a manually executed counterpart hereof. The words “execution,” “signed,” “signature,”
and words of like import in any Assignment and Assumption 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.
9.9 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.
9.10 Integration.
This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Agents, represent the
entire agreement of the Borrower, the Agents, the Arrangers, the Issuing Lender and the Lenders with respect to the subject matter hereof
and thereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof
and thereof. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any Person (other
than the parties hereto and thereto, their respective successors and assigns permitted hereunder (including any Affiliate of the Issuing
Lender that issues any Letter of Credit) and, to the extent expressly contemplated hereby or thereby, the Related Parties of each of
the Administrative Agent, the Collateral Agent, the Issuing Lender and the Lenders) any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
9.11 GOVERNING
LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM,
CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) OR THE TRANSACTIONS CONTEMPLATED HEREBY
AND THEREBY (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN SUCH OTHER LOAN DOCUMENTS), 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 SHALL BE CONSTRUED
IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS
AND PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL
CHAMBER OF COMMERCE (THE “UNIFORM CUSTOMS”) AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE
LAWS OF THE STATE OF NEW YORK.
9.12 Submission
To Jurisdiction; Waivers. The Borrower hereby irrevocably and unconditionally:
(a) submits
for itself and its Property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a
party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State
of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any
thereof;
(b) consents
that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees
that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the Borrower at its address set forth in Section 9.2 or at such other
address of which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees
that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
(e) agrees
that it shall not assert, and hereby 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 or in Section 9.5 any special, exemplary, indirect, punitive or consequential
damages.
9.13 No
Fiduciary Duty. The Administrative Agent, the Collateral Agent, each Co-Syndication Agent, each Co-Documentation Agent, each Arranger,
each Lender and their respective Affiliates (collectively, solely for purposes of this Section 9.13, the “Lender Parties”),
may have economic interests that conflict with those of the Loan Parties, their respective stockholders and/or their respective Affiliates.
Each Loan Party agrees that nothing in this Agreement, any of the other Loan Documents or any of the transactions contemplated hereby
or thereby (or the process leading thereto) will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other
implied duty between any Lender Party, on the one hand, and such Loan Party, its stockholders or its Affiliates, on the other. The Loan
Parties acknowledge and agree that (a) the transactions contemplated by the Loan Documents (including, without limitation, the exercise
of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lender Parties, on the one
hand, and the Loan Parties, on the other, and (b) in connection therewith and with the process leading thereto, (i) no Lender
Party has assumed an advisory or fiduciary responsibility in favor of any Loan Party, its stockholders 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 Party has advised, is currently advising or will advise any Loan Party, its stockholders or its Affiliates on other
matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (ii) each
Lender Party is acting solely as principal and not as the agent or fiduciary of any Loan Party, its management, stockholders, creditors
or any other Person. Each Loan Party acknowledges and agrees that (A) 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 the negotiation, execution
and delivery of this Agreement and the other Loan Documents, the transactions contemplated by the Loan Documents and the process leading
thereto, and (B) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Arrangers, the Agents, the Issuing Lender and the Lenders or among the Borrower and any of the foregoing.
Each Loan Party agrees that it will not claim that any Lender Party has rendered advisory services of any nature or respect, or owes
a fiduciary or similar duty to such Loan Party, in connection with such transaction or the process leading thereto.
