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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported):
August 22, 2023
US Foods Holding Corp.
(Exact name of registrant as specified in its
charter)
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Delaware |
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001-37786 |
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26-0347906 |
(State or other jurisdiction of incorporation) |
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(Commission File Number) |
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(I.R.S. Employer Identification No.) |
9399 W. Higgins Road, Suite 100, Rosemont, IL 60018
(Address of principal executive offices) (Zip Code)
(847) 720-8000
(Registrant’s telephone number, including area
code)
Not Applicable
(Former name, former address and former fiscal year,
if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
Common Stock, Par Value $0.01 |
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USFD |
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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 August 22, 2023 US Foods, Inc. (“US Foods”)
entered into an amendment (the “Eleventh Amendment”) to its term loan credit agreement (as so amended, the “Credit Agreement”)
with a syndicate of lenders to lower the interest rate margins on the class of term loans thereunder scheduled to mature on November 22,
2028 to 2.50% for borrowings that bear interest based upon Term SOFR (as defined in the Credit Agreement) and 1.50% for borrowings that
bear interest based upon ABR (as defined in the Credit Agreement).
The foregoing description of the Amendment is not complete and is
qualified in its entirety by the full text of the Amendment, which is attached as Exhibit 10.1 to this Current Report on Form 8-K and
incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant.
The information contained in Item 1.01 concerning US Foods’
direct financial obligations under the Credit Agreement is hereby incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. |
Description |
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10.1 |
Eleventh Amendment to the Credit Agreement, dated as August 22, 2023, among US Foods, Inc., the other Loan Parties party thereto, Citicorp North America, Inc., as Administrative Agent and Collateral Agent, Citibank, N.A. and the Lenders party thereto. |
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.
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US FOODS HOLDING CORP. |
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Date: August 22, 2023 |
By: |
/s/ Dirk J. Locascio |
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Dirk J. Locascio |
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Chief Financial Officer |
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US Foods Holding Corp. 8-K
Exhibit 10.1
ELEVENTH AMENDMENT
ELEVENTH AMENDMENT, dated as of August 22,
2023 (this “Amendment”), to the Credit Agreement referred to below, among US FOODS, INC., as the Borrower, the
other Loan Parties party hereto, CITICORP NORTH AMERICA, INC., as administrative agent (in such capacity, the “Administrative
Agent”) and collateral agent (in such capacity, the “Collateral Agent”) and Citibank, N.A., as the
new term loan lender referred to below (in such capacity, the “New Term Loan Lender”) and the Cashless Term
Lenders (as defined below) party hereto. Capitalized terms are used herein as defined in Section 1 hereof.
RECITALS
WHEREAS, the Borrower is party to the Amended
and Restated Term Loan Credit Agreement dated as of June 27, 2016, by and among the Borrower, the Administrative Agent and Collateral
Agent and the banks and other financial institutions party thereto, as Lenders (as amended, restated, modified and supplemented
from time to time prior to the Eleventh Amendment Effective Date (as defined below), the “Existing Credit Agreement”;
the Existing Credit Agreement as amended pursuant to this Amendment, the “Amended Credit Agreement”);
WHEREAS, pursuant to subsections 2.8 and
3.4(h) of the Existing Credit Agreement, the Borrower has requested to establish “Specified Refinancing Term Loan Commitments”
and to incur “Specified Refinancing Term Loans” from “Specified Refinancing Lenders” to refinance in full
all Incremental B-2021 Term Loans outstanding under the Existing Credit Agreement as of immediately prior to the Eleventh Amendment
Effective Date (the “Existing Term Loans”) with the cash proceeds of, or an allocation of the principal amount
of, the Repriced Term Loans (as defined and described below);
WHEREAS, the Repriced Term Loans shall have
the same terms under the Loan Documents as the Existing Term Loans, other than as set forth in Section 3 of this Amendment
(the amendments and modifications set forth in Section 3, the “Repricing Amendments”);
WHEREAS, the Borrower has requested that
each of (i) the New Term Loan Lender and (ii) the Lenders holding Existing Term Loans that have selected the “Cashless
Settlement Option” on a Continuing Lender Election substantially in the form of Exhibit A hereto (a “Continuing
Election”), which Continuing Election has been executed and delivered to the Administrative Agent prior to 5:00 p.m.,
New York City time, on Wednesday, August 16, 2023 (each such lender choosing the “Cashless Settlement Option”
on a Continuing Election, a “Cashless Term Lender”) extend credit to the Borrower in the form of “Rollover
Indebtedness” pursuant to subsection 3.4(h) of the Existing Credit Agreement in an aggregate principal amount under clauses
(i) and (ii) above of $721,500,000 (collectively, the “Repriced Term Loans” and the commitments provided by
the New Term Loan Lender and the Cashless Term Lenders hereunder, the “Repriced Term Loan Commitments”), the
cash proceeds of which, or an allocation of the principal amount thereof, will be used to repay in full the outstanding principal
amount of all Existing Term Loans (the “Repricing Transactions”), on the terms and subject to the conditions
set forth herein;
WHEREAS, the Borrower, the New Term Loan
Lender, the Cashless Term Lenders and the Administrative Agent are willing to agree to this Amendment on the terms set forth herein;
WHEREAS, the Borrower, the other Loan Parties
and the Collateral Agent are party to a Guarantee and Collateral Agreement, dated as of May 11, 2011, as amended by the First Credit
Agreement Amendment (as further amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof,
the “Guarantee and Collateral Agreement”), and have agreed to provide certain acknowledgements and reaffirmations
that the grant of security interests contained in the Guarantee and Collateral Agreement shall continue in full force and effect
notwithstanding the terms of this Amendment and the effectiveness of the Amended Credit Agreement;
NOW, THEREFORE, in consideration of the
mutual covenants and agreements herein contained and for other good and valuable consideration, the sufficiency and receipt of
which is hereby acknowledged, the parties hereto hereby agree as follows:
Section 1.
Defined Terms; References.
(a)
Unless otherwise specifically defined herein, each term used herein that is defined in the Existing Credit Agreement has the meaning
assigned to such term in the Existing Credit Agreement, provided that, if the definition of such term is amended
hereby, then such term shall have the meaning assigned thereto in the Amended Credit Agreement.
(b)
From and after the Eleventh Amendment Effective Date, all references to the “Credit Agreement” in any Loan Document
and all references in the Existing Credit Agreement to “this Agreement”, “hereunder”, “hereof”
or words of like import referring to the Existing Credit Agreement, shall, unless expressly provided otherwise or the context clearly
requires otherwise, refer to the Amended Credit Agreement.
Section 2.
Provisions Relating to Repriced Term Loans
(a)
Repriced Term Loans. Subject to the terms and conditions hereof and pursuant to subsection 2.8 of the Existing Credit Agreement,
each Cashless Term Lender hereby agrees to make Repriced Term Loans in an aggregate principal amount equal to such Lender’s
Existing Term Loans (or such lesser amount corresponding to the amount of Repriced Term Loans as may be allocated to such Cashless
Term Lender by the Administrative Agent, if any) on the Eleventh Amendment Effective Date and approves the amendments to the Existing
Credit Agreement as set forth in this Amendment. Subject to the terms and conditions hereof and pursuant to subsection 2.8 of the
Existing Credit Agreement, the New Term Loan Lender agrees to make, in a single draw on the Eleventh Amendment Effective Date,
Repriced Term Loans in Dollars to the Borrower in the aggregate principal amount set forth on Schedule I hereto. The Repriced
Term Loans shall have the same terms as the Existing Term Loans, except as set forth in and modified by this Amendment. The Administrative
Agent hereby consents, pursuant to subsection 2.8(b) of the Existing Credit Agreement, to the inclusion of the New Term Loan Lender
as an Additional Specified Refinancing Lender (if and to the extent such consent is required thereunder).
(b)
Use of Proceeds. The cash proceeds of the Repriced Term Loans made by the New Term Loan Lender shall be applied toward the
payment of the aggregate outstanding principal amount of the Existing Term Loans that are not exchanged for Repriced Term Loans.
Upon the Eleventh Amendment Effective Date after giving effect to this Amendment, all Existing Term Loans shall be repaid in full
(in cash or by exchange) and no longer outstanding.
(c)
Credit Agreement Governs. Effective as of the Eleventh Amendment Effective Date, the Repriced Term Loans shall be “Loans”,
“Term Loans” and, unless the context clearly requires otherwise, “Incremental B-2021 Term Loans” under
the Amended Credit Agreement and shall be subject to the provisions (including any provisions restricting the rights, or regarding
the obligations, of the Loan Parties or any provisions regarding the rights of the Term Loan Lenders and the other Secured Parties)
of the Amended Credit Agreement and the other Loan Documents.
(d)
Notice. The Borrower shall provide the Administrative Agent notice prior to 9:30 A.M. (or such shorter period as may be
agreed to by the Administrative Agent in its reasonable discretion), New York City time, on the Eleventh Amendment Effective Date
specifying the amount of the Repriced Term Loans to be borrowed on the Eleventh Amendment Effective Date. Upon receipt of such
notice the Administrative Agent shall promptly notify the New Term Loan Lender and Cashless Term Lenders thereof. The New Term
Loan Lender will make the amount of its Repriced Term Loan Commitments available for the account of the Borrower at the office
of the Administrative Agent specified in subsection 10.2 of the Existing Credit Agreement prior to 12:00 noon, New York City
time (or, if the time period for the Borrower’s delivery of notice was extended, such later time as agreed to by the Borrower
and the Administrative Agent in their reasonable discretion), on the Eleventh Amendment Effective Date in funds immediately available
to the Administrative Agent.
(e)
Principal and Interest. The principal amount of the Repriced Term Loans shall be payable after the Eleventh Amendment Effective
Date as and to the extent set forth in subsection 2.2(d) of the Amended Credit Agreement for Incremental B-2021 Term Loans
as of the Eleventh Amendment Effective Date. Interest will accrue on the Repriced Term Loans from and after the Eleventh Amendment
Effective Date as provided in the Amended Credit Agreement for Initial Term Loans. The initial Interest Period applicable to the
Repriced Term Loans that are Term SOFR Loans shall be the period identified by the Borrower in the borrowing notice relating to
the Repriced Term Loans referenced in subsection 2(d) above, which period may at the Borrower’s election be shorter than
one month.
Section 3.
Amendments to the Existing Credit Agreement. Effective as of the Eleventh Amendment Effective Date, the Existing Credit
Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following examples: stricken
text or stricken text) and to insert the underlined text (indicated
textually in the same manner as the following examples: single-underlined text or double-underlined
text) as set forth in the pages attached as Exhibit B hereto.
Section 4.
Reaffirmation of the Guarantee and Collateral Agreement. The Guarantee and Collateral Agreement, including the guaranty
of the Obligations, the grants of Liens on the Collateral to secure the Obligations, and the covenants and agreements contained
therein, is hereby acknowledged and reaffirmed and shall continue in full force and effect. Notwithstanding the terms of this Amendment
and the effectiveness of the Amended Credit Agreement, the Guarantee and Collateral Agreement and all of the Collateral described
therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case,
as amended by this Amendment.
Section 5.
Representations and Warranties. In order to induce the Lenders party hereto to enter into this Amendment and to make Repriced
Term Loans, the Borrower and (as to subsections 5(a) and 5(b) below) each other Loan Party represents and warrants to the Lenders
party hereto that as of the Eleventh Amendment Effective Date:
(a)
the execution, delivery and performance by such Loan Party of this Amendment are within such Loan Party’s corporate or other
organizational powers, have been duly authorized by all necessary corporate or other organizational action of such Loan Party,
and will not (i) violate any Requirement of Law or Contractual Obligation of such Loan Party in any respect that would reasonably
be expected to have a Material Adverse Effect or (ii) result in, or require, the creation or imposition of any Lien (other
than Permitted Liens) on any of such Loan Party’s properties or revenues pursuant to any such Requirement of Law or Contractual
Obligation;
(b)
this Amendment constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance
with its terms, except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law); and
(c)
after giving effect to this Amendment, all representations and warranties of the Borrower contained in the Existing Credit Agreement
are true and correct in all material respects on and as of the Eleventh Amendment Effective Date, except to the extent that any
such representations and warranties expressly relate to a given date, in which case they were true and correct in all material
respects as of such date.
Section 6.
Conditions to Effectiveness. The agreements and amendments set forth in Sections 2 and 3 of this Amendment shall become
effective on the date (the “Eleventh Amendment Effective Date”) that each of the following conditions shall
have been satisfied:
(a)
Counterparts. The Administrative Agent shall have received (i) a counterpart of this Amendment executed by each of the Loan
Parties, (ii) a counterpart of this Amendment executed by the New Term Loan Lender and (iii) a duly executed Consent from each
Cashless Term Lender;
(b)
Corporate Certificates and Authorizations. The Administrative Agent shall have received customary secretary’s certificates
related to organizational documents, resolutions and officer incumbency, as well as good standing certificates (or similar document
to the extent relevant in the applicable jurisdiction of organization), with respect to each Loan Party;
(c)
Legal Opinions. The Administrative Agent shall have received a written opinion of Cravath, Swaine & Moore LLP, special
counsel to the Loan Parties, addressed to the Administrative Agent, Collateral Agent and the Lenders party hereto, dated the Eleventh
Amendment Effective Date, in form and substance reasonably satisfactory to the Administrative Agent;
(d)
PATRIOT Act and Anti-Money Laundering. The Administrative Agent shall have received, at least three days prior to the Eleventh
Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and 31 C.F.R.
§1010.230, as has been reasonably requested in writing at least 10 days prior to the Eleventh Amendment Effective Date by
the Administrative Agent;
(e)
Borrowing Notice. The Administrative Agent shall have received a customary borrowing notice in respect of the Repriced Term
Loans as required by Section 2(d) of this Amendment;
(f)
Prepayment. Substantially concurrently with the making of the Repriced Term Loans by the New Term Loan Lender and the Cashless
Term Lenders on the Eleventh Amendment Effective Date as provided for herein, the Borrower shall pay all accrued but unpaid interest
on the Existing Term Loans as of the Eleventh Amendment Effective Date; and
(g)
Solvency Certificate. The Administrative Agent shall have received a solvency certificate executed by a senior financial
officer of the Borrower in substantially the form of Exhibit P to the Credit Agreement.
The Administrative Agent shall give prompt
notice in writing to the Borrower of the occurrence of the Eleventh Amendment Effective Date. The making of the Repriced Term Loans
by the New Term Loan Lender and Cashless Term Lenders shall conclusively be deemed to constitute an acknowledgement by the Administrative
Agent, the New Term Loan Lender and Cashless Term Lenders, and an agreement of the parties hereto, that each of the conditions
precedent set forth in Section 6 hereof shall have been satisfied in accordance with its respective terms.
