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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):
January 3, 2024
OMNICOM GROUP INC.
(Exact Name of Registrant as Specified in its
Charter)
New York |
|
1-10551 |
|
13-1514814 |
(State or other jurisdiction |
|
(Commission File Number) |
|
(IRS Employer |
of incorporation) |
|
|
|
Identification No.) |
280 Park Avenue, New York, NY |
|
10017 |
(Address of principal executive offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (212) 415-3600
Not Applicable
(Former name or former address, if changed
since last report)
Check the appropriate box below if
the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions
(see General Instruction A.2. below):
| ☐ | Written communications pursuant
to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each
class |
|
Trading Symbol |
|
Name of each
exchange on
which registered |
Common Stock, par value $0.15 per share |
|
OMC |
|
New York Stock Exchange |
0.800% Senior Notes due 2027 |
|
OMC/27 |
|
New York Stock Exchange |
1.400% Senior Notes due 2031 |
|
OMC/31 |
|
New York Stock Exchange |
2.250% Senior Notes due 2033 |
|
OMC/33 |
|
New York Stock Exchange |
Indicate by check mark whether
the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On January 3, 2024 (the “Effective
Date”), Omnicom Group Inc. (“Omnicom Group”) and its wholly owned subsidiary Omnicom Capital Inc. (the “Borrower”
and, together with Omnicom Group, the “Loan Parties”) entered into a Delayed Draw Term Loan Agreement (the “Credit Agreement”)
with the initial lenders named therein (the “Lenders”), Citibank, N.A., BofA Securities, Inc., Barclays Bank PLC, BNP Paribas
Securities Corp., Deutsche Bank Securities Inc., HSBC Securities (USA), Inc., JPMorgan Chase Bank, N.A., Mizuho Bank, Ltd., Société
Générale, Sumitomo Mitsui Banking Corporation, TD Securities (USA), LLC, U.S. Bank National Association and Wells Fargo
Securities, LLC, as lead arrangers and book managers, and Citibank, N.A., as administrative agent for the Lenders (the “Agent”).
The Credit Agreement has a maturity date of December 31, 2026 and provides for a delayed-draw term loan facility in an aggregate principal
amount of US$600,000,000. On the Effective Date, the Borrower did not borrow any funds under the Credit Agreement. Borrowings under the
Credit Agreement, if drawn, may be used by the Loan Parties for general corporate purposes of the Borrower and its subsidiaries, including,
without limitation, to fund acquisitions not prohibited under the Credit Agreement.
Subject to certain customary
conditions, the Borrower may draw on the funds under the Credit Agreement from time to time in up to three draws, in each case, in a minimum
amount of US$5,000,000 and integral multiples of US$1,000,000 in excess thereof, which may be made on or prior to the earliest of (i)
the date of the third such draw, (ii) July 15, 2024 and (iii) the date of termination in whole of the commitments under the Credit Agreement
(such earliest date, the “Commitment Termination Date”). Borrowings under the Credit Agreement are prepayable at the Borrower’s
option in whole or in part, subject to certain minimum amounts, without premium or penalty. Amounts borrowed under the Credit Agreement
may not be reborrowed once prepaid or repaid. Interest on the borrowings under the Credit Agreement is payable at a base rate or a term
rate, in either case, plus an applicable margin and fees. In addition, the Borrower will pay to each Lender a ticking fee on the amount
of such Lender’s unused commitment from the Effective Date until the Commitment Termination Date at a rate per annum equal to an
amount between 6.0 and 17.5 basis points, depending on Omnicom Group’s long-term debt credit rating, payable in arrears quarterly.
The terms of the Credit Agreement
include representations and warranties, affirmative and negative covenants (including certain financial covenants) and events of default
that are customary for credit facilities of this nature. Upon the occurrence, and during the continuance, of an event of default, including
but not limited to nonpayment of principal when due, nonpayment of interest within five business days after it becomes due, failure to
perform or observe certain terms, covenants or agreements under the Credit Agreement, and certain defaults of other indebtedness, the
Agent may terminate the obligation of the Lenders under the Credit Agreement to make advances and declare any outstanding obligations
under the Credit Agreement immediately due and payable. In addition, in the event of an actual or deemed entry of an order for relief
with respect to either of the Loan Parties under the Federal Bankruptcy Code, the obligation of the Lenders to make advances shall automatically
terminate and any outstanding obligations under the Credit Agreement shall immediately become due and payable.
The obligations of the Borrower
under the Credit Agreement are guaranteed by Omnicom Group.
The foregoing description of
the Credit Agreement does not purport to be a complete statement of the parties’ rights and obligations under the Credit Agreement
and the transactions contemplated by the Credit Agreement. The foregoing description of the Credit Agreement is qualified in its entirety
by reference to the Credit Agreement, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant.
The information contained in
Item 1.01 is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
Number |
|
Description |
10.1 |
|
Delayed Draw Term Loan Agreement, dated as of January 3, 2024, among Omnicom Capital Inc., a Connecticut corporation, Omnicom Group Inc., a New York corporation, the initial lenders named therein, Citibank, N.A., BofA Securities, Inc., Barclays Bank PLC, BNP Paribas Securities Corp., Deutsche Bank Securities Inc., HSBC Securities (USA), Inc., JPMorgan Chase Bank, N.A., Mizuho Bank, Ltd., Société Générale, Sumitomo Mitsui Banking Corporation, TD Securities (USA), LLC, U.S. Bank National Association and Wells Fargo Securities, LLC, as lead arrangers and book managers, and Citibank, N.A., as administrative agent for the lenders. |
|
|
|
104 |
|
The cover page from this Current Report on Form 8-K, formatted in Inline XBRL. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
OMNICOM GROUP INC. |
|
|
|
|
By: |
/s/ Philip J. Angelastro |
|
Name: |
Philip J. Angelastro |
|
Title: |
Executive Vice President and Chief Financial Officer |
|
|
|
Date: January 5, 2024 |
|
|
3
Exhibit 10.1
EXECUTION
COPY
U.S.
$600,000,000
DELAYED
DRAW TERM LOAN AGREEMENT
Dated
as of January 3, 2024
Among
OMNICOM
CAPITAL INC.
as
Borrower
OMNICOM
GROUP INC.
as
Guarantor
THE
INITIAL LENDERS NAMED HEREIN
as
Initial Lenders
CITIBANK,
N.A.,
BOFA
SECURITIES, INC.,
BARCLAYS
BANK PLC,
BNP
PARIBAS SECURITIES CORP.,
DEUTSCHE
BANK SECURITIES INC.,
HSBC
SECURITIES (USA), INC.,
JPMORGAN
CHASE BANK, N.A.,
MIZUHO
BANK, LTD.,
SOCIÉTÉ
GÉNÉRALE,
SUMITOMO
MITSUI BANKING CORPORATION,
TD
SECURITIES (USA), LLC,
U.S.
BANK NATIONAL ASSOCIATION
and
WELLS
FARGO SECURITIES, LLC,
as
Lead Arrangers and Book Managers
and
CITIBANK,
N.A.
as
Administrative Agent
TABLE
OF CONTENTS
ARTICLE I |
|
|
|
|
|
|
|
|
|
SECTION 1.01. |
|
Certain Defined Terms |
1 |
|
SECTION 1.02. |
|
Computation of Time Periods |
11 |
|
SECTION 1.03. |
|
Accounting
Terms |
11 |
|
SECTION 1.04. |
|
Divisions |
12 |
|
SECTION 1.05. |
|
Rates |
12 |
|
|
|
|
|
ARTICLE II |
|
|
|
|
|
|
|
|
|
SECTION 2.01. |
|
The Advances |
12 |
|
SECTION 2.02. |
|
Making the Advances |
12 |
|
SECTION 2.03. |
|
[Reserved] |
13 |
|
SECTION 2.04. |
|
Fees |
13 |
|
SECTION 2.05. |
|
Optional Termination or Reduction of the Commitments |
13 |
|
SECTION 2.06. |
|
Repayment of Advances |
14 |
|
SECTION 2.07. |
|
Interest on Advances |
14 |
|
SECTION 2.08. |
|
Interest Rate Determination |
14 |
|
SECTION 2.09. |
|
Optional Conversion of Advances |
15 |
|
SECTION 2.10. |
|
Optional
Prepayments of Advances |
15 |
|
SECTION 2.11. |
|
Increased
Costs |
15 |
|
SECTION 2.12. |
|
Illegality |
16 |
|
SECTION 2.13. |
|
Payments and Computations |
17 |
|
SECTION 2.14. |
|
Taxes |
18 |
|
SECTION 2.15. |
|
Sharing
of Payments, Etc. |
20 |
|
SECTION 2.16. |
|
Evidence of Debt |
21 |
|
SECTION 2.17. |
|
Use of Proceeds |
21 |
Omnicom: Delayed Draw Term Loan Agreement
|
SECTION 2.18. |
|
[Reserved] |
21 |
|
SECTION 2.19. |
|
Defaulting Lenders |
21 |
|
SECTION 2.20. |
|
Mitigation Obligations; Replacement of Lenders |
22 |
|
SECTION 2.21. |
|
[Reserved] |
23 |
|
SECTION 2.22. |
|
Benchmark Replacement Setting |
23 |
|
|
|
|
|
ARTICLE III |
|
|
|
|
|
|
|
|
|
SECTION 3.01. |
|
Conditions Precedent to Effectiveness of Section 2.01 |
26 |
|
SECTION 3.02. |
|
[Reserved] |
27 |
|
SECTION 3.03. |
|
Conditions Precedent to Each Borrowing. |
27 |
|
SECTION 3.04. |
|
Determinations Under Section 3.01 |
27 |
|
|
|
|
|
ARTICLE IV |
|
|
|
|
|
|
|
|
|
SECTION 4.01. |
|
Representations and Warranties of the Guarantor |
28 |
|
|
|
|
|
ARTICLE V |
|
|
|
|
|
|
|
|
|
SECTION 5.01. |
|
Affirmative Covenants |
29 |
|
SECTION 5.02. |
|
Negative Covenants |
31 |
|
SECTION 5.03. |
|
Financial Covenant |
33 |
|
|
|
|
|
ARTICLE VI |
|
|
|
|
|
|
|
|
|
SECTION 6.01. |
|
Events of Default |
33 |
|
|
|
|
|
ARTICLE VII |
|
|
|
|
|
|
|
|
|
SECTION 7.01. |
|
Guaranty |
35 |
|
SECTION 7.02. |
|
Guaranty Absolute |
35 |
|
SECTION 7.03. |
|
Waivers and Acknowledgements |
36 |
|
SECTION 7.04. |
|
Subrogation |
37 |
|
SECTION 7.05. |
|
Subordination |
37 |
|
SECTION 7.06. |
|
Continuing Guaranty; Assignments |
37 |
Omnicom: Delayed Draw Term Loan Agreement
ARTICLE VIII |
|
|
|
|
|
|
|
|
|
SECTION 8.01. |
|
Authorization and Authority |
38 |
|
SECTION 8.02. |
|
Rights as a Lender |
38 |
|
SECTION 8.03. |
|
Duties of Agent; Exculpatory Provisions |
38 |
|
SECTION 8.04. |
|
Reliance by Agent |
39 |
|
SECTION 8.05. |
|
Delegation of Duties |
39 |
|
SECTION 8.06. |
|
Resignation of Agent |
39 |
|
SECTION 8.07. |
|
Non-Reliance on Agent and Other Lenders |
40 |
|
SECTION 8.08. |
|
No Other Duties, Etc |
40 |
|
SECTION 8.09. |
|
Lender ERISA Representation |
40 |
|
SECTION 8.10. |
|
Erroneous Payments |
41 |
|
|
|
|
|
ARTICLE IX |
|
|
|
|
|
|
|
|
|
SECTION 9.01. |
|
Amendments, Etc. |
44 |
|
SECTION 9.02. |
|
Notices, Etc. |
44 |
|
SECTION 9.03. |
|
No Waiver; Remedies |
45 |
|
SECTION 9.04. |
|
Costs and Expenses; Damage Waiver |
45 |
|
SECTION 9.05. |
|
Right of Set-off |
47 |
|
SECTION 9.06. |
|
Binding Effect |
47 |
|
SECTION 9.07. |
|
Assignments and Participations |
47 |
|
SECTION 9.08. |
|
Confidentiality |
52 |
|
SECTION 9.09. |
|
[Reserved] |
52 |
|
SECTION 9.10. |
|
Governing Law |
52 |
|
SECTION 9.11. |
|
Execution in Counterparts |
52 |
|
SECTION 9.12. |
|
[Reserved] |
52 |
|
SECTION 9.13. |
|
Jurisdiction, Etc. |
53 |
|
SECTION 9.14. |
|
[Reserved] |
53 |
|
SECTION 9.15. |
|
[Reserved] |
53 |
|
SECTION 9.16. |
|
Patriot Act |
53 |
|
SECTION 9.17. |
|
No Fiduciary Duty |
53 |
|
SECTION 9.18. |
|
Acknowledgement and Consent to Bail-In of Affected Financial Institutions |
53 |
|
SECTION 9.19. |
|
Waiver of Jury Trial |
55 |
Omnicom: Delayed Draw Term Loan Agreement
Schedules
Schedule
I – Commitments of the Initial Lenders
Schedule
3.01(b) - Disclosed Litigation
Schedule
5.02(a) - Existing Liens
Schedule
5.02(d) - Existing Debt
Exhibits
Exhibit
A - Form of Note
Exhibit
B - Form of Notice of Borrowing
Exhibit
C - Form of Assignment and Assumption
Exhibit
D - Tax Forms
Omnicom: Delayed Draw Term Loan Agreement
DELAYED
DRAW TERM LOAN AGREEMENT
Dated
as of January 3, 2024
OMNICOM
CAPITAL INC., a Connecticut corporation (the “Borrower”), OMNICOM GROUP INC., a New York corporation (the “Guarantor”),
the banks, financial institutions and other institutional lenders (the “Initial Lenders”) listed on the signature
pages hereof and CITIBANK, N.A. (“Citibank”), as administrative agent (the “Agent”) for the Lenders
(as hereinafter defined), agree as follows:
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
SECTION
1.01. Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to
be equally applicable to both the singular and plural forms of the terms defined):
“Acquired/Disposed
Business” means (a) any Person, assets, equity interests, entities, lines of business or divisions acquired or disposed of,
as the case may be, by the Guarantor or any Subsidiary of the Guarantor where the consideration (whether cash, stock or other form of
consideration) for the transaction is at least $200,000,000 (it being understood that such consideration shall be determined based on
the payment made at the time of the transaction, without regard to any subsequent or earnout payments); or (b) a Specified Acquisition.
“Additional
Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Guarantor or its Subsidiaries
from time to time concerning or relating to bribery or corruption, other than the Anti-Corruption Laws.
“Adjusted
Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b)
the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than zero, then Adjusted Term SOFR
shall be deemed to be zero.
“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by the Agent and completed by Lenders specifying their
Applicable Lending Office, among other information.
“Advance”
means an advance by a Lender to the Borrower as part of a Borrowing pursuant to Section 2.01 and may refer to a Base Rate Advance or
a Term Rate Advance (each of which shall be a “Type” of Advance).
“Affected
Financial Institution” has the meaning specified in Section 9.18.
“Affiliate”
means, as to any Person, any other Person (other than an individual) that, directly or indirectly, controls, is controlled by or is under
common control with such Person; provided that, for purposes of Section 5.01(h), an Affiliate of the Borrower shall include any Person
that (x) is a director or officer of such Person or (y) has the possession, direct or indirect, of the power to vote 5% or more of the
Voting Stock of such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock,
by contract or otherwise.
“Agent’s
Account” means (a) the account of the Agent maintained by the Agent at Citibank at its office at One Penns Way, Ops II,
Floor 2, New Castle, Delaware 19720, Account No. 36852248, Attention: Bank Loan Syndications and (b) such other account of
the Agent as is designated in writing from time to time by the Agent to the Borrower and the Lenders for such purpose.
“Agent
Parties” has the meaning specified in Section 9.02(d)(ii).
“Anti-Corruption
Laws” means the U.S. Foreign Corrupt Practices Act, the UK Bribery Act of 2010 and the rules and regulations thereunder.
“Applicable
Lending Office” means, with respect to any Lender, the office of such Lender specified as its “Lending Office”
in its Administrative Questionnaire delivered to the Agent, or such other office, branch or Affiliate of such Lender as such Lender may
from time to time specify to the Borrower and the Agent.
“Applicable
Margin” means as of any date, a percentage per annum determined by reference to the Public Debt Rating in effect on such date
as set forth below:
Public Debt Rating S&P/Moody’s | |
Applicable Margin for Term Rate Advances | | |
Applicable Margin for Base Rate Advances | |
Level 1 A+ or A1 or above | |
| 0.750 | % | |
| 0.000 | % |
Level 2 A or A2 | |
| 0.875 | % | |
| 0.000 | % |
Level 3 A- or A3 | |
| 1.000 | % | |
| 0.000 | % |
Level 4 BBB+ or Baa1 | |
| 1.125 | % | |
| 0.125 | % |
Level 5 BBB or Baa2 | |
| 1.250 | % | |
| 0.250 | % |
Level 6 Lower than Level 5 | |
| 1.500 | % | |
| 0.500 | % |
“Applicable
Percentage” means, as of any date, a percentage per annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:
Public Debt Rating S&P/Moody’s | |
Applicable Percentage | |
Level 1 A+ or A1 or above | |
| 0.060 | % |
Level 2 A or A2 | |
| 0.070 | % |
Level 3 A- or A3 | |
| 0.090 | % |
Level 4 BBB+ or Baa1 | |
| 0.100 | % |
Level 5 BBB or Baa2 | |
| 0.125 | % |
Level 6 Lower than Level 5 | |
| 0.175 | % |
“Approved
Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee, and accepted by the Agent,
in substantially the form of Exhibit C hereto.
“Bail-In
Action” has the meaning specified in Section 9.18.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.
“Base
Rate” means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be not
less than zero and equal to the highest of:
(a) the
rate of interest announced publicly by Citibank in New York, New York, from time to time, as Citibank’s base rate;
(b) ½
of one percent per annum above the Federal Funds Rate; and
(c) Adjusted
Term SOFR for a period of one month plus 1.00%.
“Base
Rate Advance” means an Advance that bears interest as provided in Section 2.07(a)(i).
“Benchmark”
has the meaning specified in Section 2.22(e).
“Benchmark
Replacement” has the meaning specified in Section 2.22(e).
“Beneficial
Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial
Ownership Regulation” means 31 C.F.R. § 1010.230.
“Board
of Directors” means as to any Person, the board of directors, board of managers, sole member or managing member or other governing
body of such Person, or if such Person is owned or managed by a single entity or has a general partner, the board of directors, board
of managers, sole member or managing member or other governing body of such entity or general partner, or in each case, any duly authorized
committee thereof.
“Borrowing”
means (a) with respect to the making of Advances, a borrowing consisting of simultaneous Advances of the same Type made by each of the
Lenders pursuant to Section 2.01; and (b) in other contexts (i) that portion of the Advances comprised of all outstanding Base Rate
Advances and (ii) that portion of the Advances converted into, or continued as, Term Rate Advances having the same Interest Period.
“Borrowing
Minimum” means $5,000,000.
“Borrowing
Multiple” means $1,000,000.
“Business
Day” means a day of the year on which banks are not required or authorized by law to close in New York City.