9.14 Confidentiality.
Each of the Agents, the Issuing Lender and each of the Lenders agrees to keep confidential all information provided to it by any Loan
Party pursuant to this Agreement that is designated by such Loan Party as confidential; provided that nothing herein shall prevent
any Agent, the Issuing Lender or any Lender from disclosing any such information (a) to any Arranger, any Agent, any other Lender
or any Affiliate or Approved Fund of any thereof that agrees to comply with the provisions of this Section 9.14 or with provisions
substantially similar to those included in this Section 9.14, (b) to any Participant, or Assignee, or pledgee of interests
hereunder (each, a “Transferee”) or prospective Transferee that agrees to comply with the provisions of this Section 9.14
or with provisions substantially similar to those included in this Section 9.14, (c) to any of its employees, directors, trustees,
agents, attorneys, accountants and other professional advisors, including any numbering, administration and settlement service providers,
who are, or are expected to be, engaged in evaluating, approving, structuring or administering this Agreement or otherwise on a “need-to-know
basis” if reasonably incidental to the administration of this Agreement (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such information and instructed to keep such information confidential, and each
Agent, each Issuing Lender and each Lender shall be responsible for any breach hereof by such Agent’s, such Issuing Lender’s
or such Lender’s, as applicable, employees, directors, trustees, agents, attorneys, accountants and other professional advisors),
(d) to any financial institution that is a direct or indirect contractual counterparty in swap agreements or such contractual counterparty’s
professional advisor (so long as such contractual counterparty or professional advisor to such contractual counterparty agrees to be
bound by the provisions of this Section 9.14 or with provisions substantially similar to those included in this Section 9.14),
(e) upon the request or demand of any Governmental Authority (including, without limitation, bank regulatory authorities) having
jurisdiction over it, (f) pursuant to any order of any court or other Governmental Authority (including, without limitation, bank
regulatory authorities) or as may otherwise be required pursuant to any Requirement of Law, (g) in connection with any litigation
or similar proceeding, (h) that has been publicly disclosed other than in breach of this Section, (i) to the National Association
of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information
about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, (j) in connection with
the exercise of any remedy hereunder or under any other Loan Document or (k) with the prior written consent of the Borrower; provided
that, in the case of disclosure pursuant to clauses (f) and (g) above (other than in connection with any routine audit
or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority),
to the extent not prohibited by law, such Person agrees to provide prompt written notice thereof to the Borrower.
9.15 Release
of Collateral Security and Guarantee Obligations. Each Secured Party hereby further authorizes the Collateral Agent, on behalf of
and for the benefit of Secured Parties, to be the agent for and representative of the Secured Parties with respect to the guarantee contained
in, and the Liens granted (or purported to be granted) upon the Collateral pursuant to, the Guarantee and Collateral Agreement and the
other Security Documents, and with respect to the exercise by the Collateral Agent (or its sub-agents or designees) of any rights and
remedies with respect to the Collateral as provided in the Loan Documents; provided that no Agent shall owe any fiduciary duty,
duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of Borrower Foreign Letter of Credit
Obligations or Borrower Hedge Agreement Obligations (as such terms are defined in the Guarantee and Collateral Agreement). Subject to
Section 9.1, 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 (i) in connection with a sale or disposition of assets
permitted by this Agreement, release any Lien encumbering any item of Collateral that is the subject of such sale or other disposition
of assets or to which the Required Lenders (or such other Lenders as may be required to give such consent under Section 9.1) have
otherwise consented, (ii) release any Subsidiary Guarantor from its guarantee pursuant to the Guarantee and Collateral Agreement
(including in connection with a transaction permitted by this Agreement) or with respect to which the Required Lenders (or such other
Lenders as may be required to give such consent under Section 9.1) have otherwise consented or (iii) enter into 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 agreements, including a Pari Passu Intercreditor Agreement and the Second
Lien Intercreditor Agreement.
(a) Notwithstanding
anything contained to the contrary contained in any of the Loan Documents, the Borrower, the Administrative Agent, the Collateral Agent
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 contained in, or the Lien upon the Collateral granted (or purported to be granted) pursuant to, the Guarantee
and Collateral Agreement, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the
Administrative Agent, on behalf of the Lenders 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 Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the 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.