Section 7.
Expenses. The Borrower shall pay all reasonable out-of-pocket expenses of the Administrative Agent incurred in connection
with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder,
if any (including the reasonable fees, disbursements and other charges of Cahill Gordon & Reindel LLP,
counsel for the Administrative Agent).
Section 8.
Cashless Rollover of Existing Term Loans. Each Cashless Term Lender agrees that, on the Eleventh Amendment Effective Date,
all (or such lesser amount corresponding to the amount of Repriced Term Loans as the Administrative Agent may allocate to such
Lender) of its Existing Term Loans shall be exchanged (pursuant to subsection 3.4(h) of the Existing Credit Agreement) for Repriced
Term Loans under the Amended Credit Agreement, and such Existing Term Loans so exchanged shall be deemed repaid in full on the
Eleventh Amendment Effective Date, including with respect to all accrued and unpaid interest, fees, expenses and other compensation
owed to such Cashless Term Lender and due and payable by the Borrower pursuant to this Amendment and the Existing Credit Agreement.
Each Cashless Term Lender acknowledges and agrees that the Administrative Agent may, in its sole discretion, elect not to allocate
Repriced Term Loans to such Lender in an amount equal to 100% of the principal amount of its Existing Term Loans, in which case
the difference between the principal amount of such Lender’s Existing Term Loans as of immediately prior to the Eleventh
Amendment Effective Date and the principal amount of Repriced Term Loans allocated to such Lender by the Administrative Agent,
if any, will be repaid on, and subject to the occurrence of, the Eleventh Amendment Effective Date. Each Cashless Term Lender waives
any right to receive any payments under subsection 3.12 of the Amended Credit Agreement as a result of the Repricing Transactions.
Section 9.
Electronic Signatures; Counterparts. This Amendment may be in the form of an Electronic Record and may be executed using
Electronic Signatures (including, without limitation, facsimile and .pdf) and shall be considered an original, and shall have the
same legal effect, validity and enforceability as a paper record. This Amendment may be executed in as many counterparts as necessary
or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Amendment. For
the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the parties
hereto of a manually signed paper communication which has been converted into electronic form (such as scanned into PDF format),
or an electronically signed communication converted into another format, for transmission, delivery and/or retention. For purposes
hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to
them, respectively, by 15 USC §7006, as it may be amended from time to time.
Section 10.
Governing Law; Jurisdiction Etc.. The provisions of Sections 10.12, 10.13 and 10.15 of the Credit Agreement shall apply
to this Amendment, mutatis mutandis.
Section 11.
Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 12.
Effect of Amendment.
(a)
On and after the Eleventh Amendment Effective Date, the rights and obligations of the parties to the Existing Credit Agreement
shall be governed by the Amended Credit Agreement, it being understood that those rights and obligations that are specified in
the Existing Credit Agreement as surviving a termination of that agreement shall survive in accordance with their respective terms
and without prejudice and remain in full force and effect.
(b)
Each Loan Party reaffirms its obligations under the Loan Documents to which it is party and the validity, enforceability and perfection
of the Liens granted by it pursuant to the Security Documents. Each of the Loan Parties hereby consents to this Amendment and confirms
that all obligations of such Loan Party under the Loan Documents to which such Loan Party is a party shall continue to apply to
the Amended Credit Agreement. The parties hereto acknowledge and agree that the amendment of the Amended Credit Agreement pursuant
to this Amendment and all other Loan Documents amended and/or executed and delivered in connection herewith shall not constitute
a novation of the Amended Credit Agreement and the other Loan Documents as in effect prior to the Eleventh Amendment Effective
Date.
(c)
This Amendment shall constitute a Loan Document and a Specified Refinancing Amendment for purposes of the Amended Credit Agreement.
(d)
This Amendment shall constitute the notice required by Section 3.4(a) with respect to the prepayment in full of all outstanding
Incremental B-2021 Term Loans immediately prior to the Eleventh Amendment Effective Date.
[Remainder of Page Intentionally Left
Blank]
IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.
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US FOODS, INC. |
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By: |
/s/ Dirk J. Locascio |
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Name: Dirk J. Locascio
Title: Chief Financial Officer |
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E & H Distributing,
LLC |
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By: |
/s/ Dirk J. Locascio |
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Name: Dirk J. Locascio
Title: Chief Financial Officer |
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Great North
Imports, LLC |
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By: |
/s/ Dirk J. Locascio |
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Name: Dirk J. Locascio
Title: Chief Financial Officer |
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Trans-Porte,
Inc. |
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By: |
/s/ Dirk J. Locascio |
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Name: Dirk J. Locascio
Title: Chief Financial Officer |
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US Foods Culinary
Equipment & Supplies, LLC |
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By: |
/s/ Dirk J. Locascio |
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Name: Dirk J. Locascio
Title: Chief Financial Officer |
[Signature Page
to Eleventh Amendment to USF Term Loan Credit Agreement]
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fRESH uNLIMITED,
INC. |
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By: |
/s/ Dirk J. Locascio |
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Name: Dirk J. Locascio
Title: Chief Financial Officer |
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BAY-N-GULF, INC. |
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By: |
/s/ Dirk J. Locascio |
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Name: Dirk J. Locascio
Title: Chief Financial Officer |
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SMART STORES HOLDING CORP. |
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By: |
/s/ Dirk J. Locascio |
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Name: Dirk J. Locascio
Title: Chief Financial Officer |
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SMART STORES ACQUISITION LLC |
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By: |
/s/ Dirk J. Locascio |
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Name: Dirk J. Locascio
Title: Chief Financial Officer |
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SMART STORES OPERATIONS LLC |
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By: |
/s/ Dirk J. Locascio |
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Name: Dirk J. Locascio
Title: Chief Financial Officer |
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GREENWOOD STORES HOLDINGS LLC |
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By: |
/s/ Dirk J. Locascio |
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Name: Dirk J. Locascio
Title: Chief Financial Officer |
[Signature Page
to Eleventh Amendment to USF Term Loan Credit Agreement]
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GREENWOOD STORES ACQUISITION LLC |
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By: |
/s/ Dirk J. Locascio |
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Name: Dirk J. Locascio
Title: Chief Financial Officer |
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SMART FOODSERVICE FUNDING LLC |
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By: |
/s/ Dirk J. Locascio |
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Name: Dirk J. Locascio
Title: Chief Financial Officer |
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SMART FOODSERVICE STORES LLC |
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By: |
/s/ Dirk J. Locascio |
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Name: Dirk J. Locascio
Title: Chief Financial Officer |
[Signature Page
to Eleventh Amendment to USF Term Loan Credit Agreement]
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CITICORP NORTH AMERICA, INC., as Administrative Agent
and Collateral Agent |
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By: |
/s/ Blake Gronich |
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Name: Blake Gronich
Title: Vice President |
[Signature Page to Eleventh Amendment to USF Term Loan Credit
Agreement]
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CITIBANK, N.A., as New Term Loan Lender |
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By: |
/s/ Blake Gronich |
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Name: Blake Gronich
Title: Vice President |
[Signature Page
to Eleventh Amendment to USF Term Loan Credit Agreement]
Schedule I
New Term Loan Lender |
Repriced Term Loans |
Citibank, N.A. |
$61,509,155.95 |
Exhibit A
Continuing Lender Election
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Continuing Lender Election Form
(this “Continuing Lender Election”)
Reference is made to the Eleventh
Amendment (“Amendment”) to the Amended and Restated Term Loan Credit Agreement dated as of June 27, 2016 (as
amended, restated, amended and restated, supplemented, extended, refinanced or otherwise modified prior to the date of the Amendment,
the “Credit Agreement”), by and among US Foods, Inc., as the Borrower, the Lenders party thereto from time
to time and CitiCorp North America, Inc., as Administrative Agent. Capitalized terms used in this Consent but not defined in this
Consent have the meanings assigned to such terms in the Credit Agreement (as amended by the Amendment) or the Amendment, as applicable. |
Existing Lenders of Incremental B-2021 Term Loans. The undersigned Lender hereby irrevocably and unconditionally elects as follows: |
Cashless Settlement Option
☐ to
convert 100% of the outstanding principal amount of the Incremental B-2021 Term Loans held by such Lender (or such lesser amount
allocated to such Lender by the Administrative Agent) into a Repriced Term Loan in a like principal amount. |
Post-Closing Settlement Option
☐ to
have 100% of the outstanding principal amount of the Incremental B-2021 Term Loans held by such Lender prepaid on the Eleventh
Amendment Effective Date and purchase by assignment the principal amount of Repriced Term Loans committed to separately by the
undersigned (or such lesser amount allocated to such Lender by the Administrative Agent). |
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IN WITNESS WHEREOF, the undersigned has caused this Continuing Lender Election to be executed and delivered by a duly authorized officer as of the ______ of August, 2023. |
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________________________________________,
as a Lender (type name of the legal entity) |
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By: |
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Name:
Title: |
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If a second signature is necessary: |
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By: |
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Name:
Title: |
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Name of Fund Manager (if any):__________________ |
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Exhibit B
Amended Credit Agreement
(See attached)
Exhibit AB
AMENDED AND RESTATED
TERM LOAN CREDIT AGREEMENT
among
US FOODS, INC.,
as the Borrower
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO and
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and Collateral Agent
Dated as of June 27, 2016
CITIGROUP
GLOBAL MARKETS INCCITIBANK, N.A.,
DEUTSCHE BANK SECURITIES INC.,
BMO CAPITAL MARKETS CORP.,
GOLDMAN SACHS LENDING PARTNERS LLC,
ING CAPITAL LLC,
JPMORGAN CHASE BANK, N.A.,
KKR CAPITAL MARKETS LLC,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
MORGAN STANLEY SENIOR FUNDING, INC.,
NATIXIS, NEW YORK BRANCH,
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH and
WELLS FARGO SECURITIES, LLC,
as Joint Lead Arrangers and Joint Bookrunning Managers
TABLE OF CONTENTS
Page
| 1.2 | Other Definitional Provisions |
4949 |
SECTION 2 | AMOUNT AND TERMS OF COMMITMENTS. |
51 |
| 2.3 | Procedure for Initial Term Loan Borrowing |
5353 |
| 2.5 | Incremental Facility |
53 |
| 2.6 | Extension Amendments |
5656 |
| 2.7 | Permitted Debt Exchanges |
58 |
| 2.8 | Specified Refinancing Facilities |
6059 |
SECTION 3 | GENERAL PROVISIONS. |
6161 |
| 3.1 | Interest Rates and Payment Dates |
6161 |
| 3.2 | Conversion and Continuation Options |
61 |
| 3.3 | Minimum Amounts of Sets |
6262 |
| 3.4 | Optional and Mandatory Prepayments |
6262 |
| 3.5 | Administrative Agent’s Fees |
7170 |
| 3.6 | Computation of Interest and Fees |
7170 |
| 3.7 | Inability to Determine Interest Rate |
7170 |
| 3.8 | Pro Rata Treatment and Payments |
7271 |
| 3.10 | Requirements of Law |
7372 |
| 3.13 | Certain Rules Relating to the Payment of Additional Amounts |
7676 |
SECTION 4 | REPRESENTATIONS AND WARRANTIES |
7877 |
| 4.1 | Financial Condition |
7877 |
| 4.3 | Corporate Existence; Compliance with Law |
7877 |
| 4.4 | Corporate Power; Authorization; Enforceable Obligations |
7878 |
| 4.6 | No Material Litigation |
7978 |
| 4.7 | Ownership of Property; Liens |
7978 |
| 4.8 | Intellectual Property |
7978 |
| 4.10 | Federal Regulations |
8079 |
| 4.13 | Investment Company Act |
8180 |
| 4.15 | Purpose of Term Loans |
8180 |
| 4.16 | Environmental Matters |
8180 |
| 4.17 | No Material Misstatements |
8281 |
Page
SECTION 5 | [RESERVED]. |
8281 |
SECTION 6 | AFFIRMATIVE COVENANTS |
8281 |
| 6.1 | Financial Statements |
8281 |
| 6.2 | Certificates; Other Information |
8382 |
| 6.4 | Maintenance of Existence |
8483 |
| 6.5 | Maintenance of Property; Insurance |
8483 |
| 6.6 | Inspection of Property; Books and Records; Discussions |
8584 |
| 6.8 | Environmental Laws |
8685 |
| 6.9 | Addition of Subsidiaries |
8685 |
SECTION 7 | NEGATIVE COVENANTS |
8786 |
| 7.1 | Limitation on Indebtedness |
8786 |
| 7.2 | Limitation on Liens |
9190 |
| 7.3 | Limitation on Fundamental Changes |
9593 |
| 7.4 | Limitation on Asset Dispositions; Proceeds from Asset Dispositions and Recovery Events |
9694 |
| 7.5 | Limitation on Dividends and Other Restricted Payments |
9896 |
| 7.6 | Limitation on Transactions with Affiliates |
102100 |
| 7.8 | Change of Control; Limitation on Modifications of Debt Instruments |
103101 |
SECTION 8 | EVENTS OF DEFAULT |
103101 |
SECTION 9 | THE AGENTS AND THE OTHER REPRESENTATIVES. |
106104 |
| 9.2 | Delegation of Duties |
106104 |
| 9.3 | Exculpatory Provisions |
106104 |
| 9.4 | Reliance by the Agents |
107105 |
| 9.5 | Notice of Default |
107105 |
| 9.6 | Acknowledgements and Representations by Lenders |
107105 |
| 9.7 | Indemnification |
108106 |
| 9.8 | The Agents and Other Representatives in Their Individual Capacity |
108106 |
| 9.9 | Collateral Matters |
108106 |
| 9.10 | Successor Agent |
110108 |
| 9.11 | Other Representatives |
110108 |
| 9.12 | Withholding Tax |
110108 |
| 9.13 | Approved Electronic Communications |
110108 |
SECTION 10 | MISCELLANEOUS. |
111108 |
| 10.1 | Amendments and Waivers |
111108 |
| 10.3 | No Waiver; Cumulative Remedies |
115113 |
| 10.4 | Survival of Representations and Warranties |
115113 |
| 10.5 | Payment of Expenses and Taxes |
115113 |
| 10.6 | Successors and Assigns; Participations and Assignments |
116114 |
| 10.7 | Adjustments; Set-off; Calculations; Computations |
123120 |
Page
| 10.12 | GOVERNING LAW |
124122 |
| 10.13 | Submission to Jurisdiction; Waivers |
124122 |
| 10.14 | Acknowledgements |
125123 |
| 10.15 | WAIVER OF JURY TRIAL |
125123 |
| 10.16 | Confidentiality |
126123 |
| 10.17 | Incremental Indebtedness; Additional Indebtedness |
126124 |
| 10.18 | USA Patriot Act Notice |
127124 |
| 10.19 | Special Provisions Regarding Pledges of Capital Stock in, and Promissory Notes Owed by, Persons Not Organized in the United States |
127124 |
| 10.20 | Electronic Execution of Assignments and Certain Other Documents |
127124 |
| 10.21 | Miscellaneous |
127124 |
| 10.22 | Effect of Amendment and Restatement on Original Credit Agreement |
127125 |
| 10.23 | Acknowledgement and Consent to Bail-In of EEA Financial Institutions |
127125 |
| 10.24 | Acknowledgment Regarding Any Supported QFCs |
128125 |
SCHEDULES
| A | Term Loan Commitments and Addresses |
| 4.16 | Environmental Matters |
| 6.2 | Document Posting Website |
EXHIBITS
| D | Form of U.S. Tax Compliance Certificate |
| E | Form of Assignment and Acceptance |
| F | Form of Affiliated Lender Assignment and Acceptance |
| G | Form of Increase Supplement |
| H | Form of Lender Joinder Agreement |
| I | Form of Specified Discount Prepayment Notice |
| J | Form of Specified Discount Prepayment Response |
| K | Form of Discount Range Prepayment Notice |
| L | Form of Discount Range Prepayment Offer |
| M | Form of Solicited Discounted Prepayment Notice |
| N | Form of Solicited Discounted Prepayment Offer |
| O | Form of Acceptance and Prepayment Notice |
| P | Form of Solvency Certificate |
AMENDED AND RESTATED
TERM LOAN CREDIT AGREEMENT, dated as of June 27, 2016, among US FOODS, INC., a Delaware corporation (as further defined in subsection
1.1, the “Borrower”), the several banks and other financial institutions from time to time party to this Agreement
(as further defined in subsection 1.1, the “Lenders”) and CITICORP NORTH AMERICA, INC., as administrative agent
and collateral agent for the Lenders hereunder (in such capacities, respectively, and as further defined in subsection 1.1., the
“Administrative Agent” and the “Collateral Agent”).