“Commitment”
means as to any Lender (a) the Dollar amount set forth opposite such Lender’s name on the Schedule I hereto as such Lender’s
“Commitment” or (b) if such Lender has entered into any Assignment and Assumption, the Dollar amount set forth for such Lender
in the Register maintained by the Agent pursuant to Section 9.07(c), as such amount may be reduced or increased in accordance with
the terms hereof.
“Commitment
Termination Date” means the earliest of (a) the date of the third Borrowing hereunder, (b) July 15, 2024 and (c) the date of
termination in whole of the Commitments pursuant to Section 2.05 or 6.01.
“Competitor”
means, as of any date, any Person that is (a) a competitor of the Guarantor or the Borrower or (b) any Affiliate of a competitor of the
Guarantor or the Borrower, which Person has been designated by the Guarantor as a “Competitor” by written notice to the Agent
and the Lenders (including by posting such notice to the Platform) effective five Business Days after such notice is so given; provided
that “Competitor” shall exclude any Person that the Guarantor has designated as no longer being a “Competitor”
by written notice delivered to the Agent from time to time.
“Confidential
Information” means information that a Loan Party furnishes to the Agent or any Lender in a writing designated as confidential.
“Conforming
Changes” means, with respect to either the use or administration of an initial Benchmark 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” (if applicable), 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 breakage provisions
and other technical, administrative or operational matters) that the Agent, in its reasonable discretion, decides may be appropriate
to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Agent in a manner
substantially consistent with market practice (or, if the Agent, in its reasonable discretion, decides that adoption of any portion of
such market practice is not administratively feasible or if the Agent, in its reasonable discretion, determines that no market practice
for the administration of any such rate exists, in such other manner of administration as the Agent decides is reasonably necessary in
connection with the administration of this Agreement).
“Consolidated”
refers to the consolidation of accounts in accordance with GAAP.
“Convert”,
“Conversion” and “Converted” each refers to a conversion of Advances of one Type into Advances
of the other Type pursuant to Section 2.08 or 2.09.
“Debt”
of any Person means, 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 earn-out payment obligations of such Person in connection
with the purchase of property or services to the extent they are still contingent), (c) all obligations of such Person evidenced
by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person 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 obligations
of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as finance leases, (f) all
obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (g) all
obligations of such Person in respect of Hedge Agreements, (h) all Debt of others referred to in clauses (a) through (g) above
or clause (i) below and other payment obligations guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (1) to pay or purchase such Debt or to advance or supply funds for the
payment or purchase of such Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss, (3) to
supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (4) otherwise to assure a creditor against loss, and (i) all
Debt referred to in clauses (a) through (h) above secured by (or for which the holder of such Debt 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,
even though such Person has not assumed or become liable for the payment of such Debt.
“Debt
for Borrowed Money” of any Person means all items that, in accordance with GAAP, would be classified as indebtedness on a Consolidated
balance sheet of such Person.
“Default”
means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time
elapse or both.
“Defaulting
Lender” means, subject to Section 2.19(d), at any time, any Lender that, at such time (a) has failed to perform any of its
funding obligations hereunder, including in respect of its Advances, within two Business Days of the date required to be funded by it
hereunder, (b) has notified the Borrower or the Agent in writing that it does not intend to comply with its funding obligations generally
or has made a public statement to that effect with respect to its funding obligations hereunder or generally under other agreements in
which it commits to extend credit, (c) has failed, within three Business Days after written request by the Agent (based on its reasonable
belief that such Lender may not fulfill its funding obligations hereunder), to confirm in a manner satisfactory to the Agent that it
will comply with its funding obligations hereunder, provided that such Lender shall cease to be a Defaulting Lender upon receipt of such
written confirmation by the Agent and the Agent’s written notice to the Defaulting Lender and the Borrower that such confirmation
is satisfactory, or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a debtor relief law or a
Bail-In Action, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated
its consent to, approval of or acquiescence in any such proceeding or appointment; provided that, for the avoidance of doubt, a Lender
shall not be a Defaulting Lender solely by virtue of (1) the control, ownership or acquisition of any equity interest in that Lender
or any direct or indirect parent company thereof by a governmental authority or (2) in the case of a solvent Lender, the precautionary
appointment of an administrator, guardian, custodian or other similar official by a government authority under or based on the law of
the country where such lender is subject to home jurisdiction supervision if applicable law requires that such appointment not be publicly
disclosed, so long as, in the case of clause (1) and clause (2), such action does not result in or provide such Lender with immunity
from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or
permit such Lender (or such governmental authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements
made with such Person.
“Disclosed
Litigation” has the meaning specified in Section 3.01(b).
“Dollars”
and the “$” sign each means lawful currency of the United States of America.
“EBITDA”
means, for any period, net income (or net loss) plus the sum of (a) net interest expense, (b) income tax expense, (c) depreciation
expense, (d) amortization expense and (e) non-cash charges, in each case determined in accordance with GAAP for such period; provided,
that for purposes of calculating EBITDA for the Guarantor and its Subsidiaries for any period, the EBITDA of any Acquired/Disposed Business
acquired or disposed of by the Guarantor or any of its Subsidiaries during such period shall be included or excluded, as the case may
be, on a pro forma basis for such period (as if the consummation of such acquisition or disposition occurred on the first day of such
period).
“Effective
Date” has the meaning specified in Section 3.01.
“Eligible
Assignee” means any Person that meets the requirements to be an assignee under Section 9.07(b)(iii), (v) and (vi) (subject
to such consents, if any, as may be required under Section 9.07(b)(iii)).
“Environmental
Action” means any action, suit, demand, demand letter, claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, Environmental
Permit or hazardous materials or arising from alleged injury or threat of injury to health, safety or the environment, including, without
limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions
or damages and (b) by any governmental or regulatory authority or any third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.
“Environmental
Law” means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance relating to pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release
or discharge of hazardous materials.
“Environmental
Permit” means any permit, approval, identification number, license or other authorization required under any Environmental
Law.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
“ERISA
Affiliate” means any Person that for purposes of Title IV of ERISA is a member of the Guarantor’s controlled group,
or under common control with the Guarantor, within the meaning of Section 414 of the Internal Revenue Code.
“ERISA
Event” means (a) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect
to any Plan unless the 30-day notice requirement with respect to such event has been waived by the PBGC, (b) the application for
a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate
such Plan pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of the Guarantor or any ERISA Affiliate in the circumstances described
in Section 4062(e) of ERISA; (e) the withdrawal by the Guarantor or any ERISA Affiliate from a Multiple Employer Plan during
a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for the
imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan; or (g) the institution by
the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described
in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, a Plan.
“Events
of Default” has the meaning specified in Section 6.01.
“FATCA”
means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version
that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations
thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code (or any amended or successor version
described above), any published intergovernmental agreement entered into in connection with the implementation of such Sections of the
Internal Revenue Code and any fiscal or regulatory legislation adopted pursuant to such published intergovernmental agreements.
“Federal
Funds Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s Federal
funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on
its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the
Federal funds effective rate, provided that, if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be
zero for purposes of this Agreement.
“Fund”
means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its activities.
“GAAP”
has the meaning specified in Section 1.03.
“Guaranteed
Obligations” has the meaning specified in Section 7.01.
“Guaranty”
means the provisions of Article VII.
“Hedge
Agreements” means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements.
“Information
Memorandum” means the information memorandum dated November 2023 used by the Agent in connection with the syndication of the
Commitments.
“Interest
Period” means, for each Term Rate Advance comprising part of the same Borrowing, the period commencing on the date of such
Term Rate Advance or the date of the Conversion of any Base Rate Advance into such Term Rate Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the last day of the period selected by the Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one, three or six months, as the Borrower may, upon notice received by the
Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the first day of such Interest Period,
select; provided, however, that:
(a) the
Borrower may not select any Interest Period that ends after the Maturity Date;
(b) Interest
Periods commencing on the same date for Term Rate Advances comprising part of the same Borrowing shall be of the same duration;
(c) whenever
the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall
be extended to occur on the next succeeding Business Day, provided, however, that, if such extension would cause the last day of such
Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding
Business Day; and
(d) whenever
the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day
in the calendar month that succeeds such initial calendar month by the number of months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding calendar month.
“Internal
Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
“Lenders”
means the Initial Lenders and each Person that shall become a party hereto pursuant to Section 9.07.
“Lien”
means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement intended
to provide security for the payment or performance of an obligation, including, without limitation, the lien or retained security title
of a conditional vendor and any easement, right of way or other encumbrance on title to real property.
“Loan
Party” means the Borrower and the Guarantor.
“Material
Adverse Change” means any material adverse change in the business, financial condition, operations, performance or properties
of the Guarantor or the Guarantor and its Subsidiaries taken as a whole.
“Material
Adverse Effect” means a material adverse effect on (a) the business, financial condition, operations, performance or properties
of the Guarantor or the Guarantor and its Subsidiaries taken as a whole, (b) the rights and remedies of the Agent or any Lender
under this Agreement or any Note or (c) the ability of any Loan Party to perform its obligations under this Agreement or any Note.
“Material
Subsidiary” means (i) the Borrower, (ii) Omnicom Finance Limited, a private limited company organized under the laws of England
and Wales, (iii) any Subsidiary of the Guarantor for which the assets or revenues of such Subsidiary and its Subsidiaries, taken as a
whole, comprise more than 5% of the assets or revenues, respectively, of the Guarantor and its Subsidiaries, taken as a whole or (iv)
any group of Subsidiaries that do not meet the requirements of clauses (i), (ii) and (iii) if the aggregate assets and revenues of all
such Subsidiaries and their Subsidiaries comprise more than 15% of the assets or revenues, respectively, of the Guarantor and its Subsidiaries
taken as a whole.
“Maturity
Date” means December 31, 2026.
“Moody’s”
means Moody’s Investors Service, Inc. (or any successor).
“Multiemployer
Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Guarantor or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation
to make contributions.
“Multiple
Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Guarantor or any ERISA Affiliate and at least one Person other than the Guarantor and the ERISA Affiliates or (b) was
so maintained and in respect of which the Guarantor or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA
in the event such plan has been or were to be terminated.
“Non-Consenting
Lender” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders
or all affected Lenders in accordance with the terms of Section 9.01 and (ii) has been approved by the Required Lenders.
“Note”
means a promissory note of the Borrower payable to a Lender, delivered pursuant to a request made under Section 2.16 in substantially
the form of Exhibit A hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Advances made
by such Lender.
“Notice
of Borrowing” has the meaning specified in Section 2.02(a).
“Participant
Register” has the meaning specified in Section 9.07(e).
“Patriot
Act” has the meaning specified in Section 9.16.
“PBGC”
means the Pension Benefit Guaranty Corporation (or any successor).
“Permitted
Liens” means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under
Section 5.01(b) hereof; (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s
and repairmen’s Liens and other similar Liens arising in the ordinary course of business securing obligations that are not overdue
for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings that prevent the forfeiture
or sale of the assets subject to such Lien; (c) pledges or deposits to secure obligations under workers’ compensation laws
or similar legislation or to secure public or statutory obligations or, in any such case, to secure reimbursement obligations under letters
of credit or bonds issued to support such obligations; and (d) easements, rights of way and other encumbrances on title to real
property that do not render title to the property encumbered thereby unmarketable or materially adversely affect the use of such property
for its present purposes.
“Person”
means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.
“Plan”
means a Single Employer Plan or a Multiple Employer Plan.
“Post
Petition Interest” has the meaning specified in Section 7.05.
“Public
Debt Rating” means, as of any date, the rating that has been most recently announced by either S&P or Moody’s, as
the case may be, for any class of non-credit enhanced long-term senior unsecured debt issued by the Guarantor or, if either such rating
agency shall have issued more than one such rating, the lowest such rating issued by such rating agency. For purposes of the foregoing,
(a) if only one of S&P and Moody’s shall have in effect a Public Debt Rating, the Applicable Margin and the Applicable
Percentage shall be determined by reference to the available rating; (b) if neither S&P nor Moody’s shall have in effect
a Public Debt Rating, the Applicable Margin and the Applicable Percentage will be set in accordance with Level 6 under the definition
of “Applicable Margin” or “Applicable Percentage”, as the case may be; (c) if the ratings established by
S&P and Moody’s shall fall within different levels, the Applicable Margin and the Applicable Percentage shall be based upon
the higher rating unless such rating differs by two or more levels, in which case the applicable level will be deemed to be one level
above the lower of such levels; (d) if any rating established by S&P or Moody’s shall be changed, such change shall be
effective as of the date on which such change is first announced publicly by the rating agency making such change; and (e) if S&P
or Moody’s shall change the basis on which ratings are established, each reference to the Public Debt Rating announced by S&P
or Moody’s, as the case may be, shall refer to the then equivalent rating by S&P or Moody’s, as the case may be.
“Ratable
Share” of any amount means, with respect to any Lender at any time, the product of such amount times a fraction the numerator
of which is the amount of such Lender’s Commitment at such time (or, if the Commitments shall have been terminated pursuant to
Section 2.05 or 6.01, the aggregate principal amount of such Lender’s Advances) and the denominator of which is the aggregate
amount of all Commitments at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the
aggregate principal amount of all outstanding Advances).
“Register”
has the meaning specified in Section 9.07(c).
“Related
Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees,
agents and advisors of such Person and of such Person’s Affiliates.
“Required
Lenders” means at any time Lenders owed at least a majority in interest of the then aggregate unpaid principal amount of the
Advances owing to Lenders, or, if no such principal amount is then outstanding, Lenders having at least a majority in interest of the
Commitments; provided that if any Lender shall be a Defaulting Lender at such time, there shall be excluded from the determination
of Required Lenders at such time the Commitments of such Defaulting Lender at such time.
“S&P”
means S&P Global Ratings (or any successor).
“Sanctioned
Country” means, at any time, a country or territory which is the subject or target of any comprehensive territorial Sanctions.
“Sanctioned
Person” means, 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, the U.S. Department of State or the Hong Kong Monetary Authority, (b)
any Person located, organized or resident in a Sanctioned Country or (c) directly or indirectly 50% or more owned or controlled by, or
acting for the benefit of, any Person, described in clause (a) or (b) above.
“Sanctions”
means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the Office of Foreign
Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the European Union, the United Nations
Security Council, the Australian Department of Foreign Affairs, the Hong Kong Monetary Authority and Trade or His Majesty’s Treasury
of the United Kingdom.
“SEC”
has the meaning specified in Section 5.01(h)(iv).
“Single
Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Guarantor or any ERISA Affiliate and no Person other than the Guarantor and the ERISA Affiliates or (b) was so
maintained and in respect of which the Guarantor or any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
“SOFR”
means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR
Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing
rate).
“Specified
Acquisition” means one or more acquisitions of assets, equity interests, entities, operating lines or divisions in any fiscal
quarter for an aggregate purchase price of not less than $200,000,000 (it being understood that such consideration shall be determined
based on the payment made at the time of the transaction, without regard to any subsequent or earnout payments).
“Subordinated
Obligations” has the meaning specified in Section 7.05.
“Subsidiary”
of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding Voting Stock of such Person, (b) the interest in the capital or profits of such
limited liability company, partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such
Person’s other Subsidiaries.
“Term
Rate” means, for any Interest Period for each Term Rate Advance comprising part of the same Borrowing, an interest rate per
annum equal to Adjusted Term SOFR for such Interest Period.
“Term
Rate Advance” means an Advance that bears interest as provided in Section 2.07(a)(ii).
“Term
SOFR” means,
(a) for
any calculation with respect to a Term Rate Advance, 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 Advance on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such
day, the “ABR 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
ABR 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 ABR Term SOFR
Determination Day.
“Term
SOFR Adjustment” means a percentage equal to 0.10% per annum.
“Term
SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference
Rate selected by the Agent in its reasonable discretion).
“Term
SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Unused
Commitment” means, with respect to each Lender at any time, (a) such Lender’s Commitment at such time minus (b) the aggregate
principal amount of all Advances made by such Lender and outstanding at such time.
“U.S.
Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities
Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for
purposes of trading in United States government securities.
“Voting
Stock” means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person,
even if the right so to vote has been suspended by the happening of such a contingency.
SECTION
1.02. Computation of Time Periods. In this Agreement in the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including” and the words “to” and “until” each
mean “to but excluding”.
SECTION
1.03. Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with U.S. generally
accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 4.01(e)
(“GAAP”), provided that (a) if there is any change in GAAP from such principles applied in the preparation
of the audited financial statements referred to in Section 4.01(e) (“Initial GAAP”), that is material in respect
of the calculation of compliance with the covenants set forth in Section 5.02 or 5.03, the Guarantor shall give prompt notice of such
change to the Agent and the Lenders and (b) if the Guarantor notifies the Agent that the Guarantor requests an amendment of any provision
hereof to eliminate the effect of any change in GAAP (or the application thereof) from Initial GAAP (or if the Agent or the Required
Lenders request an amendment of any provision hereof for such purpose), regardless of whether such notice is given before or after such
change in GAAP (or the application thereof), then such provision shall be applied on the basis of such generally accepted accounting
principles as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn
or such provision is amended in accordance herewith. 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 herein shall be made (i) without
giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial
Accounting Standard having a similar result or effect) to value any indebtedness or other liabilities of the Guarantor or any Subsidiary
at “fair value”, as defined therein and (ii) without giving effect to any treatment of indebtedness under Accounting Standards
Codification 825 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect)
to value any such indebtedness in a reduced manner as described therein, and such indebtedness shall at all times be valued at the full
stated principal amount thereof. For the avoidance of doubt, all liabilities related to operating leases, as defined by FASB ASC 842
(or any successor provision), are excluded from the definition of Debt and payments related to operating leases are not included in interest
expense in part or in whole.
SECTION
1.04. Divisions. For all purposes under this Agreement, in connection with any division or plan of division under Delaware law
(or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person
becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original
Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized
and acquired on the first date of its existence by the holders of its equity interests at such time.
SECTION
1.05. Rates. The 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 the Base Rate, the Term Rate or
any other Benchmark, 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, the Base Rate, the Term Rate, such Benchmark or any other Benchmark prior to its discontinuance
or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Agent and its affiliates or other
related entities may engage in transactions that affect the calculation of the Base Rate or a Benchmark, 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 Agent may select information sources or services in its reasonable discretion to ascertain the Base Rate, any Benchmark,
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.
ARTICLE
II
AMOUNTS
AND TERMS OF THE ADVANCES
SECTION
2.01. The Advances. Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make Advances to the Borrower
from time to time on any three Business Days during the period from the Effective Date until the Commitment Termination Date in an amount
not to exceed such Lender’s Unused Commitment at such time. Each Borrowing under this Section 2.01 shall be in an amount not less
than the Borrowing Minimum or an integral multiple of the Borrowing Multiple in excess thereof and shall consist of Advances of the same
Type made on the same day by the Lenders ratably according to their respective Commitments. Amounts borrowed under this Section 2.01
and prepaid or repaid may not be reborrowed.
SECTION
2.02. Making the Advances. (a) Each Borrowing shall be made on notice, given not later than (x) 11:00 A.M. (New York
City time) on the third Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Term Rate Advances,
or (y) 11:00 A.M. (New York City time) on the date of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances,
by the Borrower to the Agent, which shall give to each Lender prompt notice thereof by telecopier or email. Each such notice of a Borrowing
(a “Notice of Borrowing”) shall be in writing, by telecopier or email, in substantially the form of Exhibit B
hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate
amount of such Borrowing, and (iv) in the case of a Borrowing consisting of Term Rate Advances, initial Interest Period for each
such Advance. Each Lender shall, before 1:00 P.M. (New York City time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, such Lender’s ratable portion
of such Borrowing. After the Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III,
the Agent will make such funds available to the Borrower at the Agent’s address referred to in Section 9.02.