(b) No
Permitted Foreign Currency Letter of Credit, no Specified Cash Management Agreement and no Specified Hedge Agreement will create (or be
deemed to create) in favor of any Foreign Currency L/C Issuing Lender that is the issuer thereof, Cash Management Bank that is a party
thereto or Qualified Counterparty that is a party thereto, as applicable, any rights in connection with the management or release of any
Collateral or of the obligations of any Subsidiary Guarantor under the Loan Documents except as expressly provided in Section 9.1
and Section 8.15 of the Guarantee and Collateral Agreement. By accepting the benefits of the Collateral, each Foreign Currency L/C
Issuing Lender, each Cash Management Bank and each Qualified Counterparty shall be deemed to have appointed the Collateral Agent as its
agent and agreed to be bound by the Loan Documents as a Secured Party, subject to the limitations set forth in this Section 9.15.
(c) Notwithstanding
anything to the contrary contained herein or any other Loan Document, when all Obligations have been paid in full (other than contingent
obligations in respect of which no assertion of liability (whether oral or written) and no claim or demand for payment (whether oral or
written) has been made (and, in the case of Obligations for indemnification, no notice for indemnification has been issued by the indemnitee)
at such time), all Commitments have terminated or expired and no Letter of Credit shall be outstanding (other than Letters of Credit that
have been cash collateralized or backstopped in a manner reasonably acceptable to the relevant Issuing Lender and the Administrative Agent),
the security interest in all Collateral and the guarantee obligations provided for in any Loan Document shall automatically terminate
and be released and, upon the request of the Borrower, the Collateral Agent shall (without notice to, or vote or consent of, any Secured
Party) take such actions as shall be required to release its security interest in all Collateral, and to release all guarantee obligations
provided for in any Loan Document.
9.16 Accounting
Changes. In the event that any “Accounting Change” (as defined below) shall occur and such change results in a change
in the method of calculation of financial covenants, standards or terms in this Agreement, then the Borrower and the Administrative Agent
agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Change
with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such Accounting
Change as if such Accounting Change had not been made. Until such time as such an amendment shall have been executed and delivered by
the Borrower, the Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement shall
continue to be calculated or construed as if such Accounting Change had not occurred. “Accounting Change” refers to any change
in GAAP or in any other accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC.
9.17 [Reserved.]
9.18 WAIVERS
OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.18.
9.19 Lender
Action. Each Lender and each Issuing Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise,
for any right or remedy against any Loan Party or any other obligor under any of the Loan Documents (including the exercise of any right
of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings,
or otherwise commence any remedial procedures, with respect to any Collateral or any other property of any such Loan Party, unless expressly
provided for herein or in any other Loan Document, without the prior written consent of the Administrative Agent. The provisions of this
Section 9.19 are for the sole benefit of the Lenders and the Issuing Lenders and shall not afford any right to, or constitute a
defense available to, any Loan Party.
9.20 USA
PATRIOT Act Notice. Each Lender subject to the USA PATRIOT Act, the Issuing Lender, the Administrative Agent and the Collateral Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower and each other Loan Party that pursuant to the requirements
of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrower and each other Loan Party,
which information includes the name and address of the Borrower and other information that will allow such Lender, the Issuing Lender,
the Administrative Agent or the Collateral Agent, as applicable, to identify the Borrower and each other Loan Party in accordance with
the USA PATRIOT Act.