The parties hereto
hereby agree as follows:
W I T N E S S E T H:
WHEREAS, the Borrower
is party to that certain Term Loan Credit Agreement, dated as of May 11. 2011, as amended by Amendment No. 1, dated as of June
7, 2013, and as further amended, supplemented, waived or otherwise modified prior to the effectiveness of the Second Amendment
(as defined below) (the “Original Term Loan Credit Agreement”);
WHEREAS, the Administrative
Agent and the Lenders have agreed to amend and restate the Original Term Loan Credit Agreement in its entirety to read as set forth
in this Agreement, and it has been agreed by such parties that the Loans outstanding as of the Restatement Effective Date and other
“Obligations” under and as defined in the Original Term Loan Credit Agreement shall be governed by and deemed to be
outstanding under this Credit Agreement with the intent that the terms of the Original Term Loan Credit Agreement shall hereafter
have no further effect upon the parties thereto, and all references to the “Credit Agreement” in any Loan Document
or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions
hereof; and
WHEREAS, the Borrower
has requested or may in the future request that the Lenders make the Loans provided for herein, and the Borrower wishes to issue
such Loans to the Lenders;
NOW, THEREFORE, in
consideration of the premises and the mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1
DEFINITIONS.
1.1
Defined Terms. As used in this Agreement, the following terms shall have the following meanings:
“2011 Senior
Notes”: the 8.50% Senior Notes due 2019, of the Borrower, as the same may be amended, supplemented, waived or otherwise
modified from time to time.
“ABL Administrative
Agent”: Citicorp in its capacity as administrative agent under the ABL Credit Agreement, or any successor administrative
agent under the ABL Credit Agreement.
“ABL Collateral
Agent”: Citicorp, in its capacity as collateral agent under the ABL Credit Agreement, or any successor collateral agent
under the ABL Credit Agreement.
“ABL Credit
Agreement”: that ABL Credit Agreement, dated as of July 3, 2007, among the Borrower, certain Subsidiaries of the Borrower
party thereto, the lenders and other financial institutions party thereto, and Citicorp, as issuing lender and the ABL Administrative
Agent and ABL Collateral Agent for the ABL Secured Parties, as such agreement has been amended by Amendment No. 1, dated as of
May 11, 2011, Amendment No. 2, dated as of December 15, 2011, Amendment No. 3, dated as of August 15, 2012, Amendment No. 4, dated
as of June 19, 2015 and Amendment No. 5, dated as of October 20, 2015, and as such agreement may be further amended, supplemented,
waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended
from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and
lenders or otherwise, and whether provided under the original ABL Credit Agreement or other credit agreements or otherwise) except
to the extent such agreement or instrument expressly provides that it is not intended to be and is not an ABL Credit Agreement
hereunder. Any reference to the ABL Credit Agreement hereunder shall be deemed a reference to any ABL Credit Agreement then in
existence.
“ABL Facility”:
the collective reference to the ABL Credit Agreement, any ABL Loan Documents, any notes and letters of credit issued pursuant thereto
and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and
other guarantees, pledge agreements, security agreements and collateral documents, and other instruments and documents, executed
and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived
or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended
from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise,
and whether provided under the original ABL Credit Agreement or one or more other credit agreements, indentures or financing agreements
or otherwise) except to the extent such agreement, instrument or document expressly provides that it is not intended to be and
is not an ABL Facility hereunder. Without limiting the generality of the foregoing, the term “ABL Facility” shall include
any agreement (i) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding
Subsidiaries of the Borrower as additional borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness
Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
“ABL Loan
Documents”: the Loan Documents as defined in the ABL Credit Agreement, as the same may be amended, supplemented, waived,
otherwise modified, extended, renewed, refinanced or replaced from time to time.
“ABL Secured
Parties”: the ABL Administrative Agent, the ABL Collateral Agent and each Person that is a lender under the ABL Credit
Agreement.
“ABR”:
for any day, a rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the greater of (a) the Prime
Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c)
Adjusted Term SOFR (with Term SOFR being determined in accordance with clause (b) of the definition thereof) plus 1.00%
(provided that this clause (c) shall not be applicable during any period in which Adjusted Term SOFR is unavailable or unascertainable).
“Prime Rate” shall mean the rate of interest per annum publicly announced from time to time by Citibank, N.A.
(or another bank of recognized standing reasonably selected by the Administrative Agent and reasonably satisfactory to the Borrower)
as its prime rate in effect at its principal office in New York City (the Prime Rate not being intended to be the lowest rate of
interest charged by Citibank, N.A. or such other bank in connection with extensions of credit to debtors). “Federal Funds
Effective Rate” shall mean, for any day, the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations
for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected
by it. Any change in the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
“ABR Loans”:
Loans the rate of interest applicable to which is based upon the ABR.
“ABR Term
SOFR Determination Day”: as defined in clause (b) of the definition of “Term SOFR”.
“ABS Documents”:
(i) the Credit and Security Agreement, dated as of August 27, 2012, among RS Funding, the Borrower, Wells Fargo Bank, National
Association, as administrative agent and letter of credit issuer, the other Loan Parties from time to time party thereto, as sub-servicers,
and the conduit lenders, committed lenders and managing agents from time to time party thereto, (ii) the Second Amended
and Restated Receivables Sale Agreement, dated as of August 27, 2012, by and among RS Funding, the Borrower, E&H Distributing,
LLC and the other sellers from time to time party thereto, (iii) the Amended and Restated Performance Undertaking, dated
as of August 27, 2012, executed by the Borrower in favor of Wells Fargo Bank, National Association, as administrative agent, and
(iv) the Amended and Restated Intercreditor Agreement, dated as of August 27, 2012, among RS Funding, the Borrower, Wells
Fargo Bank, National Association, as administrative agent, and the ABL Collateral Agent, and acknowledged by certain of the Loan
Parties; in each case under the preceding clauses (i) through (iv) as the same may be amended, supplemented, waived or otherwise
modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to
time (whether in whole or in part, whether with the original agents, trustees, purchasers or other parties thereto or other agents,
trustees, purchasers or parties or otherwise, and whether provided under the original agreements, instruments and documents described
in the foregoing clauses (i) through (iv) or other agreements, instruments, documents or otherwise) except to the extent such agreement,
instrument or document expressly provides that it is not intended to be and is not an ABS Document hereunder.
“ABS Facility”:
the collective reference to any ABS Document, and any instruments and documents executed and delivered pursuant to or in connection
with any ABS Document, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or
refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in
part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the ABS
Documents or one or more other agreements or otherwise) except to the extent such agreement, instrument or document expressly provides
that it is not intended to be and is not an ABS Facility hereunder. Without limiting the generality of the foregoing, the term
“ABS Facility” shall include any agreement (i) changing the maturity of any Indebtedness Incurred thereunder
or contemplated thereby, (ii) adding Subsidiaries of the Borrower as additional obligors thereunder, (iii) increasing
the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms
and conditions thereof.
“Acceleration”:
as defined in subsection 8(e).
“Acceptable
Discount”: as defined in subsection 3.4(i).
“Acceptable
Prepayment Amount”: as defined in subsection 3.4(i).
“Acceptance
and Prepayment Notice”: an irrevocable written notice from the Borrower accepting a Solicited Discounted Prepayment Offer
at the Acceptable Discount specified therein pursuant to subsection 3.4(i) substantially in the form of Exhibit O.
“Acceptance
Date”: as defined in subsection 3.4(i).
“Accounts”:
as defined in the UCC; and, with respect to any Person, all such Accounts of such Person, whether now existing or existing in the
future, including (a) all accounts receivable of such Person (whether or not specifically listed on schedules furnished
to the Administrative Agent), including all accounts created by or arising from all of such Person’s sales of goods or rendition
of services made under any of its trade names, or through any of its divisions, (b) all unpaid rights of such Person (including
rescission, replevin, reclamation and stopping in transit) relating to the foregoing or arising therefrom, (c) all rights
to any goods represented by any of the foregoing, including returned or repossessed goods, (d) all reserves and credit balances
held by such Person with respect to any such accounts receivable of any Obligors, (e) all letters of credit, guarantees
or collateral for any of the foregoing and (f) all insurance policies or rights relating to any of the foregoing.
“Acquired
Indebtedness”: Indebtedness of a Person (i) existing at the time such Person becomes a Subsidiary or (ii)
assumed in connection with the acquisition of assets from such Person, in each case other than Indebtedness Incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be
Incurred on the date of the related acquisition of assets from any Person or the date the acquired Person becomes a Subsidiary.
“Additional
Assets”: (i) any property or assets that replace the property or assets that are the subject of an Asset Disposition;
(ii) any property or assets (other than Indebtedness and Capital Stock) used or to be used by the Borrower or a Restricted
Subsidiary or otherwise useful in a Related Business, and any capital expenditures in respect of any property or assets already
so used; (iii) the Capital Stock of a Person that is engaged in a Related Business and becomes a Restricted Subsidiary as
a result of the acquisition of such Capital Stock by the Borrower or another Restricted Subsidiary; or (iv) Capital Stock
of any Person that at such time is a Restricted Subsidiary acquired from a third party.
“Additional
Incremental Lender”: as defined in subsection 2.5(b).
“Additional
Indebtedness”: as defined in the Intercreditor Agreement or, if no such Intercreditor Agreement is in effect, any Indebtedness
that is or may from time to time be incurred in compliance with subsection 7.1 and that is secured by a Lien on Collateral and
is permitted to be so secured by subsection 7.2, and is designated as “Additional Indebtedness” by the Borrower in
writing to the Administrative Agent.
“Additional Specified
Refinancing Lender”: as defined in subsection 2.8(b).
“Adjusted
Term SOFR”: 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 0.00%, then
Adjusted Term SOFR shall be deemed to be 0.00%.
“Administrative
Agent”: as defined in the Preamble and shall include any successor to the Administrative Agent appointed pursuant to
subsection 9.10.
“Affected
Loans”: as defined in subsection 3.9.
“Affected
Rate”: as defined in subsection 3.7.
“Affiliate”:
of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition, “control” when used with respect to
any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“Affiliate
Transaction”: as defined in subsection 7.6.
“Affiliated
Debt Fund”: any Affiliated Lender that is primarily engaged in, or advises funds or other investment vehicles that are
engaged in, making, purchasing, holding or otherwise investing in commercial loans, notes, bonds and similar extensions of credit
or securities in the ordinary course, so long as (i) any such Affiliated Lender is managed as to day-to-day matters (but
excluding, for the avoidance of doubt, as to strategic direction and similar matters) independently from Sponsor and any Affiliate
of Sponsor that is not primarily engaged in the investing activities described above, (ii) any such Affiliated Lender has
in place customary information screens between it and Sponsor and any Affiliate of Sponsor that is not primarily engaged in the
investing activities described above, and (iii) neither Holding nor any of its Subsidiaries directs or causes the direction
of the investment policies of such entity.
“Affiliated
Lender”: any Lender that is a Permitted Affiliated Assignee.
“Affiliated
Lender Assignment and Acceptance”: an Affiliated Lender Assignment and Acceptance, substantially in the form of Exhibit
F.
“Agents”:
the collective reference to the Administrative Agent and the Collateral Agent.
“Agreement”:
this Term Loan Credit Agreement, as amended, supplemented, waived or otherwise modified from time to time.
“Applicable
Discount”: as defined in subsection 3.4(i).
“Applicable
Margin”: (i) prior to the TenthEleventh
Amendment Effective Date, the meaning ascribed to such term immediately prior to the TenthEleventh
Amendment Effective Date and (ii) from and after the TenthEleventh
Amendment Effective Date, (a) (I) with respect to Incremental B-2019 Term Loans that are ABR Loans, 1.00% per annum and (II) with
respect to Incremental B-2019 Term Loans that are Term SOFR Loans, 2.00% per annum; and (b) (I) with respect to Incremental B-2021
Term Loans that are ABR Loans, 1.751.50%
per annum and (II) with respect to Incremental B-2021 Term Loans that are Term SOFR Loans, 2.752.50%
per annum.