(b) Anything
in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not select Term Rate Advances for any Borrowing
if the aggregate amount of such Borrowing is less than the Borrowing Minimum or if the obligation of the Lenders to make Term Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) the Term Rate Advances may not be outstanding as part of
more than six separate Borrowings.
(c) Each
Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Term Rate Advances, the Borrower shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance, as a result of such failure, is not made on such date.
(d) Unless
the Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the
Agent such Lender’s ratable portion of such Borrowing, the Agent may assume that such Lender has made such portion available to
the Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance
upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Agent, such Lender and the Borrower severally agree to repay to the Agent forthwith
on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Agent, at (i) in the case of the Borrower, the higher of (A) the interest rate applicable
at the time to Advances comprising such Borrowing and (B) the cost of funds incurred by the Agent in respect of such amount and (ii) in
the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid
shall constitute such Lender’s Advance as part of such Borrowing for purposes of this Agreement.
(e) The
failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
(f) In
connection with the use or administration of any Benchmark, the Agent will have the right to make Conforming Changes from time to time
and, notwithstanding anything to the contrary herein, any amendments implementing such Conforming Changes will become effective without
any further action or consent of any other party to this Agreement. The Agent will promptly notify the Borrower and the Lenders of the
effectiveness of any Conforming Changes in connection with the use or administration of any Benchmark.
SECTION
2.03. [Reserved].
SECTION
2.04. Fees. (a) Ticking Fee. The Borrower agrees to pay to the Agent for the account of each Lender a ticking fee on the
amount of such Lender’s Unused Commitment from the Effective Date in the case of each Initial Lender and from the effective date
specified in the Assignment and Assumption pursuant to which it became a Lender in the case of each other Lender until the Commitment
Termination Date at a rate per annum equal to the Applicable Percentage in effect from time to time, payable in arrears quarterly on
the last day of each March, June, September and December, commencing March 31, 2024, and on the Commitment Termination Date; provided
that no Defaulting Lender shall be entitled to receive any ticking fee in respect of its Commitment for any period during which that
Lender is a Defaulting Lender (and the Borrower shall not be required to pay such fee that otherwise would have been required to have
been paid to that Defaulting Lender).
(b) Agent’s
Fees. The Borrower shall pay to the Agent for its own account such fees as may from time to time be agreed between the Guarantor
and the Agent.
SECTION
2.05. Optional Termination or Reduction of the Commitments. (a) Ratable Termination or Reduction. The Borrower shall have
the right, upon at least five Business Days’ notice to the Agent, to terminate in whole or permanently reduce ratably in part the
Unused Commitments of the Lenders, provided that each partial reduction shall be in the aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof.
(b) Termination
of Defaulting Lender. The Borrower may terminate the Unused Commitment of any Lender that is a Defaulting Lender upon prior notice
of not less than one Business Day to the Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of
Section 2.19(a) shall apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender under this Agreement
(whether on account of principal, interest, ticking fees or other amounts), provided that (i) no Default shall have occurred and be continuing
and (ii) such termination shall not be deemed to be a waiver or release of any claim the Borrower, the Agent or any Lender may have against
such Defaulting Lender.
SECTION
2.06. Repayment of Advances . The Borrower shall repay to the Agent for the ratable account of each Lender on the Maturity Date
the aggregate principal amount of the Advances then outstanding.
SECTION
2.07. Interest on Advances. (a) Scheduled Interest. The Borrower shall pay interest on the unpaid principal amount of each
Advance owing to each Lender from the date of such Advance until such principal amount shall be paid in full, at the following rates
per annum:
(i) Base
Rate Advances. During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the sum of (x) the
Base Rate in effect from time to time plus (y) the Applicable Margin in effect from time to time, payable in arrears quarterly on
the last day of each March, June, September and December during such periods and on the date such Base Rate Advance shall be Converted
or paid in full.
(ii) Term
Rate Advances. During such periods as such Advance is a Term Rate Advance, a rate per annum equal at all times during each Interest
Period for such Advance to the sum of (x) the Term Rate for such Interest Period for such Advance plus (y) the Applicable Margin
in effect from time to time, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period
and on the date such Term Rate Advance shall be Converted or paid in full.
(b) Default
Interest. Upon the occurrence and during the continuance of an Event of Default under Section 6.01(a), the Agent may, and upon
the request of the Required Lenders shall, require the Borrower to pay interest (“Default Interest”) on (i) the
unpaid principal amount of each Advance owing to each Lender, payable in arrears on the dates referred to in clause (a) above, at
a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Advance pursuant to clause (a)
above and (ii) to the fullest extent permitted by law, the amount of any interest, fee or other amount payable hereunder that is
not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required
to be paid on Base Rate Advances pursuant to clause (a)(i) above; provided, however, that following acceleration of the Advances
pursuant to Section 6.01, Default Interest shall accrue and be payable hereunder whether or not previously required by the Agent.
SECTION
2.08. Interest Rate Determination. (a) The Agent shall give prompt notice to the Borrower and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.07(a)(i) or (ii).
(b) If,
with respect to any Term Rate Advances, the Required Lenders notify the Agent that the Term Rate for any Interest Period for such Advances
will not adequately reflect the cost to such Required Lenders of making, funding or maintaining their respective Term Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the Lenders, whereupon (A) the Borrower will, on the
last day of the then existing Interest Period therefor, either (x) prepay such Advances or (y) Convert such Advances into Base Rate Advances
and (B) the obligation of the Lenders to make, or to Convert Advances into, Term Rate Advances shall be suspended until the Agent
shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist.
(c) If
the Borrower shall fail to select the duration of any Interest Period in accordance with the provisions contained in the definition of
“Interest Period” in Section 1.01 for any Term Rate Advances made to it, the Agent will forthwith so notify the Borrower
and the Lenders and such Advances will automatically, on the last day of the then existing Interest Period therefor, Convert into Base
Rate Advances.
(d) On
the date on which the aggregate unpaid principal amount of Term Rate Advances comprising any Borrowing shall be reduced, by payment or
prepayment or otherwise, to less than the Borrowing Minimum, such Advances shall automatically Convert into Base Rate Advances.
(e) Upon
the occurrence and during the continuance of any Event of Default under Section 6.01(a), (i) each Term Rate Advance will automatically,
on the last day of the then existing Interest Period therefor, be Converted into Base Rate Advances and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Term Rate Advances shall be suspended.
(f) If
Term SOFR cannot be terminated in accordance with the definition thereof,
(i) the
Agent shall forthwith notify the Borrower and the Lenders that the interest rate cannot be determined for such Term Rate Advances,
(ii) with
respect to Term Rate Advances, each such Advance will automatically, on the last day of the then existing Interest Period therefor, Convert
into a Base Rate Advance (or if such Advance is then a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the
obligation of the Lenders to make Term Rate Advances or to Convert Advances into Term Rate Advances, as applicable, shall be suspended
until the Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist.
SECTION
2.09. Optional Conversion of Advances. The Borrower may on any Business Day, upon notice given to the Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.08
and 2.12, Convert all or any portion of the Advances made to the Borrower of one Type comprising the same Borrowing into Advances of
the other Type; provided, however, that any Conversion of Term Rate Advances into Base Rate Advances shall be made only
on the last day of an Interest Period for such Term Rate Advances, any Conversion of Base Rate Advances into Term Rate Advances shall
be in an amount not less than the minimum amount specified in Section 2.02(b) and no Conversion of any Advances shall result in
more separate Borrowings than permitted under Section 2.02(b). Each such notice of a Conversion shall, within the restrictions specified
above, specify (i) the date of such Conversion, (ii) the Advances to be Converted, and (iii) if such Conversion is into
Term Rate Advances, the duration of the initial Interest Period for each such Advance. Each notice of Conversion shall be irrevocable
and binding on the Borrower.
SECTION
2.10. Optional Prepayments of Advances. The Borrower may, upon notice at least two Business Days prior to the date of such prepayment,
in the case of Term Rate Advances and not later than 11:00 A.M. (New York City time) on the date of such prepayment, in the case of Base
Rate Advances, to the Agent stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding principal amount of the Advances comprising part of the same Borrowing in whole or ratably in
part, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however,
that (x) each partial prepayment shall be in an aggregate principal amount of not less than the Borrowing Minimum or an integral multiple
of the Borrowing Multiple in excess thereof and (y) in the event of any such prepayment of a Term Rate Advance, the Borrower shall
be obligated to reimburse the Lenders in respect thereof pursuant to Section 9.04(c).
SECTION
2.11. Increased Costs. (a) If, due to either (i) the introduction of or any change in or in the interpretation of any law
or any governmental rule, policy, guideline, directive or regulation after the date hereof, or (ii) the compliance with any guideline
or request issued after the date hereof from any central bank or other governmental authority including, without limitation, any agency
of the European Union or similar monetary or multinational authority (whether or not having the force of law), there shall be any increase
in the cost to any Lender of agreeing to make or making, funding or maintaining Term Rate Advances (excluding for purposes of this Section
2.11 any such increased costs resulting from (i) Indemnified Taxes or Other Taxes (as to which Section 2.14 shall govern), (ii) changes
in the basis of taxation of overall net income or overall gross income by the United States or by the foreign jurisdiction or state under
the laws of which such Lender is organized or has its Applicable Lending Office or any political subdivision thereof and (iii) any withholding
Taxes imposed under FATCA), then the Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost.
A certificate as to the amount of such increased cost, submitted to the Borrower and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If
any Lender determines that compliance with any law or any governmental rule, policy, guideline, directive or regulation or any guideline
or request taking effect or issued after the date hereof from any central bank or other governmental authority (whether or not having
the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Lender or
any corporation controlling such Lender and that the amount of such capital or liquidity is increased by or based upon the existence
of such Lender’s commitment to lend and other commitments of this type, then, upon demand by such Lender (with a copy of such demand
to the Agent), the Borrower shall pay to the Agent for the account of such Lender, from time to time as specified by such Lender, additional
amounts sufficient to compensate such Lender or such corporation in the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital or liquidity to be allocable to the existence of such Lender’s commitment to lend hereunder.
A certificate as to such amounts submitted to the Borrower and the Agent by such Lender shall be conclusive and binding for all purposes,
absent manifest error.
(c) Failure
or delay on the part of any Lender to demand compensation pursuant to this Section 2.11 shall not constitute a waiver of such Lender’s
right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 2.11
for any increased costs or reductions incurred more than six months prior to the date that such Lender notifies the Borrower of the circumstances
giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further
that, if the circumstances giving rise to such increased costs or reductions cause such increased costs or reductions to be retroactive,
then the six-month period referred to above shall be extended to include the period of retroactive effect thereof.
(d) For
the avoidance of doubt and notwithstanding anything herein to the contrary, for the purposes of this Section 2.11, (i) the Dodd-Frank
Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines, interpretations or directives by a governmental
authority thereunder or issued by a governmental authority in connection therewith (whether or not having the force of law) and (ii)
all requests, rules, regulations, guidelines, interpretations 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
(whether or not having the force of law), in case for this clause (ii) pursuant to Basel III, shall in each case be deemed to be a change
in law regardless of the date enacted, adopted, issued, promulgated or implemented.
SECTION
2.12. Illegality. Notwithstanding any other provision of this Agreement, if any Lender shall notify the Agent that the introduction
of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other governmental authority
asserts that it is unlawful, for any Lender or its Applicable Lending Office to perform its obligations hereunder to make Term Rate Advances
or to fund or maintain Term Rate Advances hereunder, (a) each Term Rate Advance shall be Converted into a Base Rate Advance and
(b) the obligation of the Lenders to make Term Rate Advances or to Convert Advances into Term Rate Advances shall be suspended until
the Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist; provided,
however, that before making any such demand, each Lender agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Applicable Lending Office if the making of such a designation would allow
such Lender or its Applicable Lending Office to continue to perform its obligations to make such Term Rate Advances or to continue to
fund or maintain such Term Rate Advances and would not, in the judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION
2.13. Payments and Computations. (a) The Borrower shall make each payment hereunder, irrespective of any right of counterclaim
or set-off, not later than 11:00 A.M. (New York City time) on the day when due in Dollars to the Agent at the Agent’s
Account in same day funds. The Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal,
interest or fees ratably (other than amounts payable pursuant to Section 2.11, 2.14 or 9.04(c)) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement. Upon
its acceptance of an Assignment and Assumption and recording of the information contained therein in the Register pursuant to Section 9.07(c),
from and after the effective date specified in such Assignment and Assumption, the Agent shall make all payments hereunder and under
any Notes in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Assumption
shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.
(b) The
Borrower hereby authorizes each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of the Borrower’s accounts with such Lender any amount
so due.
(c) All
computations of interest based on the Base Rate shall be made by the Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Term Rate or the Federal Funds Rate and of ticking fees shall be made by the Agent
on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring
in the period for which such interest or fees are payable. Each determination by the Agent of an interest rate hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(d) Whenever
any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on
the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest
or fee, as the case may be; provided, however, that, if such extension would cause payment of interest on or principal of Term Rate Advances
to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.
(e) Unless
the Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to
the amount then due such Lender. If and to the extent the Borrower shall not have so made such payment in full to the Agent, each Lender
shall repay to the Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such Lender repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes.
(a) Except as required by applicable law, any and all payments by any Loan Party to or for the account of any Lender or the Agent hereunder
or under the Notes or any other documents to be delivered hereunder shall be made, in accordance with Section 2.13 or the applicable
provisions of such other documents, free and clear of and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and interest, additions to tax or penalties with respect thereto (all such taxes, levies, imposts,
deductions, charges, withholdings imposed by any governmental authority and interest, additions to tax or penalties in respect of payments
hereunder or under the Notes being hereinafter referred to as “Taxes”). If any Loan Party or the Agent, as the case
may be, shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any Note or any other documents
to be delivered hereunder to any Lender or the Agent, (i) if such Tax is an Indemnified Tax, the sum payable shall be increased as
may be necessary so that after making all required deductions for Indemnified Taxes (including deductions for Indemnified Taxes applicable
to additional sums payable under this Section 2.14) such Lender or the Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Loan Party or the Agent, as the case may be, shall make such
deductions and (iii) such Loan Party shall pay the full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law. For purposes of this Agreement, “Indemnified Taxes” shall mean any Taxes other than
(w) Taxes imposed on or measured by overall net income, overall gross income, profits, gains or branch profits and franchise taxes
imposed on it in lieu of net income taxes, in each case, imposed by the jurisdiction under the laws of which such Lender or the Agent
(as the case may be) is organized (or any political subdivision thereof), imposed as a result of a present or former connection between
such Lender or the Agent (as the case may be) and the jurisdiction imposing such Tax (other than connections arising from such Lender
or the Agent (as the case may be) 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 this Agreement or the Notes or enforced
any rights under this Agreement or the Notes, or sold or assigned an interest in any rights or obligations hereunder or under any Note)
and, in the case of each Lender, imposed by the jurisdiction of such Lender’s Applicable Lending Office or any political subdivision
thereof, (x) in respect of amounts payable by any Loan Party, United States federal withholding Taxes imposed on amounts payable to or
for the account of such Lender or the Agent (as the case may be) pursuant to a law in effect (i) on the date on which such person becomes
a party hereto or acquires its interest in any Commitment or Advance to the Borrower (including any Note payable by the Borrower) (other
than pursuant to an assignment request by the Borrower under Section 2.20) or (ii) in the case of a Lender, on the date such Lender changes
its Applicable Lending Office, except in each case to the extent that amounts with respect to such Taxes were payable either to such person’s
assignor immediately before such person became a party hereto or to such Lender immediately before it changed its Applicable Lending Office,
(y) Taxes attributable to the failure of such Lender or the Agent (as the case may be) to comply with Sections 2.14(e) and 2.14(f) and
(z) any withholding Taxes imposed under FATCA.
(b) In
addition, the Borrower shall pay any present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that
arise from any payment made hereunder or under the Notes or any other documents to be delivered hereunder or from the execution, delivery
or registration of, performing under, or otherwise with respect to, this Agreement or the Notes or any other documents to be delivered
hereunder other than any such Other Taxes that arise in relation to any assignment or transfer by a Lender of its rights or obligations
hereunder (except where such assignment or transfer is at the written request of the Borrower) (hereinafter referred to as “Other
Taxes”).
(c) Subject
to Sections 2.14(e) and 2.14(f), each Loan Party shall jointly and severally, indemnify each Lender and the Agent for and hold it harmless
against the full amount of Indemnified Taxes or Other Taxes (including, without limitation, Indemnified Taxes and Other Taxes imposed
or asserted by any jurisdiction on amounts payable under this Section 2.14) imposed on or payable or paid by such Lender or the Agent
or required to be withheld or deducted from a payment to such Lender or the Agent (as the case may be) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto. This indemnification shall be made within 30 days from the date such Lender
or the Agent (as the case may be) makes demand therefor. A certificate as to the amount of such payment or liability delivered to a Loan
Party by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest
error.
(d) Within
45 days after the date of any payment of Taxes, the applicable Loan Party shall furnish to the Agent, at its address referred to in Section 9.02,
the original or a certified copy of a receipt evidencing such payment to the extent such a receipt is issued therefor, or other written
proof of payment thereof that is reasonably satisfactory to the Agent.
(e) Any
Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments made hereunder or under any Note
shall deliver to the Borrower and the Agent, at the time or times reasonably requested by the Borrower or the Agent, such properly completed
and executed documentation reasonably requested by the Borrower or the Agent as will permit such payments to be made without withholding
or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Agent, shall deliver such
other documentation prescribed by applicable law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the
Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such
documentation set forth in Section 2.14(e)(ii), Section 2.14(e)(iv) and Section 2.14(e)(v) below) shall not be required if in the Lender’s
reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or
would materially prejudice the legal or commercial position of such Lender. Without limiting the generality of the foregoing:
(i) Each
Lender that is a United States Person shall deliver to the Borrower and the Agent, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender and on the date of the Assignment and Assumption pursuant to which it becomes a Lender
in the case of each other Lender, and from time to time thereafter as reasonably requested in writing by the Borrower (but only so long
as such Lender remains lawfully able to do so), shall provide each of the Agent and the Borrower with executed copies of IRS Form W-9
certifying that such Lender is exempt from United States federal backup withholding tax;
(ii) Each
Lender that is not a United State person, on or prior to the date of its execution and delivery of this Agreement in the case of each
Initial Lender and on the date of the Assignment and Assumption pursuant to which it becomes a Lender in the case of each other Lender,
and from time to time thereafter as reasonably requested in writing by the Borrower (but only so long as such Lender remains lawfully
able to do so), shall provide each of the Agent and the Borrower with whichever of the following is applicable:
(A) in
the case of a Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments
of interest hereunder or under any Note, executed copies of IRS Form W-8BEN-E or W-8BEN establishing an exemption from, or reduction of,
United States federal withholding tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other
applicable payments hereunder or under any Note, IRS Form W-8BEN-E or W-8BEN establishing an exemption from, or reduction of, United States
federal withholding tax pursuant to the “business profits” or “other income” article of such tax treaty;
(B) executed
copies of IRS Form W-8ECI;
(C) in
the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code,
(x) a certificate substantially in the form of Exhibit D-1 to the effect that such Lender is not a “bank” within the meaning
of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section
881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the
Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN-E or W-8BEN;
or
(D) to
the extent a Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E
or W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit D-3, IRS Form W-9, and/or other certification
documents from each beneficial owner, as applicable; provided that if the Lender is a partnership and one or more direct or indirect
partners of such Lender are claiming the portfolio interest exemption, Lender may provide a U.S. Tax Compliance Certificate substantially
in the form of Exhibit D-4 on behalf of each such direct and indirect partner.