9.21 Loan
Modification Offers. (i)The Borrower may at any time and from time to time request that all or a portion of the Tranche B-4-5
Term Loans or Other Term Loans (an “Existing Tranche”) be converted to extend the scheduled maturity date(s) of
any payment or payments of principal (including at final maturity) with respect to such Tranche B-4-5
Term Loans or Other Term Loans (any such Tranche B-4-5
Term Loans or Other Term Loans which have been so converted, “Extended Term Loans”) and to provide for
other terms consistent with this Section 9.21; provided that no more than two scheduled maturity dates in respect of any
Loans may occur during any fiscal year of the Borrower. In order to establish Extended Term Loans, the Borrower shall provide written
notice to the Administrative Agent (who shall provide a copy of such written notice to each of the Lenders under the applicable Existing
Tranche) (each, a “Loan Modification Offer”) setting forth the terms and conditions of the Extended Term Loans to
be established (which shall be identical in all material respects to the Tranche B-4-5
Term Loans or Other Term Loans, as the case may be, under the Existing Tranche from which such Extended Term Loans are to
be converted except that (i) all or any of the scheduled amortization payments of principal and payment at maturity of the Extended
Term Loans may be delayed to later dates than the scheduled amortization payments of principal and payment at maturity of the Tranche
B-4-5
Term Loans or Other Term Loans, as the case may be, of such Existing Tranche, in each case to the extent provided in such Loan Modification
Offer, (ii) the Applicable Margin, the Term SOFR “floor” set forth in the definition of Term SOFR and/or fees payable
with respect to the Extended Term Loans may be different from the same provisions for the Tranche B-4-5
Term Loans of such Existing Tranche, in each case, to the extent provided in the Loan Modification Offer, (iii) any Extended
Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary
or mandatory prepayments hereunder, in each case as specified in the respective Loan Modification Offer, and (iv) the Loan Modification
Offer may provide for other covenants and terms (A) that apply solely to any period after the latest final maturity of the Term
Loans and Term Loan Commitments in effect on the effective date of the Loan Modification Offer immediately prior to the establishment
of such Extended Term Loans, or after approval thereof by the Required Lenders or (B) that are less favorable to the holders of
the Extended Term Loans than the covenants and terms applicable to the Existing Tranche). The Borrower shall provide the applicable Loan
Modification Offer at least five Business Days prior to the date on which Lenders are requested to respond. Each Lender under the applicable
Existing Tranche shall be afforded a pro rata opportunity to participate in any Loan Modification Offer (subject to notice and conditions
to be agreed by the Borrower and the Administrative Agent in their reasonable discretion). No Lender shall have any obligation to agree
to have any of its Term Loans of any Existing Tranche converted into Extended Term Loans pursuant to any Loan Modification Offer. Any
Lender wishing to have all or a portion of its Term Loans of the applicable Existing Tranche subject to such Loan Modification Offer
converted into Extended Term Loans (each such Lender, an “Extending Term Lender”) shall notify the Administrative
Agent in writing (an “Extension Election”) on or prior to the date specified in such Loan Modification Offer of the
amount of its Term Loans of the applicable Existing Tranche which it has elected to request be converted into Extended Term Loans (subject
to any minimum denomination requirements set forth in such Loan Modification Offer). In the event that the aggregate amount of Term Loans
of the applicable Existing Tranche subject to Extension Elections exceeds the amount of Extended Term Loans requested pursuant to the
Extension Request, Term Loans of the applicable Existing Tranche subject to Extension Elections shall be converted to Extended Term Loans
on a pro rata basis based on the amount of Term Loans of the applicable Existing Tranche included in each such Extension Election.
(b) The
Borrower and any one or more Revolving Credit Lenders may from time to time agree that such Revolving Credit Lenders will establish Revolving
Credit Commitments through the conversion of a previously established Revolving Credit Commitment of any such Revolving Credit Lender
to an Extended Revolving Credit Commitment of such Lender (any Revolving Credit Commitments being established in accordance with this
Section 9.21(b) an “Extended Revolving Credit Commitment”, which for the avoidance of doubt, shall also be
a Revolving Credit Commitment) by executing and delivering to the Administrative Agent a notice (a “Revolving Extension Notice”;
each Revolving Extension Notice and each Loan Modification Offer being an “Extension”) specifying (i) the amount
of Extended Revolving Credit Commitments established thereby, (ii) the Revolving Credit Termination Date for such Extended Revolving
Credit Commitments; provided that the Revolving Credit Termination Date for any Extended Revolving Credit Commitments shall in
no event be earlier than the Revolving Credit Termination Date for the Revolving Credit Commitments established on the Closing Date and