“Approved
Electronic Communications”: each notice, demand, communication, information, document and other material that any Loan
Party is obligated to, or otherwise chooses to, provide to the Administrative Agent pursuant to any Loan Document or the transactions
contemplated therein, including (a) any supplement, joinder or amendment to the Security Documents and any other written
communication delivered or required to be delivered in respect of any Loan Document or the transactions contemplated therein and
(b) any financial statement, financial and other report, notice, request, certificate and other information material; provided
that “Approved Electronic Communications” shall exclude (i) any notice pursuant to subsection 3.4 and (ii)
all notices of any Default.
“Approved
Electronic Platform”: as defined in subsection 9.13.
“Approved
Fund”: as defined in subsection 10.6(b).
“Asset Disposition”:
any sale, lease, transfer or other disposition of shares of Capital Stock of a Restricted Subsidiary (other than directors’
qualifying shares, or (in the case of a Foreign Subsidiary) to the extent required by applicable law), property or other assets
(each referred to for purposes of this definition as a “disposition”) by the Borrower or any of its Restricted Subsidiaries
(including any disposition by means of a merger, consolidation or similar transaction), other than (i) a disposition
to the Borrower or a Restricted Subsidiary, (ii) a disposition in the ordinary course of business, (iii) a disposition
of Cash Equivalents, Investment Grade Securities or Temporary Cash Investments, (iv) the sale or discount (with or without
recourse, and on customary or commercially reasonable terms, as determined by the Borrower in good faith) of accounts receivable
or notes receivable arising in the ordinary course of business, or the conversion or exchange of accounts receivable for notes
receivable, (v) any Restricted Payment Transaction, (vi) a disposition that is governed by subsection 7.3, (vii)
any Financing Disposition, (viii) any “fee in lieu” or other disposition of assets to any Governmental Authority
that continue in use by the Borrower or any Restricted Subsidiary, so long as the Borrower or any Restricted Subsidiary may obtain
title to such assets upon reasonable notice by paying a nominal fee, (ix) any exchange of property pursuant to or intended
to qualify under Section 1031 (or any successor section) of the Code, or any exchange of equipment to be leased, rented or otherwise
used in a Related Business, (x) any financing transaction with respect to property built or acquired by the Borrower or
any Restricted Subsidiary after the Restatement Effective Date, including any sale/leaseback transaction or asset securitization,
(xi) any disposition arising from foreclosure, condemnation, eminent domain or similar action with respect to any property
or other assets, or exercise of termination rights under any lease, license, concession or other agreement, or necessary or advisable
(as determined by the Borrower in good faith) in order to consummate any acquisition of any Person, business or assets, or pursuant
to buy/sell arrangements under any joint venture or similar agreement or arrangement, or of non-core assets acquired in connection
with any acquisition of any Person, business or assets or any Investment, (xii) any disposition of Capital Stock, Indebtedness
or other securities of an Unrestricted Subsidiary, (xiii) a disposition of Capital Stock of a Restricted Subsidiary pursuant
to an agreement or other obligation with or to a Person (other than the Borrower or a Restricted Subsidiary) from whom such Restricted
Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in
connection with such acquisition), entered into in connection with such acquisition, (xiv) a disposition of not more than
5.0% of the outstanding Capital Stock of a Foreign Subsidiary that has been approved by the Board of Directors, (xv) any
disposition or series of related dispositions for aggregate consideration not to exceed $40.0 million, (xvi) any Exempt
Sale and Leaseback Transaction, (xvii) the abandonment or other disposition of patents, trademarks or other intellectual
property that are, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the
conduct of the business of the Borrower and its Subsidiaries taken as a whole, (xviii) any disposition or series of related
dispositions for Net Available Cash not exceeding $50.0 million in the aggregate, (xix) any license, sublicense or other
grant of rights in or to any trademark, copyright, patent or other intellectual property or (xx) the creation or granting of any
Lien permitted under this Agreement.
“Assignee”:
as defined in subsection 10.6(b).
“Assignment
and Acceptance”: an Assignment and Acceptance, substantially in the form of Exhibit E.
“Bail-In Action”:
the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of
an EEA Financial Institution.
“Bail-In Legislation”:
with respect to any EEA Member Country implementing Article 55 of the Bank Recovery and Resolution Directive, the implementing
law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bank Products
Agreement”: any agreement pursuant to which a bank or other financial institution agrees to provide (a) treasury
services, (b) credit card, debit card, merchant card, purchasing card, stored value card, non-card electronic payable or
similar services (including the processing of payments and other administrative services with respect thereto), (c) cash
management or related services (including controlled disbursements, automated clearinghouse transactions, return items, netting,
overdrafts, depository, lockbox, stop payment, electronic funds transfer, information reporting, wire transfer and interstate depository
network services) and (d) other banking, financial or treasury products or services as may be requested by the Borrower
or any Restricted Subsidiary (other than letters of credit and other than loans and advances except indebtedness arising from services
described in clauses (a) through (c) of this definition), including for the avoidance of doubt, bank guarantees.
“Bank Products
Obligations”: of any Person, the obligations of such Person pursuant to any Bank Products Agreement.
“Bankruptcy
Law”: Title 11, United States Code, or any similar Federal, state or foreign law for the relief of debtors.
“Bankruptcy
Proceeding”: as defined in subsection 10.6(h).
“Benefited
Lender”: as defined in subsection 10.7(a).
“Board”:
the Board of Governors of the Federal Reserve System.
“Board of
Directors”: for any Person, the board of directors or other governing body of such Person or, if such Person does not
have such a board of directors or other governing body and is owned or managed by a single entity, the board of directors or other
governing body of such entity, or, in either case, any committee thereof duly authorized to act on behalf of such board of directors
or other governing body. Unless otherwise provided, “Board of Directors” means the Board of Directors of the Borrower.
“Borrower”:
US Foods, Inc. and any successor thereto pursuant to subsection 7.3 or 10.6(a).
“Borrower
Offer of Specified Discount Prepayment”: the offer by the Borrower to make a voluntary prepayment of Term Loans at a
specified discount to par pursuant to subsection 3.4(i)(ii).
“Borrower
Solicitation of Discount Range Prepayment Offers”: the solicitation by the Borrower of offers for, and the corresponding
acceptance, if any, by a Lender of, a voluntary prepayment of Term Loans at a specified range at a discount to par pursuant to
subsection 3.4(i)(iii).
“Borrower
Solicitation of Discounted Prepayment Offers”: the solicitation by the Borrower of offers for, and the subsequent acceptance,
if any, by a Lender of, a voluntary prepayment of Term Loans at a discount to par pursuant to subsection 3.4(i)(iv).
“Borrowing”:
the borrowing of one Type of Loan of a single Tranche by the Borrower from all the Lenders having Commitments of the respective
Tranche on a given date (or resulting from a conversion or conversions on such date) having in the case of Term SOFR Loans the
same Interest Period.
“Borrowing
Base”: the sum of (1) 95.0% of the book value of Inventory of the Borrower and its Restricted Subsidiaries, (2)
85.0% of the book value of Receivables of the Borrower and its Restricted Subsidiaries, (3) 85.0% of the book value of Equipment
of the Borrower and its Restricted Subsidiaries, (4) 85.0% of the book value (or if higher appraised value) of Real Property
of the Borrower and its Restricted Subsidiaries and (5) cash, Cash Equivalents and Temporary Cash Investments held by the
Borrower and its Restricted Subsidiaries (in each case, determined as of the end of the most recently ended fiscal month of the
Borrower for which internal consolidated financial statements of the Borrower (or, any Parent whose financial statements satisfy
the Borrower’s reporting obligations under subsection 6.1(a) or 6.1(b)) are available, and, in the case of any determination
relating to any Incurrence of Indebtedness, on a pro forma basis including (x) any property or assets of a type described
above acquired since the end of such fiscal month and (y) any property or assets of a type described above being acquired
in connection therewith).
“Borrowing
Date”: any Business Day specified in a notice pursuant to this Agreement, including subsection 2.3, as a date on which
the Borrower requests the Lenders to make Loans hereunder.
“Business
Day”: a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required
by law to close in New York City.
“Capital Stock”:
of any Person means any and all shares or units of, rights to purchase, warrants or options for, or other equivalents of or interests
in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into
such equity.
“Capitalized
Lease Obligation”: an obligation that is required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP. The Stated Maturity of any Capitalized Lease Obligation shall be the date of the last
payment of rent or any other amount due under the related lease.
“Captive Insurance
Subsidiary”: any Subsidiary of the Borrower that is subject to regulation as an insurance company (or any Subsidiary
thereof).
“Cash Equivalents”:
any of the following: (a) money, (b) securities issued or fully guaranteed or insured by the United States of America,
Canada or a member state of the European Union or any agency or instrumentality of any thereof, (c) time deposits, certificates
of deposit or bankers’ acceptances of (i) any lender under any Senior Credit Facility or any affiliate thereof or
(ii) any commercial bank having capital and surplus in excess of $500.0 million (or the foreign currency equivalent thereof
as of the date of such investment) and the commercial paper of the holding company of which is rated at least A-2 or the equivalent
thereof by S&P or at least P-2 or the equivalent thereof by Moody’s (or if at such time neither is issuing ratings, a
comparable rating of another nationally recognized rating agency), (d) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution
meeting the qualifications specified in clause (c)(i) or (c)(ii) above, (e) money market instruments, commercial paper or
other short-term obligations rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof
by Moody’s (or, if at such time neither is issuing ratings, a comparable rating of another nationally recognized rating agency),
(f) investments in money market funds subject to the risk limiting conditions of Rule 2a-7 or any successor rule of the
SEC under the Investment Company Act, (g) investments similar to any of the foregoing denominated in foreign currencies
approved by the Board of Directors, and (h) solely with respect to any Captive Insurance Subsidiary, any investment that
person is permitted to make in accordance with applicable law.
“CD&R”:
Clayton, Dubilier & Rice, LLC and any successor in interest thereto, and any successor to its investment management business.
“CD&R
Investors”: collectively, (i) Clayton, Dubilier & Rice Fund VII, L.P., and any successor in interest thereto,
(ii) CD&R Parallel Fund VII, L.P., and any successor in interest thereto, (iii) CD&R Parallel Fund VII (Co-Investment),
L.P., and any successor in interest thereto and (iv) any Affiliate of any Person referred to in clauses (i) through (iii)
of this definition.
“Change in
Law”: as defined in subsection 3.11(a).
“Change of
Control”: (i) (x) the Permitted Holders shall in the aggregate be the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, as in effect on the Restatement Effective Date) of (A) so long
as the Borrower is a Subsidiary of any Parent, shares of Voting Stock having less than 35.0% of the total voting power of all outstanding
shares of such Parent (other than a Parent that is a Subsidiary of another Parent) and (B) if the Borrower is not a Subsidiary
of any Parent, shares of Voting Stock having less than 35.0% of the total voting power of all outstanding shares of the Borrower
and (y) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act, as in effect on the Restatement Effective Date), other than one or more Permitted Holders, shall be the “beneficial
owner” of (A) so long as the Borrower is a Subsidiary of any Parent, shares of Voting Stock having more than 35.0%
of the total voting power of all outstanding shares of such Parent (other than a Parent that is a Subsidiary of another Parent)
and (B) if the Borrower is not a Subsidiary of any Parent, shares of Voting Stock having more than 35.0% of the total voting
power of all outstanding shares of the Borrower; or (ii) a “Change of Control” as defined in the Senior Notes
Indenture.
“Citi”:
Citigroup Global Markets Inc., Citibank, N.A., Citicorp USA, Inc., Citicorp North America, Inc. and/or any of their respective
affiliates as Citi shall determine to be appropriate to provide the services contemplated herein.
“Citicorp”:
Citicorp North America, Inc.
“Claim”:
as defined in subsection 10.6(h).
“CMBS Documents”:
the Loan and Security Agreement (Fixed Rate), dated as of July 3, 2007, by and among USF Propco I, LLC, as borrower, and German
American Capital Corporation, Goldman Sachs Mortgage Company, JPMorgan Chase Bank, N.A., Citigroup Global Capital Markets Realty
Corp., Morgan Stanley Mortgage Capital Holdings LLC and Greenwich Capital Financial Products, Inc., as lender, as amended by that
certain Loan Affirmation, Substitution and Modification Agreement, dated as of May 15, 2014, by and among USF Propco I, LLC, as
borrower, US Foods, Inc., as guarantor, and Wells Fargo Bank, N.A., as trustee for the registered holders of Comm 2007-C9 commercial
mortgage pass-through certificates and that certain Omnibus Amendment to Loan Documents and Loan Affirmation Agreement, dated as
of February 27, 2015, by and among USF Propco I, LLC, as borrower, US Foods, Inc., as guarantor, and Wells Fargo Bank, N.A., as
trustee for the registered holders of Comm 2007-C9 commercial mortgage pass-through certificates, and as the same may be further
amended, supplemented, waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed,
repaid, increased or extended from time to time (whether in whole or in part, whether with the original agents, trustees, lenders
or other parties thereto or other agents, trustees, lenders or parties or otherwise, and whether provided under the original agreements,
instruments and documents or other agreements, instruments, documents or otherwise) except to the extent such agreement, instrument
or document expressly provides that it is not intended to be and is not a CMBS Document hereunder.
“CMBS Facility”:
the collective reference to any CMBS Document, and any instruments and documents executed and delivered pursuant to or in connection
with any CMBS Document, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time,
or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or
in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the CMBS
Documents or one or more other agreements or otherwise) except to the extent such agreement, instrument or document expressly provides
that it is not intended to be and is not a CMBS Facility hereunder. Without limiting the generality of the foregoing, the term
“CMBS Facility” shall include any agreement (i) changing the maturity of any Indebtedness Incurred thereunder
or contemplated thereby, (ii) adding Subsidiaries of the Borrower as additional obligors thereunder, (iii) increasing
the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms
and conditions thereof.
“Code”:
the Internal Revenue Code of 1986, as amended from time to time.
“Collateral”:
all assets of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document.
“Collateral
Agent”: as defined in the Preamble, and shall include any successor to the Collateral Agent appointed pursuant to subsection
9.10.
“Commitment”:
as to any Lender, such Lender’s Initial Term Loan Commitment, Incremental Commitment, or Specified Refinancing Commitment,
as the context requires.
“Commodities
Agreement”: in respect of a Person, any commodity futures contract, forward contract, option or similar agreement or
arrangement (including derivative agreements or arrangements), as to which such Person is a party or beneficiary.
“Commonly
Controlled Entity”: an entity, whether or not incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the Borrower and which is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Sections 414(m) and (o) of the Code.