(iii) Any Lender that
is not a United States person shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed copies of any other form prescribed by
applicable law as a basis for claiming exemption from or a reduction in United States federal withholding tax, duly completed, together
with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Agent to determine the withholding
or deduction required to be made.
(iv) If
a payment made to a Lender hereunder or under any Note would be subject to United States federal withholding tax imposed by Sections 1471(a)
and 1472(a) of the Internal Revenue Code if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including
those contained in Section 1471(b) or Section 1472(b) of the Internal Revenue Code, as applicable, and the regulations thereunder), such
Lender shall deliver to the Borrower and the Agent, at the time or times prescribed by law and at such time or times reasonably requested
by the Borrower or the Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of
the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Agent as may be necessary for
the Borrower or the Agent to comply with its obligations under FATCA, to determine that such Lender has 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 2.14(e)(iv),
“FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(v) On
or before the date the Agent (or any successor or replacement Agent) becomes the Agent hereunder, it shall deliver to the Borrower two
duly executed copies of either (i) IRS Form W-9 (or any successor forms) certifying that it is exempt from United States federal backup
withholding tax or (ii) a U.S. branch withholding certificate on IRS Form W-8IMY (or any successor forms) evidencing its agreement with
the Borrower to be treated as a U.S. Person (with respect to amounts received on account of any Lender) and IRS Form W-8ECI (or any successor
forms) (with respect to amounts received on its own account), with the effect that, in either case, the Borrower will be entitled to make
payments hereunder to the Agent without withholding or deduction on account of United States federal withholding Tax. The Agent agrees
that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such
form or certification.
(f) Each
Lender agrees that if any form or certification it previously delivered pursuant to Section 2.14(e) expires or becomes obsolete or inaccurate
in any respect, it shall update such form or certification or promptly notify the Borrower and the Agent in writing of its legal inability
to do so. Notwithstanding anything to the contrary herein, for any period with respect to which a Lender has failed to provide the Borrower
with the appropriate form, certificate or other document described in Section 2.14(e), such Lender shall not be entitled to a gross-up
or indemnification under Section 2.14(a) or (c) with respect to Taxes imposed by the United States by reason of such failure, including
any United States federal withholding tax imposed as a result of a failure to satisfy the applicable requirements of FATCA; provided,
however, that should a Lender become subject to Taxes because of its failure to deliver a form, certificate or other document required
hereunder, the Borrower shall take such steps as the Lender shall reasonably request to assist the Lender to recover such Taxes. For purposes
of subsection (e) and this subsection (f), the terms “United States” and “United States person”
shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(g) If
the Agent or any Lender, in its sole discretion exercised in good faith, determines that it has received a refund of any Indemnified Taxes
or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which a Loan Party has made a gross-up payment under
Section 2.14(a) or 2.14(c), it shall pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments
made, or gross-up paid, by such Loan Party under this Section 2.14 with respect to the Indemnified Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Agent or such Lender, as the case may be, and without interest (other than any
interest paid by the relevant governmental authority with respect to such refund), provided that such Loan Party upon the request of the
Agent or such Lender, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by
the relevant governmental authority) to the Agent or such Lender if the Agent or such Lender is required to repay such refund to such
governmental authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the Agent or Lender be required
to pay any amount to a Loan Party pursuant to this paragraph (g) the payment of which would place the Agent or Lender in a less favorable
net after-Tax position than the Agent or Lender would have been in if the Tax subject to indemnification and giving rise to such refund
had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had
never been paid. This Section 2.14(g) shall not be construed to require the Agent or any Lender to make available its tax returns (or
any other information relating to its taxes that it deems confidential) to a Loan Party or any other Person.
SECTION 2.15. Sharing of
Payments, Etc. If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Advances owing to it (other than pursuant to Section 2.11, 2.14, 2.19 or 9.04(c)) in excess of its
Ratable Share of payments on account of the Advances obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the
amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest
or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section 2.15 may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.16. Evidence of
Debt. (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Advance owing to such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder in respect of Advances. The Borrower agrees that upon notice by any Lender
to the Borrower (with a copy of such notice to the Agent) to the effect that a Note is required or appropriate in order for such Lender
to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing to, or to be made by, such Lender, the Borrower
shall promptly execute and deliver to such Lender a Note payable to such Lender in a principal amount up to the Commitment of such Lender
if such request is made prior to the Commitment Termination Date or in a principal amount equal to such Lender’s Advances if such
request is made on or after the Commitment Termination Date.
(b) The
Register maintained by the Agent pursuant to Section 9.07(c) shall include a control account, and a subsidiary account for each Lender,
in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each Assignment and Assumption delivered
to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (iv) the amount of any sum received by the Agent from the Borrower hereunder and each Lender’s share thereof.
(c) Entries
made in good faith by the Agent in the Register pursuant to subsection (b) above, and by each Lender in its account or accounts pursuant
to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement,
absent manifest error; provided, however, that the failure of the Agent or such Lender to make an entry, or any finding that an entry
is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this
Agreement.
SECTION 2.17. Use of Proceeds.
The proceeds of the Advances shall be available (and the Borrower agrees that it shall use such proceeds) solely for general corporate
purposes of the Borrower and its Subsidiaries, including, without limitation, to fund acquisitions otherwise not prohibited hereunder.
SECTION 2.18. [Reserved].
SECTION 2.19. Defaulting
Lenders. (a) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, ticking fees
or other amounts received by the Agent for the account of any Defaulting Lender under this Agreement (whether voluntary or mandatory,
at maturity, pursuant to Article VI or otherwise) shall be applied at such time or times as may be determined by the Agent as follows:
first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, as the Borrower may request (so long
as no Default exists), to the funding of any Advance in respect of which that Defaulting Lender has failed to fund its portion thereof
as required by this Agreement, as determined by the Agent; third, if so determined by the Agent and the Borrower, to be held in a segregated
account and released in order to satisfy obligations of such Defaulting Lender to fund Advances under this Agreement; fourth, to the payment
of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such
Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no 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 sixth, 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 Advance in respect of which such Defaulting Lender has not fully funded its appropriate share,
and (y) such Advances were made at a time when the applicable conditions set forth in Article III were satisfied or waived, such payment
shall be applied solely to pay the Advances of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of
any Advances of such Defaulting Lender and provided further that any amounts held as cash collateral for funding obligations of a Defaulting
Lender shall be returned to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s
obligations hereunder. 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 2.19 shall be deemed paid to and redirected
by such Defaulting Lender, and each Lender irrevocably consents hereto.
(b) No
Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.19, performance
by the Borrower of its obligations shall not be excused or otherwise modified as a result of the operation of this Section 2.19. The rights
and remedies against a Defaulting Lender under this Section 2.19 are in addition to any other rights and remedies which the Borrower,
the Agent or any Lender may have against such Defaulting Lender.
(d) If
the Borrower and the Agent agree in writing in their reasonable determination that a Defaulting Lender should no longer be deemed to be
a Defaulting Lender, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject
to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent
applicable, purchase that portion of outstanding Advances of the other Lenders or take such other actions as the Agent may determine to
be necessary to cause the Advances to be held on a pro rata basis by the Lenders in accordance with their Ratable Share, 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 such Lender’s having been a Defaulting Lender.
SECTION 2.20. Mitigation
Obligations; Replacement of Lenders.
(a) Designation
of a Different Applicable Lending Office. If any Lender requests compensation under Section 2.11 or requires the Borrower to pay additional
amounts (including any indemnity) to any Lender or any governmental authority for the account of any Lender pursuant to Section 2.14,
then such Lender shall (at the request of the Guarantor) use reasonable efforts to designate a different Applicable Lending Office for
funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates,
if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 2.11 or 2.14 as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.
(b) Replacement
of Lenders. If any Lender requests compensation under Section 2.11, or if the Borrower is required to pay additional amounts (including
any indemnity) to any Lender or any governmental authority for the account of any Lender pursuant to Section 2.14 and, in each case, such
Lender has declined or is unable to designate a different Applicable Lending Office in accordance with Section 2.20(a), or if any Lender
is a Defaulting Lender or an Non-Consenting Lender, then the Guarantor may, at its sole expense and effort and so long as no Default is
continuing, upon notice to such Lender and the Agent, require such Lender to assign and delegate, without recourse (in accordance with
and subject to the restrictions contained in, and consents required by, Section 9.07), all of its interests, rights (other than its existing
rights to payments pursuant to Section 2.14) and obligations under this Agreement to an Eligible Assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment); provided that:
(i) the
Agent shall have received the assignment fee specified in Section 9.07(b)(iv), provided that no such fee shall be payable in the
case of an assignment made to an assignee that is an existing Lender;
(ii) such
Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder (including any amounts under Section 9.04(c)) from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(iii) in
the case of any such assignment resulting from a claim for compensation under Section 2.11 or payments required to be made pursuant to
Section 2.14, such assignment will result in a reduction in such compensation or payments thereafter;
(iv) in
the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the
applicable amendment, waiver or consent; and
(v) such
assignment does not conflict with applicable law.
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 Guarantor to require such assignment and delegation cease to apply.
SECTION 2.21. [Reserved].
SECTION 2.22. Benchmark Replacement
Setting.
(a) Benchmark
Replacement. Notwithstanding anything to the contrary herein, upon the occurrence of a Benchmark Transition Event with respect to
any Benchmark, the Agent and the Guarantor may amend this Agreement to replace such Benchmark with a Benchmark Replacement. Any such
amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business
Day after the Agent has posted such proposed amendment to all Lenders and the Guarantor so long as the Agent has not received, by such
time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with
a Benchmark Replacement pursuant to this Section 2.22(a) will occur prior to the applicable Benchmark Transition Start Date.
(b) Benchmark
Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement,
the Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein, any amendments
implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(c) Notices;
Standards for Decisions and Determinations. The Agent will promptly notify the Guarantor 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 Agent will notify the Guarantor of (x) the removal or reinstatement of any tenor of
a Benchmark pursuant to Section 2.22(d) and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or
election that may be made by the Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.22, 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 hereto, except, in each case, as expressly required pursuant
to this Section 2.22.
(d) Benchmark
Unavailability Period. Upon the Guarantor’s receipt of notice of the commencement of a Benchmark Unavailability Period with
respect to a given Benchmark, (i) the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Term Rate Advances
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 or conversion to Base Rate Advances in the amount specified therein and (ii) any outstanding
Term Rate Advances will be deemed to have been converted into Base Rate Advances at the expiration of the Interest Period. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional
amounts required pursuant to Section 9.04(c). During a Benchmark Unavailability Period with respect to any Benchmark or at any time that
a tenor for any then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark
that is the subject of such Benchmark Unavailability Period or such tenor for such Benchmark, as applicable, will not be used in any determination
of the Base Rate.
(e) As
used in this Section 2.22:
“Available Tenor”
means, as of any date of determination and with respect to the then-current Benchmark, (x) 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
or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be
used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement,
in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the
definition of “Interest Period” pursuant to Section 2.22(d).
“Benchmark”
means, 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, with respect to such obligations, interest, fees or
other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate
pursuant to Section 2.22(a).
“Benchmark Replacement”
means, with respect to any Benchmark Transition Event for any then-current Benchmark, the sum of: (a) the alternate benchmark rate that
has been selected by the Agent and the Guarantor as the replacement for such Benchmark giving due consideration to (i) any selection or
recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii)
any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for syndicated
U.S. credit facilities denominated in Dollars at such time and (b) the related Benchmark Replacement Adjustment; provided that,
if such Benchmark Replacement as so determined would be less than zero, such Benchmark Replacement will be deemed to be zero for the purposes
of this Agreement.
“Benchmark Replacement
Adjustment” means, with respect to any replacement of any 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 Agent and the Guarantor 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 syndicated U.S. credit facilities denominated in the Dollars at such time.
“Benchmark Replacement
Date” means the earlier to occur of the following events with respect to the then-current Benchmark:
(1) in
the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement
or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component
used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component
thereof); or
(2) in
the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published
component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such
Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by
reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark
(or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark
Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence
of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published
component used in the calculation thereof).
“Benchmark Transition
Event” means, with respect to the then-current Benchmark, the occurrence of one or more of the following events with respect
to such Benchmark:
(1) a
public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used
in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark
(or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is
no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with
jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator
for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator
for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease
to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the
time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark
(or such component thereof); or
(3) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not,
or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark
Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information
set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the
calculation thereof).
“Benchmark Transition
Start Date” means, with respect to any Benchmark, in the case of a Benchmark Transition Event, the earlier of (a) the applicable
Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective
event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected
date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability
Period” means, with respect to any then-current Benchmark, the period (if any) (a) beginning at the time that a Benchmark Replacement
Date with respect to such Benchmark has occurred if, at such time, no Benchmark Replacement has replaced such Benchmark for all purposes
hereunder in accordance with Section 2.22 and (b) ending at the time that a Benchmark Replacement has replaced such Benchmark for all
purposes hereunder in accordance with Section 2.22.
“Relevant Governmental
Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened
by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
“Unadjusted Benchmark
Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND
LENDING
SECTION 3.01. Conditions
Precedent to Effectiveness of Section 2.01. Section 2.01 of this Agreement shall become effective on and as of the first date
(the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) There
shall have occurred no Material Adverse Change since December 31, 2022.
(b) There
shall exist no action, suit, investigation, litigation or proceeding affecting the Guarantor or any of its Subsidiaries pending or threatened
before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than
the matters described on Schedule 3.01(b) hereto (the “Disclosed Litigation”) or (ii) purports to affect
the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby, and
there shall have been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed
Litigation from that described on Schedule 3.01(b) hereto.
(c) Nothing
shall have come to the attention of the Lenders during the course of their due diligence investigation to lead them to believe that the
Information Memorandum was or has become misleading, incorrect or incomplete in any material respect; without limiting the generality
of the foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties
of the Guarantor and its Subsidiaries as they shall have requested.
(d) All
governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been
obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation
shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(e) The
Borrower shall have notified each Lender and the Agent in writing as to the proposed Effective Date.
(f) The
Borrower shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel
to the Agent).
(g) On
the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of the Guarantor, dated the Effective Date, stating that:
(i) The
representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No
event has occurred and is continuing that constitutes a Default.
(h) The
Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the
Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The
Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16.
(ii) Certified
copies of the resolutions of the Board of Directors of each Loan Party approving this Agreement and the Notes to which it is a party,
and of all documents evidencing other necessary corporate or organizational, as applicable, action and governmental approvals, if any,
with respect to this Agreement and the Notes to which it is a party.
(iii) A
certificate of the Secretary or an Assistant Secretary of each of the Guarantor and the Borrower certifying the names and true signatures
of the officers or other duly authorized signatories of such Loan Party authorized to sign this Agreement and the Notes to which it is
a party and the other documents to be delivered by it hereunder.
(iv) Favorable
opinions of internal counsel to the Loan Parties, Latham & Watkins LLP, New York counsel for the Loan Parties, and Gilbride, Tusa,
Last & Spellane LLC, Connecticut counsel for the Borrower, as to such matters as are customary for a credit agreement of this type
and such other matters as any Lender through the Agent may reasonably request.
(v) A
favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form and substance satisfactory to the Agent.
(i) Each
of the Lenders shall have received, at least two Business Days in advance of the Effective Date, all documentation and other information
reasonably requested by such Lenders as required under applicable “know-your-customer” and anti-money laundering rules and
regulations, including as required by the Patriot Act and, in the case of a Loan Party that qualifies as a “legal entity customer”
under the Beneficial Ownership Regulation, a duly executed and completed Beneficial Ownership Certification.
SECTION 3.02. [Reserved].
SECTION 3.03. Conditions
Precedent to Each Borrowing. The obligation of each Lender to make an Advance on the occasion of each Borrowing shall be subject to
the conditions precedent that the Effective Date shall have occurred and on the date of such Borrowing the following statements shall
be true (and each of the giving of the applicable Notice of Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing
shall constitute a representation and warranty by the Borrower that on the date of such Borrowing such statements are true):
(a) the
representations and warranties contained in Section 4.01 (except the representations set forth in the last sentence of subsection (e)
thereof and in subsection (f)(i) thereof) are correct on and as of such date, before and after giving effect to such Borrowing and
to the application of the proceeds therefrom, as though made on and as of such date, and
(b) no
event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes
a Default.
SECTION 3.04. Determinations
Under Section 3.01 . For purposes of determining compliance with the conditions specified in Section 3.01, each Lender shall
be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Agent responsible for the transactions contemplated
by this Agreement shall have received notice from such Lender prior to the date that the Borrower, by notice to the Lenders, designates
as the proposed Effective Date, specifying its objection thereto. The Agent shall promptly notify the Lenders of the occurrence of the
Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations
and Warranties of the Guarantor. The Guarantor represents and warrants as follows:
(a) Each
Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.
(b) The
execution, delivery and performance by each Loan Party of this Agreement and the Notes to be delivered by it, and the consummation of
the transactions contemplated hereby, are within such Loan Party’s corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) such Loan Party’s charter or by-laws or (ii) any law or any contractual restriction
binding on or affecting any Loan Party.
(c) No
authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by any Loan Party of this Agreement or the Notes to be delivered
by it.
(d) This
Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by
each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective terms.
(e) The
Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 2022, and the related Consolidated statements
of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP,
independent public accountants, fairly present the Consolidated financial condition of the Guarantor and its Subsidiaries as at such date
and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance
with generally accepted accounting principles consistently applied. Since December 31, 2022, there has been no Material Adverse Change.
(f) There
is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without
limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator
that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no
adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described
on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note
or the consummation of the transactions contemplated hereby.
(g) No
Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase
or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) 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.
(i) All
factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender
(including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any
transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such
Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated
or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any
material respect at such time in light of the circumstances under which such information was provided.
(j) The
Guarantor has implemented and maintains in effect policies and procedures reasonably designed to promote compliance by the Guarantor,
its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. The
Guarantor has implemented and maintains in effect policies and procedures that require compliance by the Guarantor, its Subsidiaries and
their respective directors, officers, employees and agents with Additional Anti-Corruption Laws. The Guarantor and its Subsidiaries are,
to the knowledge of the Guarantor, in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of
the Guarantor, any Subsidiary or any of their respective directors or officers, or, to the knowledge of the Guarantor, any of their respective
employees or any agent of the Guarantor or any Subsidiary that will act in any capacity in connection with or benefit from the credit
facility established hereby, is, or is controlled by, a Sanctioned Person or, to the knowledge of any officer, director or employee of
the Guarantor who is engaged in or has approved a transaction with such Person, any Person in which a Sanctioned Person owns, directly
or indirectly, a 50 percent or greater interest.
(k) The
information included in each Beneficial Ownership Certification provided to any Lender on or prior to the Effective Date is true and correct
in all respects as of the date hereof.
(l) No
Loan Party is an Affected Financial Institution.