there shall not be more than three Revolving Credit Termination Dates in effect at any time, (iii) the Applicable Margin for Revolving
Credit Loans and fees in respect of participations in Letters of Credit pursuant to such Extended Revolving Credit Commitments and the
commitment fee payable with respect to such Extended Revolving Credit Commitments; provided that (A) in no event shall there
be more than three Applicable Margins in effect in the aggregate for all Revolving Credit Commitments at any time and (B) either
(x) the Applicable Margins for Revolving Credit Loans, fees in respect of participations in Letters of Credit and the commitment
fee for all Revolving Credit Commitments that have the same Revolving Credit Termination Date shall be the same (although different upfront
fees may be paid by Borrower) or (y) the maximum number of Revolving Credit Termination Dates permitted to be in effect at any time
shall be reduced by the number of such different Applicable Margins and fees in excess of one applicable to Revolving Credit Commitments
with the same Revolving Termination Date, and (iv) whether clause (ii) above shall be amended to provide that future Extended
Revolving Credit Commitments may not have a Revolving Credit Termination Date prior to the Revolving Credit Termination Date for such
Extended Revolving Credit Commitments. Except as set forth above, the terms of the Extended Revolving Credit Commitments shall be identical
in all material respects to the Revolving Credit Commitments established on the Closing Date. No Lender shall have any obligation to participate
in any increase described in this paragraph unless it agrees to do so in its sole discretion, provided that all Revolving Credit
Lenders shall be afforded a pro rata opportunity to participate in any Extensions (subject to notice and conditions to be agreed by Borrower
and the Administrative Agent in their reasonable discretion). On each date on which Extended Revolving Credit Commitments are established,
each Revolving Credit Lender shall purchase at par from and/or sell at par to each of the other Revolving Credit Lenders such portions
of the outstanding Revolving Credit Loans, if any, as may be specified by the Administrative Agent so that, immediately following such
purchases, all SOFR Loans and all Base Rate Loans that are Revolving Credit Loans shall be held by the Revolving Credit Lenders on a pro
rata basis in accordance with their respective Revolving Credit Percentages.
(c) No
consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than (i) the consent of each
Term Lender agreeing to a Loan Modification Offer as evidenced by its delivery of an Extension Election, (ii) the consent of each
Revolving Credit Lender agreeing to an Extended Revolving Credit Commitment as evidenced by its execution of a Revolving Extension Notice
and (iii) with respect to the establishment of any Extended Revolving Credit Commitment, the consent of the Issuing Lender and the
Administrative Agent. All Extended Term Loans, Extended Revolving Credit Commitments and all obligations in respect thereof shall be Obligations
under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other applicable Obligations
under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments
to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to establish new tranches or sub-tranches
in respect of Revolving Credit Commitments or Term Loans so extended and such technical amendments as may be necessary or appropriate
in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches,
in each case on terms consistent with this Section 9.21 (and the Administrative Agent is hereby directed to enter into any such amendments).
Without limiting the foregoing, in connection with the establishment of any Extended Term Loans or Extended Revolving Credit Commitments,
the respective Loan Parties shall (at their sole expense) amend (and the Administrative Agent is hereby authorized and directed to amend)
any applicable Security Document that has a maturity date prior to the then latest maturity date of any Extended Term Loans or Extended
Revolving Credit Commitments so that such shorter maturity date is extended to the then latest maturity date (or such later date as may
be advised by counsel to the Administrative Agent).
9.22 Usury
Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged with respect to any of the Obligations,
including all charges or fees in connection therewith deemed in the nature of interest under applicable law shall not exceed the Highest
Lawful Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the
Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total
amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set
forth in this Agreement had at all times been in effect. In addition, if when the Loans made hereunder are repaid in full the total interest
due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by
law, the Borrower shall pay to the Administrative Agent an amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the foregoing,
it is the intention of the Lenders and the Borrower to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts
for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall
be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans
made hereunder or be refunded to the Borrower.