“Conduit Lender”:
any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument delivered to the Administrative Agent (a copy of which
shall be provided by the Administrative Agent to the Borrower on request); provided that the designation by any Lender
of a Conduit Lender shall not relieve the designating Lender of any of its obligations under this Agreement, including its obligation
to fund a Term Loan if, for any reason, its Conduit Lender fails to fund any such Term Loan, and the designating Lender (and not
the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under
this Agreement with respect to its Conduit Lender, and provided, further, that no Conduit Lender shall
(a) be entitled to receive any greater amount pursuant to any provision of this Agreement, including subsection 3.10, 3.11,
3.12 or 10.5, than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such
Conduit Lender if such designating Lender had not designated such Conduit Lender hereunder, (b) be deemed to have any Term
Loan Commitment or (c) be designated if such designation would otherwise increase the costs of any Facility to the Borrower.
“Consolidated
Coverage Ratio”: as of any date of determination, the ratio of (i) the aggregate amount of Consolidated EBITDA
for the period of the most recent four consecutive fiscal quarters of the Borrower ending prior to the date of such determination
for which consolidated financial statements of the Borrower (or any Parent whose financial statements satisfy the Borrower’s
reporting obligations under subsection 6.1(a) or 6.1(b)) are available, to (ii) Consolidated Interest Expense for such four
fiscal quarters; provided that:
(i) if,
since the beginning of such period, the Borrower or any Restricted Subsidiary has Incurred any Indebtedness or the Borrower has
issued any Designated Preferred Stock that remains outstanding on such date of determination or if the transaction giving rise
to the need to calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness or an issuance of Designated Preferred
Stock of the Borrower, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect
on a pro forma basis to such Indebtedness or Designated Preferred Stock as if such Indebtedness or Designated Preferred Stock had
been Incurred or issued, as applicable, on the first day of such period (except that in making such computation, the amount of
Indebtedness under any revolving credit facility outstanding on the date of such calculation shall be computed based on (A)
the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility
was outstanding or (B) if such facility was created after the end of such four fiscal quarters, the average daily balance
of such Indebtedness during the period from the date of creation of such facility to the date of such calculation),
(ii) if,
since the beginning of such period, the Borrower or any Restricted Subsidiary has repaid, repurchased, redeemed, defeased or otherwise
acquired, retired or discharged any Indebtedness, or any Designated Preferred Stock of the Borrower, that is no longer outstanding
on such date of determination (each, a “Discharge”) or if the transaction giving rise to the need to calculate
the Consolidated Coverage Ratio involves a Discharge of Indebtedness (in each case other than Indebtedness Incurred under any revolving
credit facility unless such Indebtedness has been permanently repaid) or a Discharge of Designated Preferred Stock of the Borrower,
Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis
to such Discharge of Indebtedness or Designated Preferred Stock, including with the proceeds of such new Indebtedness or new Designated
Preferred Stock of the Borrower, as if such Discharge had occurred on the first day of such period,
(iii) if,
since the beginning of such period, the Borrower or any Restricted Subsidiary shall have disposed of any company, any business
or any group of assets constituting an operating unit of a business, including any such disposition occurring in connection with
a transaction causing a calculation to be made hereunder, or designated any Restricted Subsidiary as an Unrestricted Subsidiary
(any such disposition or designation, a “Sale”), the Consolidated EBITDA for such period shall be reduced by
an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such
period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period and Consolidated
Interest Expense for such period shall be reduced by an amount equal to (A) the Consolidated Interest Expense attributable
to any Indebtedness of the Borrower or any Restricted Subsidiary repaid, repurchased, redeemed, defeased or otherwise acquired,
retired or discharged with respect to the Borrower and its continuing Restricted Subsidiaries in connection with such Sale for
such period (including but not limited to through the assumption of such Indebtedness by another Person) plus (B)
if the Capital Stock of any Restricted Subsidiary is disposed of in such Sale or any Restricted Subsidiary is designated as an
Unrestricted Subsidiary, the Consolidated Interest Expense for such period attributable to the Indebtedness of such Restricted
Subsidiary to the extent the Borrower and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after
such Sale,
(iv) if,
since the beginning of such period, the Borrower or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have
made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquired any company, any business
or any group of assets constituting an operating unit of a business, including any such Investment or acquisition occurring in
connection with a transaction causing a calculation to be made hereunder or designated any Unrestricted Subsidiary as a Restricted
Subsidiary (any such Investment, acquisition or designation, a “Purchase”), Consolidated EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any related
Indebtedness) as if such Purchase occurred on the first day of such period,
(v) if,
since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into the Borrower
or any Restricted Subsidiary, and since the beginning of such period such Person shall have Discharged any Indebtedness or made
any Sale or Purchase that would have required an adjustment pursuant to clause (ii), (iii) or (iv) above if made by the Borrower
or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto as if such Discharge, Sale or Purchase occurred on the first day of such
period, and
(vi) Excluded
Junior Capital (and Consolidated Interest Expense in respect thereof) shall be excluded from the calculation of the Consolidated
Coverage Ratio;
provided that, in the event
that the Borrower shall classify Indebtedness Incurred on the date of determination as Incurred in part under subsection 7.1(a)
and in part under subsection 7.1(b), as provided in subsections 7.1(c)(ii) and 7.1(c)(iii), any such pro forma calculation of Consolidated
Interest Expense shall not give effect to any such Incurrence of Indebtedness on the date of determination pursuant to subsection
7.1(b) (other than, if the Borrower at its option has elected to disregard Indebtedness being Incurred on the date of determination
in part under subsection 7.1(a) for purposes of calculating the Consolidated Total Leverage Ratio for Incurring Indebtedness on
the date of determination in part under subsection 7.1(b)(x) or 7.1(b)(xvi), subsection 7.1(b)(x) or 7.1(b)(xvi)) or to any Discharge
of Indebtedness from the proceeds of any such Incurrence pursuant to such subsection 7.1(b) (other than subsection 7.1(b)(x) or
7.1(b)(xvi), if the Incurrence of Indebtedness under subsection 7.1(b)(x) or 7.1(b)(xvi) is being given effect in the calculation
of the Consolidated Coverage Ratio).
For purposes of this
definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings
relating thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred, Designated Preferred
Stock issued, or Indebtedness or Designated Preferred Stock repaid, repurchased, redeemed, defeased or otherwise acquired, retired
or discharged in connection therewith, the pro forma calculations in respect thereof (including in respect of anticipated cost
savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief
Financial Officer or another Responsible Officer of the Borrower. If any Indebtedness bears a floating rate of interest and is
being given pro forma effect, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the date
of determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable
to such Indebtedness). If any Indebtedness bears, at the option of the Borrower or a Restricted Subsidiary, a rate of interest
based on a prime or similar rate or other fixed or floating rate, and such Indebtedness is being given pro forma effect, the interest
expense on such Indebtedness shall be calculated by applying such optional rate as the Borrower or such Restricted Subsidiary may
designate. If any Indebtedness that is being given pro forma effect was Incurred under a revolving credit facility, the interest
expense on such Indebtedness shall be computed based upon the average daily balance of such Indebtedness during the applicable
period. Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate determined in good faith by a
responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capitalized Lease Obligation
in accordance with GAAP.
“Consolidated
EBITDA”: for any period, the Consolidated Net Income for such period, plus (x) the following to the extent
deducted in calculating such Consolidated Net Income, without duplication: (i) provision for all taxes (whether or not paid,
estimated or accrued) based on income, profits or capital (including penalties and interest, if any), (ii) Consolidated
Interest Expense, all items excluded from the definition of Consolidated Interest Expense pursuant to clause (iii) thereof (other
than Special Purpose Financing Expense), any Special Purpose Financing Fees, and to the extent not reflected in Consolidated Interest
Expense, costs of surety bonds in connection with financing activities, (iii) depreciation, (iv) amortization (including
but not limited to amortization of goodwill and intangibles and amortization and write-off of financing costs), (v) any
noncash charges or noncash losses, (vi) any expenses or charges related to any Equity Offering, Investment or Indebtedness
permitted by this Agreement (whether or not consummated or incurred, and including any offering or sale of Capital Stock of a Parent
to the extent the proceeds thereof were intended to be contributed to the equity capital of the Borrower or any of its Restricted
Subsidiaries), (vii) the amount of any loss attributable to non-controlling interests, (viii) all deferred financing
costs written off and premiums paid in connection with any early extinguishment of Hedging Obligations or other derivative instruments,
(ix) any management, monitoring, consulting and advisory fees and related expenses paid to any of CD&R, KKR or any of
their respective Affiliates, (x) interest and investment income, (xi) the amount of loss on any Financing Disposition,
and (xii) any costs or expenses pursuant to any management or employee stock option or other equity-related plan, program
or arrangement, or other benefit plan, program or arrangement, or any equity subscription or equityholder agreement, to the extent
funded with cash proceeds contributed to the capital of the Borrower or an issuance of Capital Stock of the Borrower (other than
Disqualified Stock) and excluded from the calculation set forth in subsection 7.5(a)(iii), plus (y) the amount of
net cost savings projected by the Borrower in good faith to be realized as a result of actions taken or to be taken on or prior
to the date that is 24 months after the Restatement Effective Date, or 24 months after the consummation of any operational change,
respectively (calculated on a pro forma basis as though such cost savings had been realized on the first day of such period), net
of the amount of actual benefits realized during such period from such actions (which adjustments may be incremental to pro forma
adjustments made pursuant to the proviso to the definition of “Consolidated Coverage Ratio,” “Consolidated Secured
Leverage Ratio” or “Consolidated Total Leverage Ratio”).
“Consolidated
Interest Expense”: for any period,
(i) the
total interest expense of the Borrower and its Restricted Subsidiaries to the extent deducted in calculating Consolidated Net Income,
net of any interest income of the Borrower and its Restricted Subsidiaries, including any such interest expense consisting of (a)
interest expense attributable to Capitalized Lease Obligations, (b) amortization of debt discount, (c) interest in
respect of Indebtedness of any other Person that has been Guaranteed by the Borrower or any Restricted Subsidiary, but only to
the extent that such interest is actually paid by the Borrower or any Restricted Subsidiary, (d) noncash interest expense,
(e) the interest portion of any deferred payment obligation, and (f) commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers’ acceptance financing, plus
(ii) Preferred
Stock dividends paid in cash in respect of Disqualified Stock of the Borrower held by Persons other than the Borrower or a Restricted
Subsidiary, or in respect of Designated Preferred Stock of the Borrower pursuant to subsection 7.5(b)(xi)(A), minus
(iii) to
the extent otherwise included in such interest expense referred to in clause (i) above, amortization or write-off of financing
costs, Special Purpose Financing Expense, accretion or accrual of discounted liabilities not constituting Indebtedness, expense
resulting from discounting of Indebtedness in conjunction with recapitalization or purchase accounting, and any “additional
interest” in respect of registration rights arrangements for any securities (including any Senior Notes),
in each case under clauses (i) through
(iii) above as determined on a Consolidated basis in accordance with GAAP; provided that gross interest expense shall
be determined after giving effect to any net payments made or received by the Borrower and its Restricted Subsidiaries with respect
to Interest Rate Agreements.
“Consolidated
Net Income”: for any period, the net income (loss) of the Borrower and its Restricted Subsidiaries, determined on a Consolidated
basis in accordance with GAAP and before any reduction in respect of Preferred Stock dividends; provided that there
shall not be included in such Consolidated Net Income:
(i) any
net income (loss) of any Person if such Person is not the Borrower or a Restricted Subsidiary, except that the Borrower’s
or any Restricted Subsidiary’s net income for such period shall be increased by the aggregate amount actually dividended
or distributed or that (as determined by the Borrower in good faith, which determination shall be conclusive) could have been dividended
or distributed by such Person during such period to the Borrower or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (ii)
below),
(ii) solely
for purposes of determining the amount available for Restricted Payments under subsection 7.5(a)(iii)(A), any net income (loss)
of any Restricted Subsidiary that is not a Subsidiary Guarantor if such Restricted Subsidiary is subject to restrictions, directly
or indirectly, on the payment of dividends or the making of similar distributions by such Restricted Subsidiary, directly or indirectly,
to the Borrower by operation of the terms of such Restricted Subsidiary’s charter or any agreement, instrument, judgment,
decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its stockholders (other than
(x) restrictions that have been waived or otherwise released, (y) restrictions pursuant to the Loan Documents, the
Senior Notes, the Senior Notes Indenture, the ABL Loan Documents, the ABS Documents, the CMBS Documents and any Interest Rate Agreements
relating to any of the foregoing, and (z) restrictions in effect on the Restatement Effective Date with respect to a Restricted
Subsidiary and other restrictions with respect to such Restricted Subsidiary that taken as a whole are not materially less favorable
to the Lenders than such restrictions in effect on the Restatement Effective Date as determined by the Borrower in good faith),
except that the Borrower’s equity in the net income of any such Restricted Subsidiary for such period shall be included in
such Consolidated Net Income up to the aggregate amount of any dividend or distribution that was or that (as determined by the
Borrower in good faith, which determination shall be conclusive) could have been made by such Restricted Subsidiary during such
period to the Borrower or another Restricted Subsidiary (subject, in the case of a dividend that could have been made to another
Restricted Subsidiary, to the limitation contained in this clause (ii)),
(iii) (x)
any gain or loss realized upon the sale, abandonment or other disposition of any asset of the Borrower or any Restricted Subsidiary
(including pursuant to any sale/leaseback transaction) that is not sold, abandoned or otherwise disposed of in the ordinary course
of business (as determined by the Borrower in good faith) and (y) any gain or loss realized upon the disposal, abandonment
or discontinuation of operations of the Borrower or any Restricted Subsidiary,
(iv) any
extraordinary, unusual or nonrecurring gain, loss or charge (including fees, expenses and charges (or any amortization thereof)
associated with the Transactions or any acquisition, merger or consolidation, whether or not completed), any severance, relocation,
consolidation, closing, integration, facilities opening, business optimization, transition or restructuring costs, charges or expenses,
any signing, retention or completion bonuses, and any costs associated with curtailments or modifications to pension and post-retirement
employee benefit plans,
(v) the
cumulative effect of a change in accounting principles,
(vi) all
deferred financing costs written off and premiums paid in connection with any early extinguishment of Indebtedness or Hedging Obligations
or other derivative instruments,
(vii) any
unrealized gains or losses in respect of Hedge Agreements,
(viii) any
unrealized foreign currency transaction gains or losses, including in respect of Indebtedness of any Person denominated in a currency
other than the functional currency of such Person,
(ix) any
noncash compensation charge arising from any grant of limited liability company interests, stock, stock options or other equity
based awards,
(x) to
the extent otherwise included in Consolidated Net Income, any unrealized foreign currency translation or transaction gains or losses,
including in respect of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary owing to the Borrower or
any Restricted Subsidiary,
(xi) any
noncash charge, expense or other impact attributable to application of the purchase or recapitalization method of accounting (including
the total amount of depreciation and amortization, cost of sales or other noncash expense resulting from the write-up of assets
to the extent resulting from such purchase or recapitalization accounting adjustments), noncash charges for deferred tax valuation
allowances and noncash gains, losses, income and expenses resulting from fair value accounting required by the applicable standard
under GAAP,
(xii) any
impairment charge or asset write-off, including any charge or write-off related to intangible assets, long-lived assets or investments
in debt and equity securities, and any amortization of intangibles,
(xiii) expenses
related to noncash compensation related expenses,
(xiv) any
fees and expenses (or amortization thereof), and any charges or costs, in connection with any acquisition, Investment, Asset Disposition,
issuance of Capital Stock, issuance, repayment or refinancing of Indebtedness, or amendment or modification of any agreement or
instrument relating to any Indebtedness (in each case, whether or not completed, and including any such transaction consummated
prior to the Restatement Effective Date), and
(xv) to
the extent covered by insurance and actually reimbursed (or the Borrower has determined that there exists reasonable evidence that
such amount will be reimbursed by the insurer and such amount is not denied by the applicable insurer in writing within 180 days
and is reimbursed within 365 days of the date of such evidence (with a deduction in any future calculation of Consolidated Net
Income for any amount so added back to the extent not so reimbursed within such 365-day period)), any expenses with respect to
liability or casualty events or business interruption;
provided, further,
that the exclusion of any item pursuant to the foregoing clauses (i) through (xv) shall also exclude the tax impact of any such
item, if applicable.