ARTICLE V
COVENANTS OF THE GUARANTOR
SECTION 5.01. Affirmative
Covenants. So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Guarantor will:
(a) Compliance
with Laws, Etc. Comply, and cause each of its Subsidiaries to comply with all applicable laws, rules, regulations and orders, such
compliance to include, without limitation, compliance with ERISA and Environmental Laws except, in each case, to the extent that failure
to comply would not reasonably be expected to have a Material Adverse Effect; maintain in effect policies and procedures reasonably designed
to promote compliance by the Guarantor, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption
Laws and applicable Sanctions; and maintain in effect policies and procedures that require compliance by the Guarantor, its Subsidiaries
and their respective directors, officers, employees and agents with Additional Anti-Corruption Laws.
(b) Payment
of Taxes, Etc. Pay and discharge, and cause each of its Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all material taxes, assessments and governmental charges or levies imposed upon it or upon its property and (ii) all material
lawful claims that, if unpaid, might by law become a Lien upon its property; provided, however, that neither the Guarantor nor any of
its Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or claim that is being contested in good faith
and by proper proceedings and as to which appropriate reserves are being maintained.
(c) Maintenance
of Insurance. Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies
or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Guarantor or such Subsidiary operates.
(d) Preservation
of Existence, Etc. Preserve and maintain, and cause each of its Subsidiaries to preserve and maintain, its corporate existence, rights
(charter and statutory) and franchises; provided, however, that the Guarantor and its Subsidiaries may consummate any merger or consolidation
permitted under Section 5.02(b) and provided further that neither the Guarantor nor any of its Subsidiaries shall be required to
preserve any right or franchise, or the existence of any Subsidiary of the Guarantor that is not the Borrower, if the Board of Directors
of the Guarantor or the Borrower that is the corporate parent of such Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Guarantor or the Borrower, as the case may be, and that the loss thereof is not disadvantageous
in any material respect to the Guarantor, the Borrower or the Lenders.
(e) Visitation
Rights. At any reasonable time and from time to time, permit the Agent or any of the Lenders or any agents or representatives thereof,
to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, the Guarantor and any
of its Subsidiaries, and to discuss the affairs, finances and accounts of the Guarantor and any of its Subsidiaries with any of their
officers or directors and with their independent certified public accountants.
(f) Keeping
of Books. Keep, and cause each of its Subsidiaries to keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the Guarantor and each such Subsidiary in accordance with generally
accepted accounting principles in effect from time to time.
(g) Maintenance
of Properties, Etc. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its properties that
are used or useful in the conduct of its business in good working order and condition, ordinary wear and tear excepted, except to the
extent that failure to comply would not reasonably be expected to have a Material Adverse Effect.
(h) Reporting
Requirements. Furnish to the Lenders:
(i) as
soon as available and in any event within 50 days after the end of each of the first three quarters of each fiscal year of the Guarantor,
the Consolidated balance sheet of the Guarantor and its Subsidiaries as of the end of such quarter and Consolidated statements of income
and cash flows of the Guarantor and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with
the end of such quarter, duly certified (subject to year-end audit adjustments) by the chief financial officer of the Guarantor as having
been prepared in accordance with generally accepted accounting principles and certificates of the chief financial officer of the Guarantor
as to compliance with the terms of this Agreement and setting forth in reasonable detail the calculations necessary to demonstrate compliance
with Section 5.03, provided that in the event of any change in generally accepted accounting principles used in the preparation of
such financial statements, the Guarantor shall also provide, if necessary for the determination of compliance with Section 5.03,
a statement of reconciliation conforming such financial statements to GAAP;
(ii) as
soon as available and in any event within 95 days after the end of each fiscal year of the Guarantor, a copy of the annual audit report
for such year for the Guarantor and its Subsidiaries, containing the Consolidated balance sheet of the Guarantor and its Subsidiaries
as of the end of such fiscal year and Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for such
fiscal year, in each case accompanied by an opinion acceptable to the Required Lenders by KPMG LLP or other independent public accountants
acceptable to the Required Lenders and certificates of the chief financial officer of the Guarantor as to compliance with the terms of
this Agreement and setting forth in reasonable detail the calculations necessary to demonstrate compliance with Section 5.03, provided
that in the event of any change in generally accepted accounting principles used in the preparation of such financial statements, the
Guarantor shall also provide, if necessary for the determination of compliance with Section 5.03, a statement of reconciliation conforming
such financial statements to GAAP;
(iii) as
soon as possible and in any event within five days after any senior officer of the Guarantor or the Borrower becomes aware or should have
become aware of the occurrence of any Default, the occurrence of each Default continuing on the date of such statement, a statement of
the chief financial officer of the Guarantor setting forth details of such Default and the action that the Guarantor has taken and proposes
to take with respect thereto;
(iv) promptly
after the sending or filing thereof, copies of all reports that the Guarantor sends to any of its securityholders, and copies of all reports
and registration statements that the Guarantor or any Subsidiary files with the Securities and Exchange Commission (the “SEC”)
or any national securities exchange;
(v) promptly
after the commencement thereof, notice of all actions and proceedings before any court, governmental agency or arbitrator affecting the
Guarantor or any of its Subsidiaries of the type described in Section 4.01(f); and
(vi) such
other information respecting the Guarantor or any of its Subsidiaries as any Lender through the Agent may from time to time reasonably
request.
Reports and financial statements
required to be delivered by the Guarantor pursuant to clauses (i), (ii), (iv) and (v) of this Section 5.01(h) shall be deemed
to have been delivered on the date on which it posts such reports, or reports containing such financial statements, on its website on
the Internet at www.omnicomgroup.com or when such reports, or reports containing such financial statements are posted on the SEC’s
website at www.sec.gov; provided that it shall deliver notice that such reports and financial statements are so available and shall deliver
paper copies of the reports and financial statements referred to in clauses (i), (ii), (iv) and (v) of this Section 5.01(h)
to the Agent or any Lender who requests it to deliver such paper copies until written notice to cease delivering paper copies is given
by the Agent or such Lender.
SECTION 5.02. Negative Covenants.
So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Guarantor will not:
(a) Liens,
Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien on or with respect to any
of its properties, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any right to receive
income, other than:
(i) Permitted
Liens,
(ii) purchase
money Liens upon or in any real property or equipment acquired or held by the Guarantor or any Subsidiary in the ordinary course of business
to secure the purchase price of such property or equipment or to secure Debt incurred solely for the purpose of financing the acquisition
of such property or equipment, or Liens existing on such property or equipment at the time of its acquisition (other than any such Liens
created in contemplation of such acquisition that were not incurred to finance the acquisition of such property) or extensions, renewals
or replacements of any of the foregoing for the same or a lesser amount, provided, however, that no such Lien shall extend to or cover
any properties of any character other than the real property or equipment being acquired and fixed improvements thereon or accessions
thereto, and no such extension, renewal or replacement shall extend to or cover any properties not theretofore subject to the Lien being
extended, renewed or replaced,
(iii) the
Liens existing on the Effective Date and described on Schedule 5.02(a) hereto,
(iv) Liens
on property of a Person existing at the time such Person is merged into or consolidated with the Guarantor or any Subsidiary of the Guarantor
or becomes a Subsidiary of the Guarantor; provided that such Liens were not created in contemplation of such merger, consolidation or
acquisition and do not extend to any assets other than those of the Person so merged into or consolidated with the Guarantor or such Subsidiary
or acquired by the Guarantor or such Subsidiary,
(v) Liens
securing Debt permitted by Section 5.02(d)(vii),
(vi) Liens
granted by Subsidiaries of the Guarantor (other than the Borrower) to secure Debt permitted by Section 5.02(d)(iv),
(vii) any
assignment of accounts receivable (A) by and among the Guarantor and its Subsidiaries or (B) pursuant to non-recourse factoring or similar
arrangements or otherwise in an aggregate amount not to exceed in any fiscal year the greater of $500,000,000 (measured as the face value
of such accounts receivable at the time of assignment) and 10.0% of the consolidated accounts receivable of the Guarantor and its Subsidiaries
as reflected in the consolidated balance sheet of the Guarantor and its Consolidated Subsidiaries as of the end of the fiscal year of
the Guarantor most recently ended prior to such assignment for which financial statements have been delivered pursuant to Section 5.01(h)(ii);
and
(viii) (A)
Liens not otherwise permitted by the foregoing clauses of this Section securing Debt or other obligations in an aggregate amount at any
time outstanding plus (B) the aggregate face value at the time of assignment of such accounts receivable assigned, the assignment of which
is not otherwise permitted by the foregoing clauses of this Section, in an aggregate amount not to exceed (1) 15% of Consolidated net
worth of the Guarantor and its Subsidiaries as set forth in the Guarantor’s most recent financial statements delivered pursuant
to Section 5.01(h)(i) minus (2) without duplication of any Debt secured in accordance with this clause (viii), Debt incurred in
accordance with Section 5.02(d)(x).
(b) Mergers,
Etc. Merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to, any Person, or permit the Borrower
to do so.
(c) Accounting
Changes. Make or permit, or permit any of its Subsidiaries to make or permit, any change in accounting policies or reporting practices,
except as required or permitted by generally accepted accounting principles.
(d) Subsidiary
Debt. Permit any of its Subsidiaries to create or suffer to exist, any Debt other than:
(i) Debt
existing on the Effective Date and described on Schedule 5.02(d) hereto (the “Existing Debt”), and any Debt extending
the maturity of, or refunding or refinancing, in whole or in part, the Existing Debt, provided that the principal amount of such Existing
Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing
plus any capitalized fees incurred in connection therewith, and the direct and contingent obligors therefor shall not be changed (other
than to release any contingent obligor), as a result of or in connection with such extension, refunding or refinancing,
(ii) accrued
expenses and trade payables incurred in the ordinary course of business, and obligations under trade letters of credit incurred in the
ordinary course of business, which are to be repaid in full not more than one year after the date on which such Debt is originally incurred
to finance the purchase of goods by such Subsidiary,
(iii) obligations
under letters of credit or surety bonds incurred in the ordinary course of business in support of obligations incurred in connection with
leases, worker’s compensation, unemployment insurance and other social security legislation,
(iv) Debt
owed to the Guarantor or to a wholly owned Subsidiary of the Guarantor,
(v) Debt
of the Borrower under this Agreement and other Debt of the Borrower,
(vi) other
Debt of Subsidiaries of the Guarantor which are not organized under the laws of the United States of America, a State of the United States
of America or the District of Columbia and substantially all of whose assets and business are located or conducted outside the United
States of America,
(vii) Debt
of a Person existing at the time such Person is merged into or consolidated with the Guarantor or any Subsidiary of the Guarantor or becomes
a Subsidiary of the Guarantor; provided that such Debt was not created in contemplation of such merger, consolidation or acquisition,
provided further that the aggregate principal amount of the Debt referred to in this clause (vii) shall not exceed $50,000,000 at
any time outstanding,
(viii) (x)
Debt consisting of any guaranty made by any Subsidiary of the Guarantor in respect of Debt of any Loan Party, provided that such Subsidiary
shall have entered into a guaranty of the Debt of the Guarantor under this Agreement in form and substance reasonably satisfactory to
the Required Lenders and (y) Debt constituting guaranties of the Debt of the Guarantor under this Agreement,
(ix) indorsement
of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and
(x) other
Debt (whether secured or unsecured) in aggregate principal amount at any time outstanding that does not exceed (A) 15% of Consolidated
net worth of the Guarantor and its Subsidiaries as set forth in the Guarantor’s most recent financial statements delivered pursuant
to Section 5.01(h)(i) minus (B) without duplication of any Debt incurred in accordance with this clause (x), Debt secured by Liens
permitted by Section 5.02(a)(viii).
(e) Use
of Proceeds. Request any Borrowing, nor directly or knowingly indirectly use the proceeds thereof, nor permit the Borrower to request
any Borrowing or directly or knowingly indirectly use the proceeds of any Borrowing, (i) 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 or Additional Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction
of or with any Sanctioned Person (or, to the knowledge of the Guarantor, any Person in which a Sanctioned Person owns, directly or indirectly,
a 50 percent or greater interest) or in any Sanctioned Country, or (iii) in any manner that would result in the violation of any Sanctions
applicable to any party hereto.
SECTION 5.03. Financial Covenant.
So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Guarantor will maintain a ratio of Consolidated
Debt for Borrowed Money of the Guarantor and its Subsidiaries to Consolidated EBITDA of the Guarantor and its Subsidiaries (the “Leverage
Ratio”) for the four quarters most recently ended of not greater than 3.50 to 1.00 (or, following the Agent’s receipt
of notice from the Guarantor of a Specified Acquisition (a “Covenant Notice”), for four consecutive fiscal quarters
commencing with the fiscal quarter in which such Specified Acquisition occurs, (without any consent from the Agent or the Lenders), 4.00
to 1.00); provided that there shall be a period of at least two consecutive fiscal quarters after the covenant steps down to 3.50
to 1.00 before a subsequent Covenant Notice is submitted.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.
If any of the following events (“Events of Default”) shall occur and be continuing:
(a) The
Borrower shall fail to pay any principal of any Advance when the same becomes due and payable; or the Borrower shall fail to pay any interest
on any Advance or make any other payment of fees or other amounts payable under this Agreement or any Note within five Business Days after
the same becomes due and payable; or
(b) Any
representation or warranty made by the Guarantor herein or by any Loan Party (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) (i) The
Guarantor shall fail to perform or observe any term, covenant or agreement contained in Section 5.01(d), (e) or (h), 5.02 or 5.03,
or (ii) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its
part to be performed or observed if such failure shall remain unremedied for 30 days after written notice thereof shall have been given
to the Guarantor by the Agent or any Lender; or
(d) The
Guarantor or any of its Material Subsidiaries shall fail to pay any principal of or premium or interest on any Debt that is outstanding
in a principal or notional amount of at least $125,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the Guarantor
or such Material Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating
to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect
of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared
to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to
the stated maturity thereof; or
(e) The
Guarantor or any of its Material Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted
by or against the Guarantor or any of its Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of
the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of
a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Guarantor
or any of its Material Subsidiaries shall take any corporate or organizational, as applicable, action to authorize any of the actions
set forth above in this subsection (e); or
(f) Judgments
or orders for the payment of money in excess of $125,000,000 in the aggregate shall be rendered against the Guarantor or any of its Material
Subsidiaries and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not be an Event of Default under this Section 6.01(f)
if and for so long as (i) the amount of such judgment or order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer, which shall be rated at least “A” by A.M. Best
Company, has been notified of, and has not disputed the claim made for payment of, the amount of such judgment or order; or
(g) (i) Any
Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the
SEC under the Securities Exchange Act of 1934), directly or indirectly, of Voting Stock of the Guarantor (or other securities convertible
into such Voting Stock) representing 50% or more of the combined voting power of all Voting Stock of the Guarantor; or (ii) during
any period of up to 12 consecutive months, commencing after the date of this Agreement, individuals who at the beginning of such 12-month
period were directors of the Guarantor shall cease for any reason to constitute a majority of the board of directors of the Guarantor;
or (iii) the Guarantor shall cease for any reason to own, directly or indirectly, 100% of the Voting Stock of the Borrower; or
(h) Any
material provision of the Guaranty shall cease to be valid and binding on or enforceable against the Guarantor, or the Guarantor shall
so state in writing; or
(i) The
Guarantor or any of its ERISA Affiliates shall incur, or shall be reasonably likely to incur liability in excess of $125,000,000 in the
aggregate as a result of one or more of the following: (i) the occurrence of any ERISA Event; (ii) the partial or complete withdrawal
of the Guarantor or any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization or termination of a Multiemployer
Plan;
then, and in any such event,
the Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the obligation
of each Lender to make Advances to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower, declare the Advances, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the Advances, all such interest and all such amounts shall become
and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to any Loan
Party under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances shall automatically be terminated and
(B) the Advances, all such interest and all such amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty.
The Guarantor hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity
or on any date of a required prepayment or by acceleration, demand or otherwise, of all obligations of each other Loan Party now or hereafter
existing under or in respect of this Agreement and the Notes (including, without limitation, any extensions, modifications, substitutions,
amendments or renewals of any or all of the foregoing obligations), whether direct or indirect, absolute or contingent, and whether for
principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such obligations being the
“Guaranteed Obligations”), and agrees to pay any and all expenses (including, without limitation, fees and expenses
of outside counsel and the allocated costs and expenses of in-house counsel) incurred by the Agent or any Lender in enforcing any rights
under this Agreement. Without limiting the generality of the foregoing, the Guarantor’s liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other Loan Party to the Agent or any Lender under or in respect
of this Agreement and the Notes but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization
or similar proceeding involving such other Loan Party.
SECTION 7.02. Guaranty Absolute.
The Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the
Notes, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights
of the Agent or any Lender with respect thereto. This Guaranty is an absolute and unconditional guaranty of payment when due, and not
of collection, by the Guarantor of the Guaranteed Obligations. The obligations of the Guarantor under or in respect of this Guaranty
are independent of the Guaranteed Obligations or any other obligations of any other Loan Party under or in respect of this Agreement
and the Notes, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective
of whether any action is brought against the Borrower or whether the Borrower is joined in any such action or actions. The liability
of the Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and the Guarantor hereby irrevocably
waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
(a) any
lack of validity or enforceability of any provision of this Agreement or any Note or any agreement or instrument relating thereto;
(b) any
change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other obligations
of the Borrower under or in respect of this Agreement or the Notes, or any other amendment or waiver of or any consent to departure from
this Agreement or the Notes, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of
additional credit to the Borrower or any of its Subsidiaries or otherwise;
(c) any
taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of, or consent to departure
from, any other guaranty, for all or any of the Guaranteed Obligations;
(d) any
manner of application of collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations or any other obligations of any Loan Party under this Agreement
or the Notes or any other assets of the Borrower or any of its Subsidiaries;
(e) any
change, restructuring or termination of the corporate structure or existence of the Borrower or any of its Subsidiaries;
(f) any
failure of the Agent or any Lender to disclose to the Guarantor any information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of the Borrower now or hereafter known to the Agent or such Lender (the Guarantor waiving
any duty on the part of the Agent and the Lenders to disclose such information);
(g) the
failure of any other Person to execute or deliver any other guaranty or agreement or the release or reduction of liability of the Guarantor
or other guarantor or surety with respect to the Guaranteed Obligations; or
(h) any
other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by
the Agent or any Lender that might otherwise constitute a defense available to, or a discharge of, any Loan Party or any other guarantor
or surety.
This Guaranty shall continue
to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or
must otherwise be returned by the Agent or any Lender or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower
or otherwise, all as though such payment had not been made.
SECTION 7.03. Waivers and
Acknowledgments. (a) The Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment,
demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any
of the Guaranteed Obligations and this Guaranty and any requirement that the Agent or any Lender protect, secure, perfect or insure any
Lien or any property subject thereto or exhaust any right or take any action against any Loan Party or any other Person or any collateral.
(b) The
Guarantor hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, whether existing now or in the future.
(c) The
Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election
of remedies by the Agent or any Lender that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of the Guarantor or other rights of the Guarantor to proceed against any of the other
Loan Parties, any other guarantor or any other Person or any collateral and (ii) any defense based on any right of set-off or counterclaim
against or in respect of the obligations of the Guarantor hereunder.
(d) The
Guarantor hereby unconditionally and irrevocably waives any duty on the part of the Agent or any Lender to disclose to the Guarantor any
matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of
any other Loan Party or any of its Subsidiaries now or hereafter known by the Agent or such Lender.