9.23 Effect
of Restatement. This Agreement shall, except as otherwise expressly set forth herein, supersede the Existing Credit Agreement from
and after the Restatement Date and from and after the Restatement Funding Date with respect to the Loans and Letters of Credit outstanding
under the Existing Credit Agreement as of the Restatement Date and as of the Restatement Funding Date. The parties hereto acknowledge
and agree, however, that (a) this Agreement and all other Loan Documents executed and delivered herewith do not constitute a novation,
payment and reborrowing or termination of the Obligations (under and as defined in the Existing Credit Agreement) and the other Loan
Documents as in effect prior to the Restatement Date except as expressly provided for in the Amendment Agreement and as contemplated
by Section 3.16 hereof and (b) such Obligations are in all respects continuing (except as expressly provided for in
the Amendment Agreement and as contemplated by Section 3.16 hereof) with only the terms being modified as provided in this
Agreement and the other Loan Documents. The parties hereto further acknowledge and agree that (i) the liens and security interests
in favor of the Collateral Agent for the benefit of the Secured Parties securing payment of the Obligations (under and as defined in
the Existing Credit Agreement) are in all respects continuing and in full force and effect with respect to all Obligations and (ii) all
references in the other Loan Documents to the Existing Credit Agreement shall be deemed to refer without further amendment to this Agreement.
In addition, unless specifically amended hereby, each of the Loan Documents and Exhibits and Schedules to the Existing Credit Agreement
shall continue in full force and effect and, if applicable, in the forms attached to the Existing Credit Agreement, and with the effect
that from and after the Restatement Date all references therein shall be references to this Agreement.
9.24 Acknowledgement
and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any
other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected
Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and
conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-in Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any
other Loan Document; or
(iii) the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution
Authority.
9.25 Acknowledgement
Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedge
Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and, each such QFC,
a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal
Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer
Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect
of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported
QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United
States), in the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject
to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support
(and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such
Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective
under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights
in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act
Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents
that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted
to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported
QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the
foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event
affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
[Signature
Pages FollowEnd of Document]
Exhibit 99.1
B&G Foods
Announces Closing of Tack-on Offering of Senior Secured Notes and Credit Agreement Refinancing
PARSIPPANY, N.J., July 12, 2024 —
B&G Foods, Inc. (NYSE: BGS) announced today that it has completed its previously announced tack-on offering of 8.000% senior secured
notes due 2028 and credit agreement refinancing.
Closing of Tack-on Offering of Senior
Secured Notes
On July 12, 2024, B&G Foods completed
its offering of an additional $250.0 million aggregate principal amount of 8.000% senior secured notes due 2028 in a transaction exempt
from registration under the Securities Act of 1933, as amended. The new senior secured notes were issued at a price of 100.5% of their
face value plus accrued and unpaid interest from March 15, 2024 to, but excluding, the closing date. The new senior secured notes constitute
an additional issuance of senior secured notes under the indenture, dated as of September 26, 2023, governing B&G Foods’ previously
issued 8.000% senior secured notes due 2028. Following completion of the tack-on offering, approximately $799.3 million of 8.000% senior
secured notes due 2028 are outstanding.
B&G Foods used the net proceeds
of the new senior secured notes offering to repay a portion of B&G Foods’ tranche B term loans and revolving credit loans
under its senior secured credit agreement and to pay related fees and expenses.
The new senior secured notes are guaranteed
on a senior secured basis by certain domestic subsidiaries of B&G Foods (that guarantee B&G Foods’ senior secured credit
agreement, existing senior secured notes and existing senior unsecured notes). The new senior secured notes are secured by a first-priority
security interest in certain collateral, which generally includes most of B&G Foods’ and the guarantors’ right or interest
in or to property of any kind, except for real property and certain intangible assets, and which collateral also secures B&G Foods’
senior secured credit agreement and existing senior secured notes on a pari passu basis.
The new senior secured notes and related
guarantees were offered only to persons reasonably believed to be qualified institutional buyers in reliance on an exemption from registration
pursuant to Rule 144A under the Securities Act, and to certain non-U.S. persons in transactions outside of the United States in reliance
on Regulation S under the Securities Act. The new senior secured notes and the related guarantees have not been and will not be registered
under the Securities Act, any state securities laws or the securities laws of any other jurisdiction. Accordingly, the new senior secured
notes and the related guarantees may not be offered or sold in the United States absent registration or an applicable exemption from
the registration requirements of the Securities Act and any applicable securities laws of any state or other jurisdiction.