Notwithstanding the
foregoing, for the purpose of subsection 7.5(a)(iii)(A) only, there shall be excluded from Consolidated Net Income, without duplication,
any income consisting of dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries
to the Borrower or a Restricted Subsidiary, and any income consisting of return of capital, repayment or other proceeds from dispositions
or repayments of Investments consisting of Restricted Payments, in each case to the extent such income would be included in Consolidated
Net Income and such related dividends, repayments, transfers, return of capital or other proceeds are applied by the Borrower to
increase the amount of Restricted Payments permitted under such covenant pursuant to subsection 7.5(a)(iii)(C) or 7.5(a)(iii)(D).
In addition, for purposes
of subsection 7.5(a)(iii), Consolidated Net Income for any period ending on or prior to the Restatement Effective Date shall be
determined based upon the net income (loss) reflected in the consolidated financial statements of the Borrower for such period;
and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary,
and the Transactions shall not constitute a sale or disposition under clause (iii) above for purposes of such determination.
“Consolidated
Secured Indebtedness”: as of any date of determination, (i) an amount equal to the Consolidated Total Indebtedness
(without regard to clause (ii) of the definition thereof) and any Ratio Tested Commitment Amount that is either (x) then
secured by Liens on property or assets of the Borrower and its Restricted Subsidiaries (other than property or assets held in a
defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby) or (y) incurred (or in the
case of any Ratio Tested Commitment Amount, established) pursuant to clause (i) of the definition of “Maximum Incremental
Facilities Amount” or subsection 7.1(b)(i)(II), minus (ii) the sum of (A) the amount of such Indebtedness
consisting of Indebtedness under the ABL Facility and (B) cash, Cash Equivalents and Temporary Cash Investments held by
the Borrower and its Restricted Subsidiaries as of the end of the most recent four consecutive fiscal quarters of the Borrower
ending prior to the date of such determination for which consolidated financial statements of the Borrower (or, any Parent whose
financial statements satisfy the Borrower’s reporting obligations under subsection 6.1(a) or 6.1(b)) are available.
“Consolidated
Secured Leverage Ratio”: as of any date of determination, the ratio of (x) Consolidated Secured Indebtedness as
at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) to (y) the aggregate amount
of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters of the Borrower ending prior to the date
of such determination for which consolidated financial statements of the Borrower (or, any Parent whose financial statements satisfy
the Borrower’s reporting obligations under subsection 6.1(a) or 6.1(b)) are available, provided that:
(i) if,
since the beginning of such period, the Borrower or any Restricted Subsidiary shall have made a Sale (including any Sale occurring
in connection with a transaction causing a calculation to be made hereunder), the Consolidated EBITDA for such period shall be
reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale
for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(ii) if,
since the beginning of such period, the Borrower or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have
made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be made hereunder),
Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the
first day of such period;
(iii) if,
since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into the Borrower
or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would
have required an adjustment pursuant to clause (i) or (ii) above if made by the Borrower or a Restricted Subsidiary since the beginning
of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or
Purchase occurred on the first day of such period; and
(iv) Excluded
Junior Capital (and Consolidated Interest Expense in respect thereof) shall be excluded from the calculation of the Consolidated
Secured Leverage Ratio;
provided that, (x)
in the event that the Borrower shall classify Indebtedness Incurred on the date of determination as secured in part pursuant to
subsection 7.2(k)(i) in respect of Indebtedness Incurred pursuant to subsection 7.1(b)(i)(II) or clause (i) of the definition of
“Maximum Incremental Facilities Amount” and in part pursuant to one or more other clauses of subsection 7.2 (other
than subsection 7.2(r)), as provided in clause (w) of the second sentence of subsection 7.2, any calculation of the Consolidated
Secured Leverage Ratio, including in the definition of “Maximum Incremental Facilities Amount,” shall not include any
such Indebtedness (and shall not give effect to any Discharge of Indebtedness from the proceeds thereof) to the extent secured
pursuant to any such other clause of subsection 7.2 and (y) in the event that the Borrower shall classify Indebtedness Incurred
on the date of determination as secured in part pursuant to subsection 7.2(r) and in part pursuant to one or more other clauses
of subsection 7.2 (other than subsection 7.2(k)(i) in respect of Indebtedness Incurred pursuant to subsection 7.1(b)(i)(II) or
clause (i) of the definition of “Maximum Incremental Facilities Amount”), as provided in clause (x) of the second sentence
of subsection 7.2, any calculation of the Consolidated Secured Leverage Ratio shall not include any such Indebtedness (and shall
not give effect to any Discharge of Indebtedness from the proceeds thereof) to the extent secured pursuant to any such other clause
of subsection 7.2.
For purposes of this
definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings
relating thereto, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies
relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by a Responsible Officer of the
Borrower.
“Consolidated
Tangible Assets”: as of any date of determination, the total assets less the sum of the goodwill, net, and other intangible
assets, net, in each case reflected on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries as at the
end of the most recently ended fiscal quarter of the Borrower for which such a balance sheet is available, determined on a Consolidated
basis in accordance with GAAP (and, in the case of any determination relating to any Incurrence of Indebtedness or Liens or any
Investment, on a pro forma basis including any property or assets being acquired in connection therewith).
“Consolidated
Total Indebtedness”: as of any date of determination, an amount equal to (i) the aggregate principal amount of
outstanding Indebtedness of the Borrower and its Restricted Subsidiaries as of such date consisting of (without duplication) Indebtedness
for borrowed money (including Purchase Money Obligations and unreimbursed outstanding drawn amounts under funded letters of credit),
Capitalized Lease Obligations, debt obligations evidenced by bonds, debentures, notes or similar instruments, Disqualified Stock,
and (in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor) Preferred Stock, determined on a Consolidated
basis in accordance with GAAP (excluding (x) items eliminated in Consolidation and (y) Hedging Obligations), minus
(ii) the sum of (A) the amount of such Indebtedness consisting of Indebtedness under the ABL Facility and (B)
cash, Cash Equivalents and Temporary Cash Investments held by the Borrower and its Restricted Subsidiaries as of the end of the
most recent four consecutive fiscal quarters of the Borrower ending prior to the date of such determination for which consolidated
financial statements of the Borrower (or, any Parent whose financial statements satisfy the Borrower’s reporting obligations
under subsection 6.1(a) or 6.1(b)) are available.
“Consolidated
Total Leverage Ratio”: as of any date of determination, the ratio of (x) Consolidated Total Indebtedness as at
such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) to (y) the aggregate amount
of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters of the Borrower ending prior to the date
of such determination for which consolidated financial statements of the Borrower (or, any Parent whose financial statements satisfy
the Borrower’s reporting obligations under subsection 6.1(a) or 6.1(b)) are available, provided that:
(i) if,
since the beginning of such period, the Borrower or any Restricted Subsidiary shall have made a Sale (including any Sale occurring
in connection with a transaction causing a calculation to be made hereunder), the Consolidated EBITDA for such period shall be
reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale
for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(ii) if,
since the beginning of such period, the Borrower or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have
made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be made hereunder),
Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the
first day of such period;
(iii) if,
since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into the Borrower
or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would
have required an adjustment pursuant to clause (i) or (ii) above if made by the Borrower or a Restricted Subsidiary since the beginning
of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or
Purchase occurred on the first day of such period; and
(iv) Excluded
Junior Capital (and Consolidated Interest Expense in respect thereof) shall be excluded from the calculation of the Consolidated
Total Leverage Ratio;
provided that, for purposes
of the foregoing calculation, in the event that the Borrower shall classify Indebtedness Incurred on the date of determination
as Incurred in part pursuant to subsection 7.1(b)(x) or 7.1(b)(xvi) (other than by reason of the respective proviso to such subsection
7.1(b)(x) or 7.1(b)(xvi)) and in part pursuant to one or more other clauses of subsection 7.1(b) and/or (unless the Borrower at
its option has elected to disregard Indebtedness being Incurred on the date of determination in part pursuant to the respective
proviso to subsection 7.1(b)(x) or 7.1(b)(xvi) for purposes of calculating the Consolidated Coverage Ratio for Incurring Indebtedness
on the date of determination in part under subsection 7.1(a)) pursuant to subsection 7.1(a) (as provided in subsections 7.1(c)(ii)
and 7.1(c)(iii)), Consolidated Total Indebtedness shall not include any such Indebtedness Incurred pursuant to one or more such
other clauses of subsection 7.1(b) and/or pursuant to subsection 7.1(a), and shall not give effect to any Discharge of any Indebtedness
from the proceeds of any such Indebtedness being disregarded for purposes of the calculation of the Consolidated Total Leverage
Ratio that otherwise would be included in Consolidated Total Indebtedness.
For purposes of this
definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings
relating thereto, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies
relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by a Responsible Officer of the
Borrower.
“Consolidation”:
the consolidation of the accounts of each of the Restricted Subsidiaries with those of the Borrower in accordance with GAAP; provided
that “Consolidation” will not include consolidation of the accounts of any Unrestricted Subsidiary, but the interest
of the Borrower or any Restricted Subsidiary in any Unrestricted Subsidiary will be accounted for as an investment. The term “Consolidated”
has a correlative meaning.
“Contingent
Obligation”: with respect to any Person, any obligation of such Person guaranteeing any obligation that does not constitute
Indebtedness (a “primary obligation”) of any other Person (the “primary obligor”) in any
manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (1) to purchase
any such primary obligation or any property constituting direct or indirect security therefor, (2) to advance or supply
funds (a) for the purchase or payment of any such primary obligation, or (b) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or (3) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation against loss in respect thereof.
“Contractual
Obligation”: as to any Person, any provision of any material security issued by such Person or of any material agreement,
instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Contribution
Amounts”: the aggregate amount of capital contributions applied by the Borrower to permit the Incurrence of Contribution
Indebtedness pursuant to subsection 7.1(b)(xii).
“Contribution
Indebtedness”: Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate principal amount not greater
than twice the aggregate amount of cash contributions (other than Excluded Contributions, the proceeds from the issuance of Disqualified
Stock or contributions by the Borrower or any Restricted Subsidiary) made to the capital of the Borrower or such Restricted Subsidiary
after the Restatement Effective Date (whether through the issuance or sale of Capital Stock or otherwise); provided
that such Contribution Indebtedness (a) is Incurred within 180 days after the receipt of the related cash contribution and
(b) is so designated as Contribution Indebtedness pursuant to a certificate signed by a Responsible Officer of the Borrower
on the date of Incurrence thereof.
“Covered Liability”:
as defined in subsection 10.23.
“Credit Facilities”:
one or more of (i) the Term Loan Facility, (ii) the ABL Facility, (iii) the ABS Facility (unless otherwise
designated by the Borrower as not a Credit Facility), (iv) the CMBS Facility (unless otherwise designated by the Borrower
as not a Credit Facility) and (v) any other facilities or arrangements designated by the Borrower, in each case with one
or more banks or other lenders or institutions providing for revolving credit loans, term loans, receivables, inventory or real
estate financings (including through the sale of receivables, inventory, real estate and/or other assets to such institutions or
to special purpose entities formed to borrow from such institutions against such receivables, inventory, real estate and/or other
assets or the creation of any Liens in respect of such receivables, inventory, real estate and/or other assets in favor of such
institutions), letters of credit or other Indebtedness, in each case, including all agreements, instruments and documents executed
and delivered pursuant to or in connection with any of the foregoing, including but not limited to any notes and letters of credit
issued pursuant thereto and any guarantee and collateral agreement, patent, trademark and copyright security agreement, mortgages
or letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, in each
case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured,
replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original banks,
lenders or institutions or other banks, lenders or institutions or otherwise, and whether provided under any original Credit Facility
or one or more other credit agreements, indentures, financing agreements or other Credit Facilities or otherwise). Without limiting
the generality of the foregoing, the term “Credit Facility” shall include any agreement (i) changing the maturity
of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries as additional borrowers or guarantors
thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv)
otherwise altering the terms and conditions thereof.
“Credit Facility
Indebtedness”: any and all amounts, whether outstanding on the Restatement Effective Date or thereafter Incurred, payable
under or in respect of any Credit Facility, including any principal, premium, interest (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the Borrower or any Restricted Subsidiary, whether or
not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, guarantees,
other monetary obligations of any nature and all other amounts payable thereunder or in respect thereof.
“Currency
Agreement”: in respect of a Person, any foreign exchange contract, currency swap agreement or other similar agreement
or arrangements (including derivative agreements or arrangements), as to which such Person is a party or a beneficiary.
“Default”:
any of the events specified in Section 8, whether or not any requirement for the giving of notice (other than, in the case of subsection
8(e), a Default Notice), the lapse of time, or both, or any other condition specified in Section 8, has been satisfied.