(e) The
Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by this
Agreement and that the waivers set forth in Section 7.02 and this Section 7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation.
The Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against
the Borrower or any other insider guarantor that arise from the existence, payment, performance or enforcement of the Guarantor’s
obligations under or in respect of this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or remedy of the Agent or any Lender against the Borrower or
any other insider guarantor or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from the Borrower or any other insider guarantor, directly
or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or
right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full
in cash and the Commitments shall have expired or been terminated. If any amount shall be paid to the Guarantor in violation of the immediately
preceding sentence at any time prior to the later of the payment in full in cash of the Guaranteed Obligations and all other amounts payable
under this Guaranty and the Commitment Termination Date, such amount shall be received and held in trust for the benefit of Agent and
the Lenders, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Agent
in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations
and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of this Agreement, or to
be held as collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (i) the
Guarantor shall make payment to the Agent or any Lender of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and (iii) the Commitment Termination
Date shall have occurred, the Agent and the Lenders will, at the Guarantor’s request and expense, execute and deliver to the Guarantor
appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the
Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by the Guarantor pursuant to this Guaranty.
SECTION 7.05. Subordination.
The Guarantor hereby subordinates any and all debts, liabilities and other obligations owed to the Guarantor by each other Loan Party
(the “Subordinated Obligations”) to the Guaranteed Obligations to the extent and in the manner hereinafter set forth
in this Section 7.05:
(a) Prior
Payment of Guaranteed Obligations. In any proceeding under any Bankruptcy Law relating to any other Loan Party, the Guarantor agrees
that the Agent and the Lenders shall be entitled to receive payment in full in cash of all Guaranteed Obligations (including all interest
and expenses accruing after the commencement of a proceeding under any Bankruptcy Law, whether or not constituting an allowed claim in
such proceeding (“Post Petition Interest”)) before the Guarantor receives payment of any Subordinated Obligations.
(b) Turn-Over.
After the occurrence and during the continuance of any Event of Default under Section 6.01(e), the Guarantor shall, if the Agent so requests,
collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Agent and the Lenders and deliver
such payments to the Agent on account of the Guaranteed Obligations (including all Post Petition Interest), together with any necessary
endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of the Guarantor under the
other provisions of this Guaranty.
(c) Agent
Authorization. After the occurrence and during the continuance of any Event of Default under Section 6.01(e), the Agent is authorized
and empowered (but without any obligation to so do), in its discretion, (i) in the name of the Guarantor, to collect and enforce, and
to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon to the Guaranteed Obligations (including
any and all Post Petition Interest), and (ii) to require the Guarantor (A) to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and (B) to pay any amounts received on such obligations to the Agent for application to the Guaranteed Obligations
(including any and all Post Petition Interest).
SECTION 7.06. Continuing
Guaranty; Assignments. This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the later of
the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and the Commitment Termination
Date, (b) be binding upon the Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the
Agent and the Lenders and their successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately
preceding sentence, any Lender may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or any portion of its Commitments, the Advances owing to it and the Note or Notes held by it) to any
other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Lender herein
or otherwise, in each case as and to the extent provided in Section 9.07. The Guarantor shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of each of the Lenders.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization
and Authority. Each Lender hereby irrevocably appoints Citibank to act on its behalf as the Agent hereunder and authorizes the Agent
to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article VIII are solely for the benefit of the Agent and the Lenders,
and neither the Guarantor 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 Note (or any other similar term) with reference to the Agent
is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.
Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between
contracting parties.
SECTION 8.02. Rights as a
Lender. (a) The Person serving as the Agent hereunder 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 the Agent and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the 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 Guarantor or any Subsidiary or other Affiliate thereof
as if such Person were not the Agent hereunder and without any duty to account therefor to the Lenders.
SECTION 8.03. Duties of Agent;
Exculpatory Provisions. (a) The Agent’s duties hereunder are solely ministerial and administrative in nature and the Agent shall
not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, the Agent:
(i) shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(ii) shall
not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein); provided that the Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Agent to liability or that is contrary to this Agreement or applicable law, including
for the avoidance of doubt any action that may be in violation of the automatic stay under any debtor relief law or that may effect a
forfeiture, modification or termination of property of a Defaulting Lender in violation of any debtor relief law; and
(iii) shall
not, except as expressly set forth herein, have any duty to disclose, and shall not be liable for the failure to disclose, any information
relating to the Guarantor or any of its Affiliates that is communicated to or obtained by the Agent or any of its Affiliates in any capacity.
(b) The
Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as the Agent shall believe in good faith shall be necessary,
under the circumstances as provided in Sections 9.01 or 6.01) or (ii) in the absence of its own gross negligence or willful
misconduct. The Agent shall be deemed not to have knowledge of any Default or the event or events that give or may give rise to any Default
unless and until the Guarantor or any Lender shall have given notice to the Agent describing such Default and such event or events.
(c) The
Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty, representation or other
information made or supplied in or in connection with this Agreement or the Information Memorandum, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection herewith or therewith or the adequacy, accuracy and/or completeness
of the information contained therein, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document or the perfection or priority of any Lien or security interest created or
purported to be created hereby or (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other
than (but subject to the foregoing clause (ii)) to confirm receipt of items expressly required to be delivered to the Agent.
(d) Nothing
in this Agreement shall require the Agent or any of its Related Parties to carry out any “know your customer” or other checks
in relation to any person on behalf of any Lender and each Lender confirms to the Agent that it is solely responsible for any such checks
it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or any of its Related
Parties.
SECTION 8.04. Reliance by
Agent. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other 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 or otherwise authenticated by the proper Person. The Agent also
may 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 an Advance that by its
terms must be fulfilled to the satisfaction of a Lender, the Agent may presume that such condition is satisfactory to such Lender unless
an officer of the Agent responsible for the transactions contemplated hereby shall have received notice to the contrary from such Lender
prior to the making of such Advance and such Lender shall not have made available to the Agent such Lender’s ratable portion of
the applicable Borrowing. The Agent may consult with legal counsel (who may be counsel for the Guarantor or any other Loan Party), independent
accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice
of any such counsel, accountants or experts.
SECTION 8.05. Delegation
of Duties. The Agent may perform any and all of its duties and exercise its rights and powers hereunder by or through any one or more
sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. Each such sub-agent and the Related Parties of the Agent and each such sub-agent
shall be entitled to the benefits of all provisions of this Article VIII and Section 9.04 (as though such sub-agents were the “Agent”
hereunder) as if set forth in full herein with respect thereto.
SECTION 8.06. Resignation
of Agent. (a) The Agent may at any time give notice of its resignation to the Lenders and the Guarantor. Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in consultation with the Guarantor, to appoint a successor Agent, which
shall be a bank with an office in New York, New York, or an Affiliate of any bank with an office in New York, New York. If no such successor
Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring
Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective
Date”), then the retiring Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Agent meeting
the qualifications set forth above. Whether or not a successor Agent has been appointed, such resignation shall become effective in accordance
with such notice on the Resignation Effective Date.
(b) If
the Person serving as Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the
extent permitted by applicable law, by notice in writing to the Guarantor and such Person remove such Person as Agent and, in consultation
with the Guarantor, appoint a successor Agent. If no such successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective
Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c) With effect from the Resignation
Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Agent shall be discharged from its duties and
obligations as Agent hereunder and (2) except for any indemnity payments owed to the retiring or removed Agent, all payments, communications
and determinations provided to be made by, to or through the Agent shall instead be made by or to each Lender directly, until such time,
if any, as the Required Lenders appoint a successor Agent as provided for above. Upon the acceptance of a successor Agent’s appointment
as Agent hereunder, such successor Agent shall succeed to and become vested with all of the rights, powers, privileges and duties as Agent
of the retiring or removed Agent (other than any rights to indemnity payments owed to the retiring or removed Agent), and the retiring
or removed Agent shall be discharged as Agent from all of its duties and obligations hereunder. 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
Agent. After the retiring or removed Agent’s resignation or removal hereunder, the provisions of this Article VIII and Section 9.04
shall continue in effect for the benefit of such retiring or removed Agent, its sub agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring or removed Agent was acting as Agent.
SECTION 8.07. Non-Reliance
on Agent and Other Lenders. (a) Each Lender confirms to the Agent, each other Lender and each of their respective Related Parties
that it (i) possesses (individually or through its Related Parties) such knowledge and experience in financial and business matters that
it is capable, without reliance on the Agent, any other Lender or any of their respective Related Parties, of evaluating the merits and
risks (including tax, legal, regulatory, credit, accounting and other financial matters) of (x) entering into this Agreement, (y) making
Advances and other extensions of credit hereunder and (z) in taking or not taking actions hereunder, (ii) is financially able to bear
such risks and (iii) has determined that entering into this Agreement and making Advances and other extensions of credit hereunder is
suitable and appropriate for it.
(b) Each
Lender acknowledges that (i) it is solely responsible for making its own independent appraisal and investigation of all risks arising
under or in connection with this Agreement, (ii) that it has, independently and without reliance upon the Agent, any other Lender or any
of their respective Related Parties, made its own appraisal and investigation of all risks associated with, and its own credit analysis
and decision to enter into, this Agreement based on such documents and information as it has deemed appropriate and (iii) it will, independently
and without reliance upon the Agent, any other Lender or any of their respective Related Parties, continue to be solely responsible for
making its own appraisal and investigation of all risks arising under or in connection with, and its own credit analysis and decision
to take or not take action under, this Agreement based on such documents and information as it shall from time to time deem appropriate,
which may include, in each case:
(i) the
financial condition, status and capitalization of the Guarantor and each other Loan Party;
(ii) the
legality, validity, effectiveness, adequacy or enforceability of this Agreement and any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with this Agreement;
(iii) determining
compliance or non-compliance with any condition hereunder to the making of an Advance and the form and substance of all evidence delivered
in connection with establishing the satisfaction of each such condition; and
(iv) the
adequacy, accuracy and/or completeness of the Information Memorandum and any other information delivered by the Agent, any other Lender
or by any of their respective Related Parties under or in connection with this Agreement, the transactions contemplated hereby and thereby
or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with this Agreement.
SECTION 8.08. No Other Duties,
Etc. Anything herein to the contrary notwithstanding, none of the Persons acting as Lead Arrangers or Book Managers listed on the
cover page hereof shall have any powers, duties or responsibilities under this Agreement, except in its capacity, as applicable, as the
Agent or as a Lender hereunder.
SECTION 8.09. Lender
ERISA Representation. (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 Agent and not, for the avoidance of doubt, to or for the benefit of any 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 Section 3(42) of ERISA or otherwise) of one or more Benefit Plans
with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Commitments
or this Agreement,
(ii) the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent
qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts),
PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption
for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined
by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and
performance of the Advances, the 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 Advances, the Commitments and this Agreement, (C) the entrance into, participation in, administration of
and performance of the Advances, 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 Advances, the Commitments and
this Agreement, or
(iv) such
other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Lender.
(b)
In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender
has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a),
such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from
the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the
Agent and not, for the avoidance of doubt, to or for the benefit of any Loan Party, that the Agent is not a fiduciary with respect to
the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Advances,
the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Agent under this Agreement
or any documents related hereto).
As used in this Section:
“Benefit
Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b)
a “plan” as defined in and subject to Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for
purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets
of any such “employee benefit plan” or “plan”.
“PTE”
means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time
to time.
SECTION 8.10. Erroneous
Payments. (a) If the Agent (x) notifies a Lender, or any Person who has received funds on behalf of a Lender (any such Lender or other
recipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Agent has determined
in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth
in such notice from the Agent) received by such Payment Recipient from the Agent or any of its Affiliates were erroneously or mistakenly
transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other
Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal,
interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in
writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of
the Agent pending its return or repayment as contemplated below in this Section 8.10 and held in trust for the benefit of the Agent, and
such Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient
to) promptly, but in no event later than two Business Days thereafter (or such later date as the Agent may, in its sole discretion, specify
in writing), return to the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in
same day funds, together with interest thereon (except to the extent waived in writing by the Agent) in respect of each day from and including
the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Agent
in same day funds at the rate determined by the Agent in accordance with banking industry rules on interbank compensation from time to
time in effect. A notice of the Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without
limiting immediately preceding clause (a), each Lender or any Person who has received funds on behalf of a Lender (and each of their respective
successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment
of principal, interest, fees, distribution or otherwise) from the Agent (or any of its Affiliates) (x) that is in a different amount than,
or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Agent (or
any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of
payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Lender, or other such recipient, otherwise
becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each such case:
(i) it
acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have
been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately
preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such
Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf
to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in
immediately preceding clauses (x), (y) and (z)) notify the Agent of its receipt of such payment, prepayment or repayment, the details
thereof (in reasonable detail) and that it is so notifying the Agent pursuant to this Section 8.10(b).
For the avoidance of doubt,
the failure to deliver a notice to the Agent pursuant to this Section 8.10(b) shall not have any effect on a Payment Recipient’s
obligations pursuant to Section 8.10(a) or on whether or not an Erroneous Payment has been made.
(c) Each
Lender hereby authorizes the Agent to set off, net and apply any and all amounts at any time owing to such Lender hereunder, or otherwise
payable or distributable by the Agent to such Lender hereunder with respect to any payment of principal, interest, fees or other amounts,
against any amount that the Agent has demanded to be returned under immediately preceding clause (a).
(d) (i)
In the event that an Erroneous Payment (or portion thereof) is not recovered by the Agent for any reason, after demand therefor in accordance
with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any
Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous
Payment Return Deficiency”), upon the Agent’s notice to such Lender at any time, then effective immediately (with the
consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances (but not
its Commitments ) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent may specify) (such
assignment of the Advances (but not Commitments), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis
and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Agent in such instance)),
and is hereby (together with the Guarantor) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable,
an agreement incorporating an Assignment and Assumption by reference pursuant to an approved electronic platform as to which the Agent
and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes
evidencing such Advances to the Guarantor or the Agent (but the failure of such Person to deliver any such Notes shall not affect the
effectiveness of the foregoing assignment), (B) the Agent as the assignee Lender shall be deemed to have acquired the Erroneous Payment
Deficiency Assignment, (C) upon such deemed acquisition, the Agent as the assignee Lender shall become a Lender, as applicable, hereunder
with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder
with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification
provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender, (D) the Agent and the Guarantor
shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and
(E) the Agent will reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment.
For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments
shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section
9.07 (but excluding, in all events, any assignment consent or approval requirements (whether from the Guarantor or otherwise)), the Agent
may, in its discretion, sell any Advances acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds
of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale
of such Advance (or portion thereof), and the Agent shall retain all other rights, remedies and claims against such Lender (and/or against
any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable
Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of
principal and interest, received by the Agent on or with respect to any such Advances acquired from such Lender pursuant to an Erroneous
Payment Deficiency Assignment (to the extent that any such Advances are then owned by the Agent) and (y) may, in the sole discretion of
the Agent, be reduced by any amount specified by the Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree
that (x) irrespective of whether the Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is
not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Agent shall
be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds
on behalf of a Lender, to the rights and interests of such Lender, as the case may be) hereunder with respect to such amount (the “Erroneous
Payment Subrogation Rights”) (provided that the Loan Parties’ obligations under this Agreement in respect of the Erroneous
Payment Subrogation Rights shall not be duplicative of such obligations in respect of Advances that have been assigned to the Agent under
an Erroneous Payment Deficiency Assignment) 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 under this Agreement; provided that this Section 8.10 shall not be
interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the obligations
of the Borrower under this Agreement relative to the amount (and/or timing for payment) of such obligations that would have been payable
had such Erroneous Payment not been made by the Agent; provided, further, that for the avoidance of doubt, immediately
preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such
Erroneous Payment that is, comprised of funds received by the Agent from, or on behalf of (including through the exercise of remedies
under this Agreement) the Borrower for the purpose of making a payment on the obligations of the Borrower hereunder.
(f) To
the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives,
and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim
by the Agent for the return of any Erroneous Payment received, including, without limitation, any defense based on “discharge for
value” or any similar doctrine.
(g) Each
party’s obligations, agreements and waivers under this Section 8.10 shall survive the resignation or replacement of the Agent, any
transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction
or discharge of all obligations of the Borrower (or any portion thereof) under this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments,
Etc. No amendment or waiver of any provision of this Agreement or the Notes, nor consent to any departure by any Loan Party therefrom,
shall in any event be effective unless the same shall be in writing and signed by the Required Lenders and (except for waivers or consents
by any Lender) each of the Loan Parties, and then such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that (a) no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following: (i) waive any of the conditions specified in Section 3.01, (ii) change
the percentage of the Commitments or of the aggregate unpaid principal amount of the Advances, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder or change the definition of “Required Lenders”, (iii)
reduce or limit the obligations of the Guarantor under Section 7.01 or release the Guarantor or otherwise limit the Guarantor’s
liability with respect to the obligations owing to the Agent and the Lenders under Article VII or (iv) amend this Section 9.01 and
(b) no amendment, waiver or consent shall, unless in writing and signed by each of the Lenders directly affected thereby, do any of the
following: (i) increase the Commitments of the Lenders, (ii) reduce the principal of, or rate of interest on, the Advances or
any fees or other amounts payable hereunder or (iii) extend the Commitments of the Lenders or postpone any date fixed for any payment
of principal of, or interest on, the Advances or any fees or other amounts payable hereunder, and provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition to the Lenders required above to take such action, affect
the rights or duties of the Agent under this Agreement or any Note.
SECTION 9.02. Notices, Etc.
(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and
except as provided in paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows:
(i) if
to any Loan Party, to it at the address of the Guarantor at 1055 Washington Blvd, Stamford, Connecticut 06901, Attention: Rochelle Tarlowe
(Email: Rochelle.tarlowe@omnicomgroup.com; Telephone No. 203-618-1510) and 280 Park Avenue, New York, New York 10017, Attention: General
Counsel;
(ii) if
to the Agent, to Citibank at One Penns Way, Ops II, Floor 2, New Castle, Delaware 19720, Attention: Agency Operations (Email: agencyabtfsupport@citi.com);
(iii) if
to a Lender, to it at its address (or facsimile number) set forth in its Administrative Questionnaire.
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 with written confirmation of error-free transmission (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 paragraph (b) below, shall be effective as provided in
said paragraph (b).
(b) Electronic
Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures approved by the Agent, provided that the foregoing shall not
apply to notices to any Lender pursuant to Article II if such Lender has notified the Agent that it is incapable of receiving notices
under such Article by electronic communication. The Agent or any Loan Party 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 Agent otherwise prescribes, (i) notices and other communications sent
to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such
as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices
and other communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient,
at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying
the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice or other communication is not sent during
the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business
on the next Business Day for the recipient.
(c) Change
of Address, Etc. Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice
to the other parties hereto.
(d) Platform.
(i) Each
Loan Party agrees that the 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”).
(ii) The
Platform is provided “as is” and “as available.” The Agent Parties (as defined below) 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 any Agent Party in connection with the Communications or the Platform.
In no event shall the Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to
the 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 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 Agent pursuant to this Agreement or the transactions contemplated
hereby which is made available by the Agent to any Lender by posting same on the Platform.