Closing of Credit Agreement Refinancing
Also on July 12, 2024, B&G
Foods completed the refinancing of its senior secured credit agreement. As part of the refinancing and together with a portion of
the net proceeds of the tack-on offering, B&G Foods reduced the aggregate principal amount of tranche B term loans outstanding
from $507.3 million to $450.0 million by replacing $507.3 million of outstanding tranche B term loans with $450.0 million of new
tranche B term loans. B&G Foods also extended the maturity date for the tranche B term loans from October 10, 2026 to October
10, 2029. The new tranche B term loans were issued at a price equal to 99.00% of their face value. The new tranche B term loans will
bear interest based on alternative rates that B&G Foods may choose, including a base rate per annum plus an applicable margin of
2.50%, and SOFR plus an applicable margin of 3.50%.
As part of the refinancing, B&G
Foods also prepaid $175.0 million aggregate principal amount of revolving credit loans with a portion of the proceeds of the tack-on
offering, decreased the revolver capacity under the senior secured credit agreement from $800.0 million to $475.0 million aggregate principal
amount, and extended the maturity date of its revolving credit facility from December 16, 2025 to December 16, 2028. Following the refinancing,
interest under the revolving credit facility, including any outstanding letters of credit, will be determined based on alternative rates
that B&G Foods may choose in accordance with the credit agreement, including a base rate per annum plus an applicable margin ranging
from 0.50% to 1.00%, and SOFR plus an applicable margin ranging from 1.50% to 2.00%, in each case depending on B&G Foods’ consolidated
leverage ratio. As of July 12, 2024, $30.0 million aggregate principal amount of revolving credit loans remain outstanding.
This press release is for informational
purposes only and does not constitute an offer to sell or a solicitation of an offer to buy securities, including without limitation,
the new senior secured notes and the related guarantees, nor shall there be any sale of securities, including without limitation, the
new senior secured notes and the related guarantees, in any state or jurisdiction in which the offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such state or jurisdiction.
About B&G Foods, Inc.
Based in Parsippany, New Jersey, B&G Foods
and its subsidiaries manufacture, sell and distribute high-quality, branded shelf-stable and frozen foods across the United States, Canada
and Puerto Rico. With B&G Foods’ diverse portfolio of more than 50 brands you know and love, including B&G,
B&M, Bear Creek, Cream of Wheat, Crisco, Dash, Green Giant, Las Palmas,
Le Sueur, Mama Mary’s, Maple Grove Farms, New York Style, Ortega,
Polaner, Spice Islands and Victoria, there’s a little something for everyone.
Forward-Looking Statements
Statements in this press release
that are not statements of historical or current fact constitute “forward-looking statements.” Such forward-looking statements
involve known and unknown risks, uncertainties and other unknown factors that could cause the actual results of B&G Foods to be materially
different from the historical results or from any future results expressed or implied by such forward-looking statements. In addition
to statements that explicitly describe such risks and uncertainties, readers are urged to consider statements labeled with the terms
“believes,” “belief,” “expects,” “projects,” “intends,” “anticipates,”
“assumes,” “could,” “should,” “estimates,” “potential,” “seek,”
“predict,” “may,” “will” or “plans” and similar references to future periods to be uncertain
and forward-looking. Factors that may affect actual results include, without limitation: B&G Foods’ substantial leverage; the
effects of rising costs for and/or decreases in supply of B&G Foods’ commodities, ingredients, packaging, other raw materials,
distribution and labor; crude oil prices and their impact on distribution, packaging and energy costs; B&G Foods’ ability to
successfully implement sales price increases and cost saving measures to offset any cost increases; intense competition, changes in consumer
preferences, demand for B&G Foods’ products and local economic and market conditions; B&G Foods’ continued ability
to promote brand equity successfully, to anticipate and respond to new consumer trends, to develop new products and markets, to broaden