“Default Notice”:
as defined in subsection 8(e).
“Defaulting
Lender”: any Agent or Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part
of the definition of “Lender Default”.
“Designated
Noncash Consideration”: noncash consideration received by the Borrower or one of its Restricted Subsidiaries in connection
with an Asset Disposition that is so designated as Designated Noncash Consideration pursuant to a certificate signed by a Responsible
Officer of the Borrower and delivered to the Administrative Agent, setting forth the basis of such valuation.
“Designated
Preferred Stock”: Preferred Stock of the Borrower (other than Disqualified Stock) or any Parent that is issued after
the Restatement Effective Date for cash (other than to a Restricted Subsidiary) and is so designated as Designated Preferred Stock,
pursuant to a certificate signed by a Responsible Officer of the Borrower and delivered to the Administrative Agent; provided
that the cash proceeds of such issuance shall be excluded from the calculation set forth in subsection 7.5(a)(iii)(B).
“Designation
Date”: as defined in subsection 2.6(f).
“Discharge”:
as defined in the definition of “Consolidated Coverage Ratio.”
“Discount
Prepayment Accepting Lender”: as defined in subsection 3.4(i).
“Discount
Range”: as defined in subsection 3.4(i).
“Discount
Range Prepayment Amount”: as defined in subsection 3.4(i).
“Discount
Range Prepayment Notice”: a written notice of a Borrower Solicitation of Discount Range Prepayment Offers made pursuant
to subsection 3.4(i) substantially in the form of Exhibit K.
“Discount
Range Prepayment Offer”: the irrevocable written offer by a Lender, substantially in the form of Exhibit L, submitted
in response to an invitation to submit offers following the Administrative Agent’s receipt of a Discount Range Prepayment
Notice.
“Discount Range
Prepayment Response Date”: as defined in subsection 3.4(i).
“Discount
Range Proration”: as defined in subsection 3.4(i).
“Discounted Prepayment
Determination Date”: as defined in subsection 3.4(i).
“Discounted
Prepayment Effective Date”: in the case of a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of
Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers, five Business Days following the receipt
by each relevant Term Loan Lender of notice from the Administrative Agent in accordance with subsection 3.4(i)(ii), subsection
3.4(i)(iii) or subsection 3.4(i)(iv), as applicable unless a shorter period is agreed to between the Borrower and the Administrative
Agent.
“Discounted
Term Loan Prepayment”: as defined in subsection 3.4(i).
“Disinterested
Directors”: with respect to any Affiliate Transaction, one or more members of the Board of Directors of the Borrower,
or one or more members of the Board of Directors of a Parent, having no material direct or indirect financial interest in or with
respect to such Affiliate Transaction. A member of any such Board of Directors shall not be deemed to have such a financial interest
by reason of such member’s holding Capital Stock of the Borrower or any Parent or any options, warrants or other rights in
respect of such Capital Stock or by reason of such member receiving any compensation in respect of such member’s role as
director.
“Disqualified
Lender”: any competitor of the Borrower and its Restricted Subsidiaries that is in the same or a similar line of business
as the Borrower and its Restricted Subsidiaries or any affiliate of such competitor, in each case designated in writing by the
Borrower to the Administrative Agent from time to time.
“Disqualified
Stock”: with respect to any Person, any Capital Stock (other than Management Stock) that by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable or exercisable) or upon the happening of any event
(other than following the occurrence of a Change of Control or other similar event described under such terms as a “change
of control,” or an Asset Disposition or other disposition or “Asset Disposition” as defined in the Senior Notes
Indenture) (i) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii) is convertible
or exchangeable for Indebtedness or Disqualified Stock or (iii) is redeemable at the option of the holder thereof (other
than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control,”
or an Asset Disposition or other disposition or “Asset Disposition” as defined in the Senior Notes Indenture), in whole
or in part, in each case on or prior to the Initial Term Loan Maturity Date; provided that Capital Stock issued to
any employee benefit plan, or by any such plan to any employees of the Borrower or any Subsidiary, shall not constitute Disqualified
Stock solely because it may be required to be repurchased or otherwise acquired or retired in order to satisfy applicable statutory
or regulatory obligations.
“Dollars”
and “$”: dollars in lawful currency of the United States of America.
“Domestic
Subsidiary”: any Restricted Subsidiary of the Borrower that is not a Foreign Subsidiary.
“Dormant Subsidiary”:
any Subsidiary of the Borrower that carries on no operations, had revenues of less than $4.0 million during the most recently completed
period of four consecutive fiscal quarters of the Borrower and has total assets of less than $4.0 million as of the last day of
such period; provided that the assets of all Subsidiaries constituting Dormant Subsidiaries shall at no time exceed
$20.0 million in the aggregate and the revenues of all Subsidiaries constituting Dormant Subsidiaries for any four consecutive
fiscal quarters shall at no time exceed $20.0 million in the aggregate.
“EEA Financial
Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject
to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent
of an institution described in clause (a) of this definition and is subject to the supervision of an EEA Resolution Authority,
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 of an EEA Resolution Authority with its parent.
“EEA Member
Country”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution
Authority”: any public administrative authority or any person entrusted with public administrative authority of any EEA
Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eighth Amendment”:
the Eighth Amendment, dated as of April 24, 2020, among the Administrative Agent, the Borrower and each Lender party thereto.
“Eleventh
Amendment”: the Eleventh Amendment, dated as of the Eleventh Amendment Effective Date, among the Administrative Agent, the
Collateral Agent, the Borrower and the Lenders party thereto.
“Eleventh
Amendment Effective Date”: August 22, 2023.
“Environmental
Costs”: any and all costs or expenses (including attorney’s and consultant’s fees, investigation and laboratory
fees, response costs, court costs and litigation expenses, fines, penalties, damages, settlement payments, judgments and awards),
of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way relating to, any actual or
alleged violation of, noncompliance with or liability under any Environmental Laws. Environmental Costs include any and all of
the foregoing, without regard to whether they arise out of or are related to any past, pending or threatened proceeding of any
kind.
“Environmental
Laws”: any and all U.S. or foreign federal, state, provincial, territorial, foreign, local or municipal laws, rules,
orders, enforceable guidelines, orders-in-council, regulations, statutes, ordinances, codes, decrees, and such requirements of
any Governmental Authority properly promulgated and having the force and effect of law or other Requirements of Law (including
common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health (as it
relates to exposure to Materials of Environmental Concern) or the environment (including ambient air, indoor air, surface water,
groundwater, land surface, subsurface strata and natural resources such as wetlands, flora and fauna), as have been, or now or
at any relevant time hereafter are, in effect.
“Environmental
Permits”: any and all permits, licenses, registrations, notifications, exemptions and any other authorization required
under any Environmental Law.
“Equipment”:
vehicles consisting of refrigerated straight trucks, tractor trucks, refrigerated van trailers, other trucks and trailers with
refrigeration units, and other vans, trucks, tractors and trailers.
“Equity Offering”:
a sale of Capital Stock (x) that is a sale of Capital Stock of the Borrower (other than Disqualified Stock) or (y)
the proceeds of which are (or are intended to be) contributed to the equity capital of the Borrower or any of its Restricted Subsidiaries.
“ERISA”:
the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder.
“EU Bail-In
Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor
person), as in effect from time to time.
“Event of
Default”: any of the events specified in Section 8, provided that any requirement for the giving of notice,
the lapse of time, or both, or any other condition, has been satisfied.
“Excess Proceeds”:
as defined in subsection 7.4(b)(ii).
“Exchange
Act”: the Securities Exchange Act of 1934, as amended from time to time.
“Excluded
Contribution”: Net Cash Proceeds, or the Fair Market Value (as of the date of contribution) of property or assets, received
by the Borrower as capital contributions to the Borrower after the Restatement Effective Date or from the issuance or sale (other
than to a Restricted Subsidiary) of Capital Stock (other than Disqualified Stock) of the Borrower, in each case to the extent designated
as an Excluded Contribution pursuant to a certificate signed by a Responsible Officer of the Borrower and not previously included
in the calculation set forth in subsection 7.5(a)(iii)(B)(x) for purposes of determining whether a Restricted Payment may be made.
“Excluded
Information”: as defined in subsection 3.4(i).
“Excluded
Junior Capital”: any Specified Equity Contributions (as defined in the ABL Credit Agreement) that consist of Junior Capital
included in the calculation of consolidated EBITDA thereunder for the prior 12 month period, in an amount not to exceed the amount
required to effect compliance with subsection 8.1 (or any similar provision) of the ABL Credit Agreement.
“Excluded
Liability”: any liability that is excluded under the Bail-In Legislation from the scope of any Bail-In Action including,
without limitation, any liability excluded pursuant to Article 44 of the Directive 2014/59/EU of the European Parliament and of
the Council of the European Union.
“Excluded
Subsidiary”: any (a) Special Purpose Subsidiary, (b) Subsidiary of a Foreign Subsidiary, (c) Unrestricted
Subsidiary, (d) Immaterial Subsidiary, (e) Dormant Subsidiary, (f) Captive Insurance Subsidiary, (g)
Domestic Subsidiary that is prohibited by any applicable Contractual Obligation or Requirement of Law from guaranteeing or granting
Liens to secure the Obligations at the time such Subsidiary becomes a Restricted Subsidiary (and for so long as such restriction
or any replacement or renewal thereof is in effect) or (h) Domestic Subsidiary with respect to which, in the reasonable
judgment of the Administrative Agent (confirmed in writing by notice to the Borrower), the cost or other consequences (including
any adverse tax consequences) of providing a Guarantee of the Obligations shall be excessive in view of the benefits to be obtained
by the Lenders therefrom.
“Excluded
Taxes”: any (a) Taxes measured by or imposed upon the net income of any Agent or Lender or its applicable lending
office, or any branch or affiliate thereof, (b) franchise Taxes, branch Taxes, Taxes on doing business or Taxes measured
by or imposed upon the overall capital or net worth of any Agent or Lender or its applicable lending office, or any branch or affiliate
thereof, in each case imposed by the jurisdiction under the laws of which such Agent or Lender, applicable lending office, branch
or affiliate is organized or is located, or in which its principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof and (c) Taxes imposed by reason of any connection between the
jurisdiction imposing such Tax and any Agent or Lender, applicable lending office, branch or affiliate other than a connection
arising solely from such Agent or Lender having executed, delivered or performed its obligations under, or received payment under
or enforced, this Agreement or any other Loan Document.
“Exempt Sale
and Leaseback Transaction”: any Sale and Leaseback Transaction (a) in which the sale or transfer of property occurs
within 180 days of the acquisition of such property by the Borrower or any of its Subsidiaries or (b) that involves property
with a book value equal to the greater of $200.0 million and 4.5% of Consolidated Tangible Assets or less and is not part of a
series of related Sale and Leaseback Transactions involving property with an aggregate value in excess of such amount and entered
into with a single Person or group of Persons.
“Existing
Loan”: as defined in subsection 2.6(a).
“Existing
Tranche”: as defined in subsection 2.6(a).
“Extended
Loan”: as defined in subsection 2.6(a).
“Extended
Tranche”: as defined in subsection 2.6(a).
“Extending
Lender”: as defined in subsection 2.6(b).
“Extension”:
any extension of Term Loans pursuant to subsection 2.6.
“Extension
Amendment”: as defined in subsection 2.6(c).
“Extension
Date”: as defined in subsection 2.6(d).
“Extension
Election”: as defined in subsection 2.6(b).
“Extension
of Credit”: as to any Lender, the making of a Loan by such Lender.
“Extension
Request”: as defined in subsection 2.6(a).
“Extension
Series”: all Extended Loans that are established pursuant to the same Extension Amendment (or any subsequent Extension
Amendment to the extent such Extension Amendment expressly provides that the Extended Loans provided for therein are intended to
be part of any previously established Extension Series) and that provide for the same interest margins and amortization schedule.
“Facility”:
each of (a) the Initial Term Loan Commitments and Extensions of Credit made thereunder, (b) the Incremental Commitments
of the same Tranche and Extensions of Credit made thereunder, (c) any Extended Loans of the same Extension Series and Extensions
of Credit made thereunder and (d) any Specified Refinancing Commitments of the same Tranche and Extensions of Credit made
thereunder, and collectively the “Facilities.”
“Fair Market
Value”: with respect to any asset or property, the fair market value of such asset or property as determined in good
faith by senior management of the Borrower or the Board of Directors of the Borrower, whose determination shall be conclusive.
“FATCA”:
Sections 1471 through 1474 of the Code, as of the Restatement Effective Date (or any amended or successor version that is substantively
comparable), and any regulations or administrative authority promulgated thereunder, and any agreements entered into pursuant to
Section 1471(b)(1) of the Code as in effect on the Restatement Effective Date (or any amended or successor version that is substantively
comparable), and, for the avoidance of doubt, any intergovernmental agreement (and related legislation, rules or practices) in
connection with implementing any of the foregoing.
“Federal District
Court”: as defined in subsection 10.13(a).
“Federal Funds
Effective Rate”: as defined in the definition of the term “ABR” in this subsection 1.1.
“Fifth Amendment”:
the Fifth Amendment, dated as of the Fifth Amendment Effective Date, among the Administrative Agent, the Collateral Agent, the
Borrower and the Lenders party thereto.
“Fifth Amendment
Effective Date”: June 22, 2018.
“Financing
Disposition”: any sale, transfer, conveyance or other disposition of, or creation or incurrence of any Lien on, property
or assets (a) by the Borrower or any Subsidiary thereof to or in favor of any Special Purpose Entity, or by any Special
Purpose Subsidiary, in each case in connection with the Incurrence by a Special Purpose Entity of Indebtedness, or obligations
to make payments to the obligor on Indebtedness, which may be secured by a Lien in respect of such property or assets or (b)
by the Borrower or any Subsidiary thereof to or in favor of any Special Purpose Entity that is not a Special Purpose Subsidiary.
“Fixed GAAP
Date”: July 3, 2007; provided that at any time after the Restatement Effective Date, the Borrower may by
written notice to the Administrative Agent elect to change the Fixed GAAP Date to be the date specified in such notice, and upon
such notice, the Fixed GAAP Date shall be such date for all periods beginning on and after the date specified in such notice.