SECTION 9.03. No Waiver;
Remedies. No failure on the part of any Lender or the Agent to exercise, and no delay in exercising, any right hereunder or under
any Note shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 9.04. Costs and Expenses;
Damage Waiver. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of this Agreement, the Notes and the other documents to be delivered hereunder, including,
without limitation, (A) all due diligence, syndication (including printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable fees and expenses of counsel for the Agent with respect
thereto and with respect to advising the Agent as to its rights and responsibilities under this Agreement. The Borrower further agrees
to pay on demand all costs and expenses of the Agent and the Lenders, if any (including, without limitation, reasonable fees and expenses
of outside counsel and the allocated costs and expenses of in-house counsel), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the Notes and the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in connection with the enforcement of rights under this Section 9.04(a).
(b) The
Borrower agrees to indemnify and hold harmless the Agent and each Lender and each of their Affiliates and their officers, directors, employees,
agents and advisors (each, an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities
and expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith) (i) the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the Advances; or (ii) the actual or alleged presence of hazardous
materials on any property of the Guarantor or any of its Subsidiaries or any Environmental Action relating in any way to the Guarantor
or any of its Subsidiaries, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment
by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity in this Section 9.04(b) applies, such indemnity shall
be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, equityholders or
creditors or an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or
not the transactions contemplated hereby are consummated. Notwithstanding anything to the contrary, this Section 9.04(b) shall not
apply with respect to any Taxes other than Taxes that represent losses, claims, damages, etc. arising from any non-tax claim.
(c) If
any payment of principal of, or Conversion of, any Term Rate Advance is made by the Borrower to or for the account of a Lender other than
on the last day of the Interest Period for such Advance as a result of a payment or Conversion pursuant to Section 2.08, 2.10 or
2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason, or by an Eligible Assignee to a
Lender other than on the last day of the Interest Period for such Advance, upon an assignment of rights and obligations under this Agreement
pursuant to Section 9.07 as a result of a demand by the Guarantor pursuant to Section 2.20 or as a result of a payment or Conversion
pursuant to Section 2.08, 2.10 or 2.12, the Borrower shall, upon demand by such Lender (with a copy of such demand to the Agent), pay
to the Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses
that it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund
or maintain such Advance.
(d) Without
prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.11, 2.14 and 9.04 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement
of, a Lender, the termination of the Commitments and the payment in full of principal, interest and all other amounts payable hereunder
and under the Notes and the termination of this Agreement.
(e) Each
Lender severally agrees to indemnify the Agent (to the extent not promptly reimbursed by the Borrower or the Guarantor) from and against
such Lender’s ratable share of any and all losses, claims, damages, liabilities, obligations, penalties, actions, judgments, suits,
costs, disbursements and expenses, joint or several, of any kind or nature (including the fees, charges and disbursements of any advisor
or counsel for such Person that may be imposed on, incurred by, or asserted against the Agent in its capacity as such, in any way relating
to or arising out of this Agreement or any action taken or omitted by the Agent hereunder; provided, however, that no Lender shall be
liable for any portion of such losses, claims, damages, liabilities, obligations, penalties, actions, judgments, suits, costs, disbursements
or expenses resulting from the Agent’s gross negligence or willful misconduct as found in a final, non-appealable judgment by a
court of competent jurisdiction. Without limitation of the foregoing, each Lender agrees to reimburse the Agent for its ratable share
of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Borrower under Section 9.04(a),
to the extent that the Agent is not promptly reimbursed for such costs and expenses by the Borrower or the Guarantor.
(f) The
Loan Parties agree not to assert any claim for special, indirect, consequential or punitive damages against the Agent, any Lender, any
of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, arising
out of or otherwise relating to the Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed use of
the proceeds of the Advances.
SECTION 9.05. Right of Set-off.
Upon either (a) the occurrence and during the continuance of any Event of Default under Section 6.01(a) or 6.01(e) or (b) (i) the occurrence
and during the continuance of any other Event of Default and (ii) the making of the request or the granting of the consent specified by
Section 6.01 to authorize the Agent to declare the Advances due and payable pursuant to the provisions of Section 6.01, each Lender and
each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time
owing by such Lender or such Affiliate to or for the credit or the account of any Loan Party against any and all of the obligations of
such Loan Party now or hereafter existing under this Agreement and any Advance held by such Lender, whether or not such Lender shall have
made any demand under this Agreement or such Advance and although such obligations may be unmatured. Each Lender agrees promptly to notify
the Agent and the applicable Loan Party after any such set-off and application, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender and its Affiliates under this Section 9.05 are in addition
to other rights and remedies (including, without limitation, other rights of set-off) that such Lender and its Affiliates may have.
SECTION 9.06. Binding Effect.
This Agreement shall become effective (other than Section 2.01, which shall only become effective upon satisfaction of the conditions
precedent set forth in Section 3.01) when it shall have been executed by each Loan Party and the Agent and when the Agent shall have
been notified by each Initial Lender that such Initial Lender has executed it and thereafter shall be binding upon and inure to the benefit
of the Loan Parties, the Agent and each Lender and their respective successors and assigns and each Indemnified Party, except that no
Loan Party shall have the right to assign its rights hereunder or any interest herein without the prior written consent of each of the
Lenders.
SECTION 9.07. Assignments
and Participations. (a) Successors and Assigns Generally. No Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of paragraph (b) of this Section 9.07, (ii) by way of participation
in accordance with the provisions of paragraph (d) of this Section 9.07, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of paragraph (f) of this Section 9.07 (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in paragraph (d) of this
Section 9.07 and, to the extent expressly contemplated hereby, the Related Parties of each of the Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments
by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Advances at the time owing to it); provided that any such assignment shall be subject
to the following conditions:
(i) Minimum
Amounts.
(A) in the case of
an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Advances at the time owing to it or
contemporaneous assignments to related Approved Funds that equal at least the amount specified in paragraph (b)(i)(B) of this Section
9.07 in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need
be assigned; and
(B) in any case not
described in paragraph (b)(i)(A) of this Section 9.07, the aggregate amount of the Commitment (which for this purpose includes Advances
outstanding) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Advances of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered
to the Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof, unless each of the Agent and, so long as no Event of Default has
occurred and is continuing, the Guarantor otherwise consents (each such consent not to be unreasonably withheld, delayed or conditioned).
(ii) Proportionate
Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under this Agreement with respect to the Advance or the Commitment assigned.
(iii) Required
Consents. No consent shall be required for any assignment except to the extent required by paragraph (b)(i)(B) of this Section 9.07
and, in addition:
(A) the consent of
the Guarantor (such consent not to be unreasonably withheld, delayed or conditioned) shall be required unless (x) an Event of Default
has occurred and is continuing at the time of such assignment, or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved
Fund; provided that the Guarantor shall be deemed to have consented to any such assignment unless it shall object thereto by written
notice to the Agent within ten Business Days after having received notice thereof and provided, further, that the Guarantor’s
consent shall not be required during the primary syndication of the credit facility established hereby; and
(B) the consent of
the Agent (such consent not to be unreasonably withheld, delayed or conditioned) shall be required if such assignment is to a Person that
is not a Lender, an Affiliate of such Lender or an Approved Fund.
(iv) Assignment
and Assumption. The parties to each assignment shall execute and deliver to the Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500; provided that the Agent may, in its sole discretion, elect to waive such processing and recordation
fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Agent an Administrative Questionnaire.
(v) No
Assignment to Certain Persons. No such assignment shall be made to (A) the Guarantor or any of the Guarantor’s Affiliates or
Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would be
a Defaulting Lender or a Subsidiary of a Defaulting Lender or (C) any Person that was a Competitor as of the Trade Date (in which case
the provisions of Section 9.07(g) shall apply).
(vi) No
Assignment to Natural Persons. No such assignment shall be made to a natural Person (or a holding company, investment vehicle or trust
for, or owned and operated for the primary benefit of, a natural Person).
(vii) Certain
Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment
shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall
make such additional payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright
payment, purchases by the assignee of participations, or other compensating actions, including funding, with the consent of the Guarantor
and the Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to each of which
the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by
such Defaulting Lender to the Agent and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate)
its full pro rata share of all Advances in accordance with its Ratable Share. Notwithstanding the foregoing, in the event that any assignment
of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions
of this clause (vii), then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement
until such compliance occurs.
Subject to acceptance and recording
thereof by the Agent pursuant to paragraph (c) of this Section 9.07, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of
an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall
cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.11 and 9.04 with respect to facts and circumstances
occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the
affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising
from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 9.07(b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation
in such rights and obligations in accordance with paragraph (d) of this Section 9.07 (except in the event that such assignment or transfer
was to a person that was a Competitor as of the Trade Date (in which case the provisions of Section 9.07(g) shall apply)).
(c) Register.
The Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy
of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Advances owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).
The entries in the Register shall be conclusive absent manifest error, and the Loan Parties, the Agent and the Lenders shall treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by any Loan Party and any Lender, at any reasonable time and from time to time upon reasonable
prior notice. The Register is intended to cause the Notes and other obligations hereunder to be in registered form within the meaning
of Section 5f.103-1(c) of the United States Treasury Regulations and Proposed Treasury Regulations Section 1.163-5(b) (or any amended
or successor version) and within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code.
(d) Participations.
(i) Any Lender may
at any time, without the consent of, or notice to, the Guarantor or the Agent, sell participations to any Person (other than the Guarantor
or any of the Guarantor’s Affiliates or Subsidiaries, a natural Person, or a holding company, investment vehicle or trust for, or
owned and operated for the primary benefit of, a natural Person, any Defaulting Lender, or, unless the Guarantor’s prior written
consent is obtained and in accordance with the provisions of Section 9.07(g), a Competitor) (each buyer of a Participation, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment
and/or the Advances owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (C) the Loan Parties,
the Agent 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. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 9.04(e)
with respect to any payments made by such Lender to its Participant(s).
(ii) Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, waiver or consent of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver
described in clause (a) of the first proviso of Section 9.01 that directly affects such Participant. The Borrower agrees that each Participant
shall be entitled to the benefits of Section 2.11 and 2.14 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section 9.07; provided that such Participant agrees to be subject to the provisions
of Sections 2.20 as if it were an assignee under paragraph (b) of this Section 9.07. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.05 as though it were a Lender; provided that such Participant agrees to be subject
to Section 2.15 as though it were a Lender.
(e) Limitations
upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Sections 2.11 and 2.14 than the
applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent
such entitlement to receive a greater payment results from a change in law that occurs after the Participant acquired the applicable participation.
A Participant shall not be entitled to the benefits of Section 2.14 unless such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.14(e) as though it were a Lender (it being understood that the documentation required under Section 2.14(e) shall
be delivered to the participating Lender). Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary
agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and
stated interest) of each Participant’s interest in commitments, advances or other obligations under the Notes and the other documents
to be delivered hereunder (the “Participant Register”); provided that no Lender shall have any obligation to disclose
all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's
interest in any commitments, advances or its other obligations under any Notes or the other documents to be delivered hereunder) to any
Person except to the extent that such disclosure is necessary to establish that such commitment, advance or other obligation is in registered
form under Section 5f.103-1(c) or Proposed Section 1.163-5(b) (or, in each case, any amended or successor sections) of the United States
Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding
any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining
a Participant Register.
(f) Certain
Pledges. 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 or any central
bank having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) No
Assignment or Participations to Competitors. No assignment or participation shall be made or sold, as applicable, to any Person that
was a Competitor as of the date (the “Determination Date”) on which the assigning or selling Lender entered into a
binding agreement to sell all or a portion of its rights and obligations under this Agreement to such Person or assign all or a portion
of its rights and obligations under this Agreement to such Person (unless the Guarantor has consented in writing to such assignment or
participation in writing in its sole and absolute discretion, in which case such Person will not be considered a Competitor for the purpose
of such assignment or participation). For the avoidance of doubt, with respect to any assignee or participant that becomes a Competitor
after the applicable Determination Date (including as a result of the delivery of a notice pursuant to, and/or the expiration of the notice
period referred to in, the definition of “Competitor”), (x) such assignee or participant shall not retroactively be disqualified
from becoming a Lender or participant and (y) the execution by the Guarantor of an Assignment and Assumption with respect to an assignee
will not by itself result in such assignee no longer being considered a Competitor. Any assignment or participation in violation of this
Section 9.07(g) shall not be void, but the other provisions of this Section 9.07(g) shall apply. If any assignment is made or any participation
is sold to any Competitor without the Guarantor’s prior written consent, or if any Person becomes a Competitor after the applicable
Determination Date, the Guarantor may, at its sole expense and effort, upon notice to the applicable Competitor and the Agent, (A) terminate
any Commitment of such Competitor and/or repay all obligations of the Borrower owing to such Competitor in connection with such Commitment
and/or (B) require such Competitor to assign, without recourse (in accordance with and subject to the restrictions contained in this Section
9.07), all of its interest, rights and obligations under this Agreement (including as a participant) to one or more Eligible Assignees
at the lesser of (x) the principal amount thereof and (y) the amount that such Competitor paid to acquire such interests, rights and obligations,
in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder; provided
that the Guarantor shall not be liable for any costs or expenses associated with terminating the Commitment of any Lender if the assignment
made or participation sold to such Lender was consummated without the Guarantor’s prior written consent and in violation of this
Section 9.07. Notwithstanding anything to the contrary contained in this Agreement, Competitors (A) will not (x) have the right to receive
information, reports or other materials provided to Lenders by the Borrower, the Agent or any other Lender, (y) attend or participate
in meetings attended by the Lenders and the Agent, or (z) access any electronic site established for the Lenders or confidential communications
from counsel to or financial advisors of the Agent or the Lenders and (B) (x) for purposes of any consent to any amendment, waiver or
modification of, or any action under, and for the purpose of any direction to the Agent or any Lender to undertake any action (or refrain
from taking any action) under this Agreement, each Competitor will be deemed to have consented in the same proportion as the Lenders that
are not Competitors consented to such matter, and (y) for purposes of voting on any plan of reorganization or plan of liquidation pursuant
to any debtor relief laws (a “Plan”), each Competitor party hereto hereby agrees (1) not to vote on such Plan, (2)
if such Competitor does vote on such Plan notwithstanding the restriction in the foregoing sentence, such vote will be deemed not to be
in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any
other debtor relief laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such
Plan in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other debtor relief laws) and (3) not
to contest any request by any party for a determination by the Bankruptcy Court (or other applicable court of competent jurisdiction)
effectuating the foregoing sentence. The Agent shall have the right, and the Guarantor hereby expressly authorizes the Agent, to (A) post
the list of Competitors provided by the Guarantor and any updates thereto from time to time (collectively, the “Competitor List”)
on the Platform, including that portion of the Platform that is designated for “public side” Lenders and/or (B) provide the
Competitor List to each Lender requesting the same. The Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether
any Lender or participant is a Competitor or (y) have any liability with respect to any assignment or sale of a participation to a Competitor.
SECTION 9.08. Confidentiality.
(a) Each of the Agent and the Lenders agrees to maintain the confidentiality of the Confidential Information, except that Confidential
Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective managers, administrators, trustees,
partners, directors, officers, employees, agents, advisors and other representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Confidential Information and instructed to keep such Confidential
Information confidential), (b) to the extent required by applicable laws or regulations, or requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners),
or by any subpoena or similar legal process, (c) to any other party hereto, (d) in connection with the exercise of any remedies
hereunder or under any Note or any action or proceeding between or among the parties hereto relating to this Agreement or any Note or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those
of this Section 9.08(a), to (i) any assignee of or participant in, or any prospective assignee of or participant in, any of its rights
or obligations under this Agreement, (ii) any actual or prospective party (or its managers, administrators, trustees, partners, directors,
officers, employees, agents, advisors and other representatives) to any swap, derivative or other transaction under which payments are
to be made by reference to a Loan Party and its obligations, this Agreement or payments hereunder or to any credit insurance provider
relating to a Loan Party and its obligations hereunder, (iii) any rating agency, or (iv) the CUSIP Service Bureau or any similar organization,
(g) with the consent of the Guarantor or (h) to the extent such Confidential Information (x) becomes publicly available
other than as a result of a breach of this Section 9.08(a) or (y) becomes available to the Agent, any Lender or any of their respective
Affiliates on a nonconfidential basis from a source other than a Loan Party. In addition, the Agent and the Lenders may disclose the existence
of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and
service providers to the Agent or any Lender in connection with the administration of this Agreement and the Commitments.
(b) Any
Person required to maintain the confidentiality of Confidential Information as provided in Section 9.08(a) shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Confidential
Information as such Person would accord to its own confidential information.
SECTION 9.09. [Reserved].
SECTION 9.10. Governing Law.
This Agreement and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York (whether in
contract, tort or otherwise and whether at law or in equity).
SECTION 9.11. Execution in
Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.12. [Reserved].
SECTION 9.13. Jurisdiction,
Etc. (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, Borough
of Manhattan, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the
Notes (whether in contract, tort or otherwise and whether at law or in equity), or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may
be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court. The Loan Parties
hereby agree that service of process in any such action or proceeding brought in the any such New York State court or in such federal
court may be made upon the Guarantor at its offices at 1055 Washington Blvd, Stamford, Connecticut 06901, Attention: Rochelle Tarlowe,
with a copy to 280 Park Avenue, New York, New York 10017 Attention: General Counsel, and the Loan Parties hereby irrevocably appoint the
Guarantor its authorized agent to accept such service of process, and agrees that the failure of the Guarantor to give any notice of any
such service shall not impair or affect the validity of such service or of any judgment rendered in any action or proceeding based thereon.
Each Loan Party hereby further irrevocably consents to the service of process in any action or proceeding in such courts by the mailing
thereof by any parties hereto by registered or certified mail, postage prepaid, to such Loan Party at its address specified pursuant to
Section 9.02. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Each
of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
or the Notes in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
SECTION 9.14. [Reserved].
SECTION 9.15. [Reserved].
SECTION 9.16. Patriot Act.
Each Lender hereby notifies each Loan Party that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the “Patriot Act”) and the Beneficial Ownership Regulation (31 C.F.R. § 1010.230)
(the “Beneficial Ownership Regulation”), it is required to obtain, verify and record information that identifies each
Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender to identify
such Loan Party in accordance with the Patriot Act and the Beneficial Ownership Regulation.
SECTION 9.17. No Fiduciary
Duty. Each Loan Party agrees that in connection with all aspects of the transactions contemplated hereby and any communications in
connection therewith, such Loan Party and its Affiliates, on the one hand, and the Agent, the lead arrangers and book managers, the syndication
agents, the documentation agents, the Lenders and their respective Affiliates, on the other hand, will have a business relationship that
does not create, by implication or otherwise, any fiduciary duty on the part of the Agent, the lead arrangers and book managers, the syndication
agents, the documentation agents, the Lenders and their respective Affiliates, and no such duty will be deemed to have arisen in connection
with any such transactions or communications.
SECTION 9.18. Acknowledgement
and Consent to Bail-In of Affected Financial Institutions . Notwithstanding anything to the contrary in this Agreement 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 hereunder, 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
(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.
As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the
terms defined):
“Affected Financial Institution”
means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Bail-In Action” means
the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected
Financial Institution.
“Bail-In
Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European
Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country
from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the
United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom
relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than
through liquidation, administration or other insolvency proceedings).
“EEA Financial Institution”
means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of a Resolution
Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition,
or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a)
or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”
means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
“EU Bail-In Legislation Schedule”
means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to
time.
“Resolution
Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“UK Financial
Institution” means 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” means the Bank of England or any other public administrative authority having responsibility for the resolution of
any UK Financial Institution.