brand portfolios in order to compete effectively with lower priced products and in markets that are consolidating at the retail and manufacturing
levels and to improve productivity; the ability of B&G Foods and its supply chain partners to continue to operate manufacturing facilities,
distribution centers and other work locations without material disruption, and to procure ingredients, packaging and other raw materials
when needed despite disruptions in the supply chain or labor shortages; the impact pandemics or disease outbreaks, such as the COVID-19
pandemic, may have on B&G Foods’ business, including among other things, B&G Foods’ supply chain, manufacturing operations
or workforce and customer and consumer demand for B&G Foods’ products; B&G Foods’ ability to recruit and retain senior
management and a highly skilled and diverse workforce at B&G Foods’ corporate offices, manufacturing facilities and other locations
despite a very tight labor market and changing employee expectations as to fair compensation, an inclusive and diverse workplace, flexible
working and other matters; the risks associated with the expansion of B&G Foods’ business; B&G Foods’ possible inability
to identify new acquisitions or to integrate recent or future acquisitions or B&G Foods’ failure to realize anticipated revenue
enhancements, cost savings or other synergies from recent or future acquisitions; B&G Foods’ ability to successfully complete
the integration of recent or future acquisitions into B&G Foods’ enterprise resource planning (ERP) system; tax reform and
legislation, including the effects of the Infrastructure Investment and Jobs Act, U.S. Tax Cuts and Jobs Act and the U.S. CARES Act,
and future tax reform or legislation; B&G Foods’ ability to access the credit markets and B&G Foods’ borrowing costs
and credit ratings, which may be influenced by credit markets generally and the credit ratings of B&G Foods’ competitors; unanticipated
expenses, including, without limitation, litigation or legal settlement expenses; the effects of currency movements of the Canadian dollar
and the Mexican peso as compared to the U.S. dollar; the effects of international trade disputes, tariffs, quotas, and other import or
export restrictions on B&G Foods’ international procurement, sales and operations; future impairments of B&G Foods’
goodwill and intangible assets; B&G Foods’ ability to protect information systems against, or effectively respond to, a cybersecurity
incident, other disruption or data leak; B&G Foods’ ability to successfully implement B&G Foods’ sustainability initiatives
and achieve B&G Foods’ sustainability goals, and changes to environmental laws and regulations; and other factors that affect
the food industry generally, including: recalls if products become adulterated or misbranded, liability if product consumption causes
injury, ingredient disclosure and labeling laws and regulations and the possibility that consumers could lose confidence in the safety
and quality of certain food products; competitors’ pricing practices and promotional spending levels; fluctuations in the level
of B&G Foods’ customers’ inventories and credit and other business risks related to B&G Foods’ customers operating
in a challenging economic and competitive environment; and the risks associated with third-party suppliers and co-packers, including
the risk that any failure by one or more of B&G Foods’ third-party suppliers or co-packers to comply with food safety or other
laws and regulations may disrupt B&G Foods’ supply of raw materials or certain finished goods products or injure B&G Foods’
reputation. The forward-looking statements contained herein are also subject generally to other risks and uncertainties that are described
from time to time in B&G Foods’ filings with the Securities and Exchange Commission, including under Item 1A, “Risk Factors”
in B&G Foods’ most recent Annual Report on Form 10-K and in its subsequent reports on Forms 10-Q and 8-K. Investors are cautioned
not to place undue reliance on any such forward-looking statements, which speak only as of the date they are made. B&G Foods undertakes
no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise.
Contacts:
Investor
Relations:
ICR, Inc.
Anna Kate Heller
bgfoodsIR@icrinc.com |
Media
Relations:
ICR, Inc.
Matt Lindberg
Matthew.Lindberg@icrinc.com |
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B and G Foods (NYSE:BGS)
過去 株価チャート
から 7 2024 まで 8 2024
B and G Foods (NYSE:BGS)
過去 株価チャート
から 8 2023 まで 8 2024