“Write-Down
and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such
EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion
powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable
Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution
or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations
of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised
under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related
to or ancillary to any of those powers.
SECTION 9.19. Waiver of Jury Trial.
Each of the Loan Parties, the Agent and the Lenders hereby irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the Notes or the actions of
the Agent or any Lender in the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
|
OMNICOM CAPITAL
INC., as Borrower |
|
|
|
|
By |
/s/
Rochelle M. Tarlowe |
|
Name: |
Rochelle M. Tarlowe |
|
Title: |
President and Chief Executive Officer |
|
|
|
|
OMNICOM GROUP
INC., as Guarantor |
|
|
|
|
By |
/s/
Rochelle M. Tarlowe |
|
Name: |
Rochelle M. Tarlowe |
|
Title: |
Senior Vice President and Treasurer |
|
|
|
|
CITIBANK, N.A.,
as Agent |
|
|
|
|
By |
/s/
Michael Vondriska |
|
Name: |
Michael Vondriska |
|
Title: |
Vice President |
Omnicom:
Delayed Draw Term Loan Agreement
LENDERS: |
CITIBANK, N.A. |
|
|
|
|
By |
/s/ Michael Vondriska |
|
Name: |
Michael Vondriska |
|
Title: |
Vice President |
|
|
|
|
BANK OF AMERICA, N.A. |
|
|
|
|
By |
/s/ Lindsay Sames |
|
Name: |
Lindsay Sames |
|
Title: |
Vice President |
|
|
|
|
BARCLAYS BANK PLC |
|
|
|
By |
/s/ Ronnie Glenn |
|
Name: |
Ronnie Glenn |
|
Title: |
Director |
|
|
|
|
BNP PARIBAS |
|
|
|
|
By |
/s/ Nicole Rodriguez |
|
Name: |
Nicole Rodriguez |
|
Title: |
Director |
|
|
|
|
By |
/s/ Nicolas Doche |
|
Name: |
Nicolas Doche |
|
Title: |
Vice President |
|
|
|
|
DEUTSCHE BANK AG NEW YORK BRANCH |
|
|
|
By |
/s/ Alison Lugo |
|
Name: |
Alison Lugo |
|
Title: |
Vice President |
|
|
|
|
By |
/s/ Ming K Chu |
|
Name: |
Ming K Chu |
|
Title: |
Director |
|
|
|
|
HSBC BANK USA, NATIONAL ASSOCIATION |
|
|
|
|
By |
/s/ Andrew Everett |
|
Name: |
Andrew Everett |
|
Title: |
Senior Vice President |
|
|
|
|
JPMORGAN CHASE BANK, N.A. |
|
|
|
|
By |
/s/ Ryan Becker |
|
Name: |
Ryan Becker |
|
Title: |
Vice President |
Omnicom:
Delayed Draw Term Loan Agreement
|
MIZUHO BANK, LTD. |
|
|
|
|
By |
/s/ Tracy Rahn |
|
Name: |
Tracy Rahn |
|
Title: |
Executive Director |
|
|
|
|
SOCIETE GENERALE |
|
|
|
|
By |
/s/ Jonathan Logan |
|
Name: |
Jonathan Logan |
|
Title: |
Managing Director |
|
|
|
|
SUMITOMO MITSUI BANKING CORPORATION |
|
|
|
|
By |
/s/ Nabeel Shah |
|
Name: |
Nabeel Shah |
|
Title: |
Director |
|
|
|
|
THE TORONTO-DOMINION BANK, NEW YORK BRANCH |
|
|
|
By |
/s/ Victoria Roberts |
|
Name: |
Victoria Roberts |
|
Title: |
Authorized Signatory |
|
|
|
|
U.S. BANK NATIONAL ASSOCIATION |
|
|
|
|
By |
/s/ Daniel E. Von Herzen, CFA |
|
Name: |
Daniel E. Von Herzen, CFA |
|
Title: |
Authorized Officer |
|
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION |
|
|
|
|
By |
/s/ Tracy L. Moosbrugger |
|
Name: |
Tracy L. Moosbrugger |
|
Title: |
Managing Director |
|
|
|
|
BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH |
|
|
|
|
By |
/s/ Cara Younger |
|
Name: |
Cara Younger |
|
Title: |
Managing Director |
|
|
|
|
By |
/s/ Armen Semizian |
|
Name: |
Armen Semizian |
|
Title: |
Managing Director |
|
|
|
|
BANK OF CHINA, NEW YORK BRANCH |
|
|
|
|
By |
/s/ Raymond Qiao |
|
Name: |
Raymond Qiao |
|
Title: |
Executive Vice President |
Omnicom:
Delayed Draw Term Loan Agreement
|
ING BANK N.V., DUBLIN BRANCH |
|
|
|
By |
/s/ Sean Hassett |
|
Name: |
Sean Hassett |
|
Title: |
Director |
|
|
|
|
By |
/s/
Ciaran Dunne |
|
Name: |
Ciaran Dunne |
|
Title: |
Director |
|
|
|
|
STANDARD CHARTERED BANK |
|
|
|
|
By |
/s/ Kristopher Tracy |
|
Name: |
Kristopher Tracy |
|
Title: |
Director, Financing Solutions |
Omnicom:
Delayed Draw Term Loan Agreement
SCHEDULE I
OMNICOM GROUP
DELAYED DRAW TERM LOAN AGREEMENT
COMMITMENTS OF INITIAL LENDERS
Name of Initial Lender | |
Commitment | |
Citibank, N.A. | |
$ | 42,000,000 | |
Bank of America, N.A. | |
$ | 42,000,000 | |
Barclays Bank PLC | |
$ | 42,000,000 | |
BNP Paribas | |
$ | 42,000,000 | |
Deutsche Bank AG New York Branch | |
$ | 42,000,000 | |
HSBC Bank USA, National Association | |
$ | 42,000,000 | |
JPMorgan Chase Bank, N.A. | |
$ | 42,000,000 | |
Mizuho Bank, Ltd. | |
$ | 42,000,000 | |
Société Générale | |
$ | 42,000,000 | |
Sumitomo Mitsui Banking Corporation | |
$ | 42,000,000 | |
The Toronto-Dominion Bank, New York Branch | |
$ | 42,000,000 | |
U.S. Bank National Association | |
$ | 42,000,000 | |
Wells Fargo Bank, National Association | |
$ | 42,000,000 | |
Banco Bilbao Vizcaya Argentaria, S.A. New York Branch | |
$ | 13,500,000 | |
Bank of China, New York Branch | |
$ | 13,500,000 | |
ING Bank N.V., Dublin Branch | |
$ | 13,500,000 | |
Standard Chartered Bank | |
$ | 13,500,000 | |
Total of Commitments: | |
$ | 600,000,000 | |
Omnicom: Delayed Draw Term Loan Agreement
SCHEDULE 3.01(b)
DISCLOSED LITIGATION
None.
Omnicom: Delayed Draw Term Loan Agreement
SCHEDULES 5.02(a) AND 5.02(d)
EXISTING LIENS AND EXISTING DEBT
Obligations under Finance Leases | |
Various | |
$ | 828,000,000 | |
Lien number 0002484631 against
the Borrower in favor of the State of Connecticut Department of Labor filed on October 23, 2007 in connection with an amount due and owing
of $2,752.88.
Omnicom: Delayed Draw Term Loan Agreement
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$_______________ |
Dated: _______________,
20__ |
FOR VALUE RECEIVED, the undersigned,
OMNICOM CAPITAL INC., a Connecticut corporation (the “Borrower”), HEREBY PROMISES TO PAY to _________________________
(the “Lender”) for the account of its Applicable Lending Office on the Maturity Date (each as defined in the Credit
Agreement referred to below) applicable to the Lender the principal sum of U.S.$[amount of the Lender’s Commitment in figures] or,
if less, the aggregate principal amount of the Advances made by the Lender to the Borrower pursuant to the Delayed Draw Term Loan Agreement
dated as of January 3, 2024 among the Borrower, the Guarantor, the financial institutions party thereto and Citibank, N.A., as Agent for
the Lender and the other financial institutions party thereto (as amended or modified from time to time, the “Credit Agreement”;
the terms defined therein being used herein as therein defined) outstanding on the Maturity Date.
The Borrower promises to pay
interest on the unpaid principal amount of each Advance from the date of such Advance until such principal amount is paid in full, at
such interest rates, and at such times, as are specified in the Credit Agreement.
Both principal and interest
in respect of each Advance in Dollars are payable in lawful money of the United States of America to the Agent at its account maintained
at 388 Greenwich Street, New York, New York 10013, in same day funds. Each Advance owing to the Lender by the Borrower pursuant to the
Credit Agreement, and all payments made on account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto which is part of this Promissory Note.
This Promissory Note shall be
governed by, and construed in accordance with, the laws of the State of New York.
This Promissory Note is one
of the Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other things, (i) provides
for the making of Advances by the Lender to the Borrower from time to time in an aggregate amount not to exceed at any time outstanding,
subject to Section 2.10(b) of the Credit Agreement, 103% of the Dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Advance being evidenced by this Promissory Note and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on account of principal hereof prior to the maturity hereof
upon the terms and conditions therein specified.
Omnicom: Delayed Draw Term Loan Agreement
| OMNICOM CAPITAL INC. |
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| By | |
| | Title: |
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Omnicom: Delayed Draw Term Loan Agreement
ADVANCES AND PAYMENTS OF PRINCIPAL
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Omnicom: Delayed Draw Term Loan Agreement
EXHIBIT B - FORM OF NOTICE OF
BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
One Penns Way, Building #2
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications
Department
Ladies and Gentlemen:
The undersigned, OMNICOM CAPITAL
INC. (the “Borrower”), refers to the Delayed Draw Term Loan Agreement, dated as of January 3, 2024 (as amended or modified
from time to time, the “Credit Agreement”, the terms defined therein being used herein as therein defined), among the
Borrower, the Guarantor, the financial institutions party thereto and Citibank, N.A., as Agent for the Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement,
and in that connection sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required
by Section 2.02(a) of the Credit Agreement:
(i) The
Business Day of the Proposed Borrowing is _______________, 20__.
(ii) The
Type of Advances comprising the Proposed Borrowing is [Base Rate Advances] [Term Rate Advances].
(iii) The
aggregate amount of the Proposed Borrowing is $_______________.
[(iv) The initial
Interest Period for each Term Rate Advance made as part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies
that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the
representations and warranties contained in Section 4.01 of the Credit Agreement (except the representations set forth in the last
sentence of subsection (e) thereof and in subsection (f)(i) thereof)) are correct, before and after giving effect to the Proposed
Borrowing and to the application of the proceeds therefrom, as though made on and as of such date; and
Omnicom: Delayed Draw Term Loan Agreement
(B) no event
has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds therefrom, that
constitutes a Default.
| Very truly yours, |
| |
| OMNICOM CAPITAL INC. |
| | |
| By | |
| | Title: |
|
Omnicom: Delayed Draw Term Loan Agreement
CUSIP Number:___________________
EXHIBIT C - FORM OF
ASSIGNMENT AND ASSUMPTION
Assignment
and Assumption
This Assignment and Assumption
(the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between
[the][each]1 Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2
Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees]3 hereunder are several and not joint.]4 Capitalized terms used but
not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein
in full.
For an agreed consideration,
[the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby
irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by the Agent as contemplated below (i) all of [the Assignor’s][the
respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit
Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest
identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] (including without limitation
any letters of credit, guarantees, and swingline loans), and (ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective
capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any
of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold
and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively
as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except
as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
1. |
Assignor[s]: |
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[Assignor [is] [is not] a Defaulting Lender] |
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2. |
Assignee[s]: |
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| 1 | For bracketed language here and elsewhere in this form relating
to the Assignee(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple
Assignors, choose the second bracketed language. |
| 2 | For bracketed language here and elsewhere in this form relating
to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple
Assignees, choose the second bracketed language. |
| 4 | Include bracketed language if there are either multiple Assignors
or multiple Assignees. |
Omnicom: Delayed Draw Term Loan Agreement
|
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]] |
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3. |
Borrower(s): |
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4. |
Administrative Agent: |
Citibank, N.A., as the administrative agent under the Credit
Agreement |
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5. |
Credit Agreement: |
The Delayed Draw Term Loan Agreement dated as of January 3,
2024 among Omnicom Capital Inc., as Borrower, Omnicom Group Inc., as Guarantor, the financial institutions party thereto and Citibank,
N.A, as Agent for the Lenders |
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6. |
Assigned Interest[s]: |
Assignor[s]5 | |
Assignee[s]6 | | |
Aggregate
Amount of
Commitment/
Advances for
all Lenders8 | | |
Amount of
Commitment/
Advances
Assigned8 | | |
Percentage
Assigned of
Commitment/ Advances9 | | |
CUSIP
Number | |
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$ | | | |
$ | | | |
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[7. |
Trade Date: ______________]10 |
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[Page break]
| 5 | List each Assignor, as appropriate. |
| 6 | List each Assignee, as appropriate. |
| 8 | Amount to be adjusted by the counterparties to take into
account any payments or prepayments made between the Trade Date and the Effective Date. |
| 9 | Set forth, to at least 9 decimals, as a percentage of the
Commitment/Advances of all Lenders thereunder. |
| 10 | To be completed if the Assignor(s) and the Assignee(s) intend
that the minimum assignment amount is to be determined as of the Trade Date. |
Omnicom: Delayed Draw Term Loan Agreement
Effective Date: _____________ ___, 20___ [TO BE
INSERTED BY AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
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ASSIGNOR[S]11 |
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[NAME OF ASSIGNOR] |
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By: |
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Title: |
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[NAME OF ASSIGNOR] |
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By: |
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Title: |
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ASSIGNEE[S]12 |
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[NAME OF ASSIGNEE] |
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By: |
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Title: |
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[NAME OF ASSIGNEE] |
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By: |
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Title: |
[Consented to and]13 Accepted: |
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[NAME OF ADMINISTRATIVE AGENT], as |
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Administrative Agent |
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By: |
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Title: |
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[Consented to:]14
| 11 | Add additional signature blocks as needed. Include both Fund/Pension
Plan and manager making the trade (if applicable). |
| 12 | Add additional signature blocks as needed. Include both Fund/Pension
Plan and manager making the trade (if applicable). |
| 13 | To be added only if the consent of the Administrative Agent
is required by the terms of the Credit Agreement. |
| 14 | To be added only if the consent of the Guarantor is required
by the terms of the Credit Agreement. |
Omnicom: Delayed Draw Term Loan Agreement
[NAME OF RELEVANT PARTY]
Omnicom: Delayed Draw Term Loan Agreement
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations
and Warranties.
1.1 Assignor[s].
[The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest,
(ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated
hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any collateral thereunder, (iii) the financial condition of any Loan Party, any of its Subsidiaries or
Affiliates or any other Person obligated in respect of the Credit Agreement, or (iv) the performance or observance by the Guarantor, any
of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under the Credit Agreement.
1.2. Assignee[s].
[The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all the requirements to be an assignee under Section 9.07(b)(iii), (v) and (vi) of the Credit Agreement (subject
to such consents, if any, as may be required under Section 9.07(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date,
it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the
type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned
Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has
been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.01(h) thereof,
as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter
into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon
the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is organized
under the laws of a jurisdiction outside of the United States, attached to the Assignment and Assumption is any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees
that (i) it will, independently and without reliance on the Administrative Agent, [the][any] Assignor or any other Lender, and based on
such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender.
2. Payments.
From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including
payments of principal, interest, fees and other amounts) to [the][the relevant] Assignee whether such amounts have accrued prior to, on
or after the Effective Date. The Assignor[s] and the Assignee[s] shall make all appropriate adjustments in payments by the Administrative
Agent for periods prior to the Effective Date or with respect to the making of this assignment directly between themselves. Notwithstanding
the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after
the Effective Date to [the][the relevant] Assignee.
Omnicom: Delayed Draw Term Loan Agreement
3. General
Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute
one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be as effective
as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by,
and construed in accordance with, the laws of the State of New York.
Omnicom: Delayed Draw Term Loan Agreement
EXHIBIT D-1
[FORM OF]
U.S. TAX
COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to
the Delayed Draw Term Loan Agreement dated as of January 3, 2024 (as amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), among Omnicom Capital Inc., Omnicom Group Inc., the financial institutions party thereto and Citibank,
N.A., as Agent for the Lenders.
Pursuant to the provisions of
Section 2.14 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Advances(s)
(as well as any Note(s) evidencing such Advances(s)) in respect of which it is providing this certificate, (ii) it is not a bank within
the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of the Borrower within the
meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (iv) it is not a controlled foreign corporation related to the Borrower
as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished
the Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this
certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so
inform the Borrower and the Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Agent with a properly
completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in
either of the two calendar years preceding such payments.
Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER] |
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By: |
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Name: |
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Title: |
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Date: ________ __, 20[ ]
Omnicom:
Delayed Draw Term Loan Agreement
EXHIBIT D-2
[FORM OF]
U.S. TAX
COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to
the Delayed Draw Term Loan Agreement dated as of January 3, 2024 (as amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), among Omnicom Capital Inc., Omnicom Group Inc., the financial institutions party thereto and Citibank,
N.A., as Agent for the Lenders.
Pursuant to the provisions of
Section 2.14 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation
in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal
Revenue Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal
Revenue Code.
The undersigned has furnished its participating Lender
with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned
agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing,
and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in
either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT] |
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By: |
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Name: |
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Title: |
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Date: ________ __, 20[ ]
Omnicom:
Delayed Draw Term Loan Agreement
EXHIBIT D-3
[FORM OF]
U.S. TAX
COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to
the Delayed Draw Term Loan Agreement dated as of January 3, 2024 (as amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), among Omnicom Capital Inc., Omnicom Group Inc., the financial institutions party thereto and Citibank,
N.A., as Agent for the Lenders.
Pursuant to the provisions of
Section 2.14 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect
of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation,
(iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending
credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A)
of the Internal Revenue Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within
the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect partners/members is a controlled
foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished
its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming
the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN
or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.
By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned
shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and
currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the
two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT] |
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By: |
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Name: |
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Title: |
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Date: ________ __, 20[ ]
Omnicom:
Delayed Draw Term Loan Agreement
EXHIBIT D-4
[FORM OF]
U.S. TAX
COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For
U.S. Federal Income Tax Purposes)
Reference is hereby made to
the Delayed Draw Term Loan Agreement dated as of January 3, 2024 (as amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), among Omnicom Capital Inc., Omnicom Group Inc., the financial institutions party thereto and Citibank,
N.A., as Agent for the Lenders.
Pursuant to the provisions of
Section 2.14 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Advances(s) (as well
as any Note(s) evidencing such Advances(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members
are the sole beneficial owners of such Advances(s) (as well as any Note(s) evidencing such Advances(s)), (iii) with respect to the extension
of credit pursuant to this Credit Agreement, neither the undersigned nor any of its direct or indirect partners/members is a bank extending
credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A)
of the Internal Revenue Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within
the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect partners/members is a controlled
foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished
the Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming
the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN
or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.
By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned
shall promptly so inform the Borrower and the Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Agent
with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned,
or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER] |
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By: |
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Name: |
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Title: |
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Date: ________ __, 20[ ]
Omnicom:
Delayed Draw Term Loan Agreement
Exhibit D-4
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