“Fixed GAAP
Terms” means (a) the definitions of the terms “Borrowing Base,” “Capitalized Lease Obligation,”
“Consolidated Coverage Ratio,” “Consolidated EBITDA,” “Consolidated Interest Expense,” “Consolidated
Net Income,” “Consolidated Secured Indebtedness,” “Consolidated Secured Leverage Ratio,” “Consolidated
Tangible Assets,” “Consolidated Total Indebtedness,” “Consolidated Total Leverage Ratio,” “Consolidation,”
“Inventory” and “Receivables,” (b) all defined terms in the Loan Documents to the extent used in
or relating to any of the foregoing definitions, and all ratios and computations based on any of the foregoing definitions, and
(c) any other term or provision of the Loan Documents that, at the Borrower’s election, may be specified by the Borrower
by written notice to the Administrative Agent from time to time.
“Foreign Pension
Plan”: a registered pension plan which is subject to applicable pension legislation other than ERISA or the Code, which
a Subsidiary of the Borrower sponsors or maintains, or to which it makes or is obligated to make contributions.
“Foreign Plan”:
each Foreign Pension Plan, deferred compensation or other retirement or superannuation plan, fund, program, agreement, commitment
or arrangement whether oral or written, funded or unfunded, sponsored, established, maintained or contributed to, or required to
be contributed to, or with respect to which any liability is borne, outside the United States of America, by the Borrower or any
of its Subsidiaries, other than any such plan, fund, program, agreement or arrangement sponsored by a Governmental Authority.
“Foreign Subsidiary”:
(i) any Restricted Subsidiary of the Borrower that is not organized under the laws of the United States of America or any
state thereof or the District of Columbia and any Restricted Subsidiary of such Foreign Subsidiary and (ii) any Foreign
Subsidiary Holdco.
“Foreign Subsidiary
Holdco”: any Restricted Subsidiary of the Borrower that has no material assets other than securities or Indebtedness
of one or more Foreign Subsidiaries (or Subsidiaries thereof), and intellectual property relating to such Foreign Subsidiaries
(or Subsidiaries thereof) and other assets relating to an ownership interest in any such securities, Indebtedness, intellectual
property or Subsidiaries.
“Fourth Amendment”:
the Fourth Amendment, dated as of the Fourth Amendment Effective Date, among the Administrative Agent, the Collateral Agent, the
Borrower and the Lenders party thereto.
“Fourth Amendment
Effective Date”: November 30, 2017.
“GAAP”:
generally accepted accounting principles in the United States of America as in effect on the Fixed GAAP Date (for purposes of the
Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Agreement), including those set forth in the
opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by
a significant segment of the accounting profession, and subject to the following sentence. If at any time the SEC permits or requires
U.S.-domiciled companies subject to the reporting requirements of the Exchange Act to use IFRS in lieu of GAAP for financial reporting
purposes, the Borrower (or any applicable Parent) may elect by written notice to the Administrative Agent to so use IFRS in lieu
of GAAP and, upon any such notice, references herein to GAAP shall thereafter be construed to mean (a) for periods beginning
on and after the date specified in such notice, IFRS as in effect on the date specified in such notice (for purposes of the Fixed
GAAP Terms) and as in effect from time to time (for all other purposes of this Agreement) and (b) for prior periods, GAAP
as defined in the first sentence of this definition. All ratios and computations based on GAAP contained in this Agreement shall
be computed in conformity with GAAP.
“Governmental
Authority”: any nation or government, any state or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to government, including the European Union.
“Guarantee”:
any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person; provided that the term “Guarantee” shall not include endorsements for collection
or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Guarantee
and Collateral Agreement”: the Guarantee and Collateral Agreement, dated as of May 11, 2011, made by the Borrower and
the Guarantors party thereto in favor of the Administrative Agent and the Collateral Agent, as the same may be amended, supplemented,
waived or otherwise modified from time to time.
“Guarantor
Subordinated Obligations”: with respect to a Subsidiary Guarantor, any Indebtedness of such Subsidiary Guarantor (whether
outstanding on the Restatement Effective Date or thereafter Incurred) that is expressly subordinated in right of payment to the
obligations of such Subsidiary Guarantor under its Subsidiary Guarantee pursuant to a written agreement.
“Guarantors”:
the collective reference to each Subsidiary Guarantor that is from time to time party to the Guarantee and Collateral Agreement;
individually, a “Guarantor.”
“Hedge Agreements”:
collectively, Interest Rate Agreements, Currency Agreements and Commodities Agreements.
“Hedging Obligations”:
of any Person, the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodities Agreement.
“Holding”:
US Foods Holding Corp., a Delaware corporation, and any successor in interest thereto.
“Identified
Participating Lenders”: as defined in subsection 3.4(i).
“Identified
Qualifying Lenders”: as defined in subsection 3.4(i).
“IFRS”:
International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards
Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute
of Certified Public Accountants, or any successor to either such board, or the SEC, as the case may be), as in effect from time
to time.
“Immaterial
Subsidiary”: any Subsidiary of the Borrower designated by the Borrower to the Administrative Agent in writing that had
(a) total consolidated revenues of less than 2.5% of the total consolidated revenues of the Borrower and its Subsidiaries
during the most recently completed period of four consecutive fiscal quarters of the Borrower for which financial statements have
been delivered under subsection 6.1 and (b) total consolidated assets of less than 2.5% of the total consolidated assets
of the Borrower and its Subsidiaries as of the last day of such period; provided that (x) for purposes of
subsection 6.9, any Special Purpose Subsidiary shall be deemed to be an “Immaterial Subsidiary” and (y) Immaterial
Subsidiaries (other than any Special Purpose Subsidiary) shall not, in the aggregate, (1) have had revenues in excess of
10.0% of the total consolidated revenues of the Borrower and its Subsidiaries during the most recently completed period of four
consecutive fiscal quarters for which financial statements have been delivered under subsection 6.1 or (2) have had total
assets in excess of 10.0% of the total consolidated assets of the Borrower and its Subsidiaries as of the last day of such period.
Any Subsidiary so designated as an Immaterial Subsidiary that fails to meet the foregoing as of the last day of any such four consecutive
fiscal quarter period shall continue to be deemed an “Immaterial Subsidiary” hereunder until the date that is 60 days
following the delivery of annual or quarterly financial statements pursuant to subsection 6.1 with respect to the last quarter
of such four consecutive fiscal quarter period.
“Increase
Supplement”: as defined in subsection 2.5(c).
“Incremental
B-2019 Term Commitment”: as to any Lender, its obligation to make Incremental B-2019 Term Loans to the Borrower pursuant
to subsection 2.1(b) and the Sixth Amendment in an aggregate principal amount not to exceed the amount set forth therein for such
Lender, as such amount may be adjusted from time to time in accordance with the Sixth Amendment. The original aggregate principal
amount of the Incremental B-2019 Term Commitments on the Sixth Amendment Effective Date is $1,500,000,000.
“Incremental
B-2019 Term Lender”: a Lender holding an Incremental B-2019 Term Commitment or any Incremental B-2019 Term Loans.
“Incremental
B-2019 Term Loan”: any Term Loan made pursuant to subsection 2.1(b) and the Sixth Amendment; and collectively, the “Incremental
B-2019 Term Loans”.
“Incremental
B-2019 Term Loan Maturity Date”: September 13, 2026.
“Incremental
B-2021 Term Commitment”: as to any Lender, its obligation to make Incremental B-2021 Term Loans to the Borrower pursuant
to subsection 2.1(c) and the NinthEleventh
Amendment in an aggregate principal amount as not
to exceed the amount set forth inopposite
such Lender’s name on Schedule I to the NinthEleventh
Amendment (or if such Lender is a Cashless Term Lender (as defined in the Eleventh
Amendment), an amount not to exceed 100% of the outstanding principal amount of the Existing Term Loans (as defined in the Eleventh
Amendment) held by such Lender (or such lesser amount allocated to such Lender by the Administrative Agent) immediately prior
to the Eleventh Amendment Effective Date), as such amount may be adjusted or reduced pursuant to the terms hereof.
The original aggregate principal amount of the Incremental B-2021 Term Commitments on the NinthEleventh
Amendment Effective Date is $900,000,000721,500,000.
“Incremental
B-2021 Term Lender”: a Lender holding an Incremental B-2021 Term Commitment or any Incremental B-2021 Term Loans.
“Incremental
B-2021 Term Loan”: any Term Loan made pursuant to Section 2.1(c) and the NinthEleventh
Amendment; and collectively, the “Incremental B-2021 Term Loans”.
“Incremental
B-2021 Term Loan Maturity Date”: November 22, 2028.
“Incremental
Commitment Amendment”: as defined in subsection 2.5(d).
“Incremental
Commitments”: as defined in subsection 2.5(a).
“Incremental
Indebtedness”: Indebtedness incurred after the Restatement Effective Date by the Borrower pursuant to and in accordance
with subsection 2.5.
“Incremental
Lenders”: as defined in subsection 2.5(b).
“Incremental
Loans”: as defined in subsection 2.5(d).
“Incremental
Revolving Commitments”: as defined in subsection 2.5(a).
“Incremental
Term Loan”: any Loan made pursuant to an Incremental Term Loan Commitment.
“Incremental
Term Loan Commitments”: as defined in subsection 2.5(a).
“Incur”:
issue, assume, enter into any Guarantee of, incur or otherwise become liable for; and the terms “Incurs,” “Incurred”
and “Incurrence” shall have a correlative meaning; provided that any Indebtedness or Capital
Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise)
shall be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary. Accrual of interest, the accretion of accreted
value, the payment of interest in the form of additional Indebtedness, and the payment of dividends on Capital Stock constituting
Indebtedness in the form of additional shares of the same class of Capital Stock, will be deemed not to be an Incurrence of Indebtedness.
Any Indebtedness issued at a discount (including Indebtedness on which interest is payable through the issuance of additional
Indebtedness) shall be deemed Incurred at the time of original issuance of the Indebtedness at the initial accreted amount thereof.
“Indebtedness”:
with respect to any Person on any date of determination (without duplication):
(i) the
principal of indebtedness of such Person for borrowed money;
(ii) the
principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(iii) all
reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments
(the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of
credit, bankers’ acceptances or other instruments plus the aggregate amount of drawings thereunder that have not
then been reimbursed);
(iv) all
obligations of such Person to pay the deferred and unpaid purchase price of property (except Trade Payables), which purchase price
is due more than one year after the date of placing such property in final service or taking final delivery and title thereto;
(v) all
Capitalized Lease Obligations of such Person;
(vi) the
redemption, repayment or other repurchase amount of such Person with respect to any Disqualified Stock of such Person or (if such
Person is a Subsidiary of the Borrower other than a Subsidiary Guarantor) any Preferred Stock of such Subsidiary, but excluding,
in each case, any accrued dividends (the amount of such obligation to be equal at any time to the maximum fixed involuntary redemption,
repayment or repurchase price for such Capital Stock, or if less (or if such Capital Stock has no such fixed price), to the involuntary
redemption, repayment or repurchase price therefor calculated in accordance with the terms thereof as if then redeemed, repaid
or repurchased, and if such price is based upon or measured by the fair market value of such Capital Stock, such fair market value
shall be as determined in good faith by senior management of the Borrower, the Board of Directors of the Borrower or the Board
of Directors of the issuer of such Capital Stock);
(vii) all
Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such
Person; provided that the amount of Indebtedness of such Person shall be the lesser of (A) the fair market
value of such asset at such date of determination (as determined in good faith by the Borrower) and (B) the amount of such
Indebtedness of such other Persons;
(viii) all
Guarantees by such Person of Indebtedness of other Persons, to the extent so Guaranteed by such Person; and
(ix) to
the extent not otherwise included in this definition, net Hedging Obligations of such Person (the amount of any such obligation
to be equal at any time to the termination value of such agreement or arrangement giving rise to such Hedging Obligation that
would be payable by such Person at such time);
provided
that Indebtedness shall not include Contingent Obligations Incurred in the ordinary course of business. The amount of
Indebtedness of any Person at any date shall be determined as set forth above or as otherwise provided in this Agreement, or otherwise
shall equal the amount thereof that would appear as a liability on a balance sheet of such Person (excluding any notes thereto)
prepared in accordance with GAAP.
“Indemnified
Liabilities”: as defined in subsection 10.5.
“Indemnitee”:
as defined in subsection 10.5.
“Individual
Lender Exposure”: as to any Lender, the sum of such Lender’s Loan Exposure.
“Initial
Term Loan”: any Term Loan made pursuant to subsection 2.1(a), the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment and the Seventh Amendment; and collectively, the “Initial Term Loans”. From and after
the Ninth Amendment Effective Date, there shall not be any Initial Term Loans outstanding under this Agreement.
“Initial
Term Loan Commitment”: as to any Lender, (v) prior to the Third Amendment Effective Date, its obligation to make Initial
Term Loans to the Borrower pursuant to subsection 2.1(a) and the Second Amendment in an aggregate principal amount not to exceed
the amount set forth opposite such Lender’s name on Schedule A under the heading “Term Loan Commitment”, (w)
on and after the Third Amendment Effective Date and prior to the Fourth Amendment Effective Date, its obligation to make Initial
Term Loans to the Borrower pursuant to subsection 2.1(a) and the Third Amendment in an aggregate principal amount not to exceed
the amount set forth opposite such Lender’s name on Schedule A to the Third Amendment under the heading “Additional
Repriced Term Loan Commitment”, (x) on and after the Fourth Amendment Effective Date and prior to the Fifth Amendment Effective
Date, its obligation to make Initial Term Loans to the Borrower pursuant to subsection 2.1(a) and the Fourth Amendment in an aggregate
principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule A to the Fourth Amendment under
the heading “Additional Repriced Term Loan Commitment”, (y) on and after the Fifth Amendment Effective Date and prior
to the Seventh Amendment Effective Date, its obligation to make Initial Term Loans to the Borrower pursuant to subsection 2.1(a)
and the Fifth Amendment in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name
on Schedule A to the Fifth Amendment under the heading “Additional Repriced Term Loan Commitment” and (z) on and after
the Seventh Amendment Effective Date, its obligation to make Initial Term Loans to the Borrower pursuant to the Seventh Amendment
in an aggregate principal amount as set forth in the Seventh Amendment, in each case as such amount may be adjusted or reduced
pursuant to the terms hereof and thereof. The original aggregate amount of the Initial Term Loan Commitment on the Restatement
Effective Date is $2,200.0 million.
“Initial
Term Loan Maturity Date”: June 27, 2023.
“Insolvency”:
with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
“Insolvent”:
pertaining to a condition of Insolvency.
“Intellectual
Property”: as defined in subsection 4.8.
“Intercreditor
Agreement”: the Intercreditor Agreement, dated as of July 3, 2007, among the Administrative Agent, the Collateral Agent,
the ABL Administrative Agent and the ABL Collateral Agent, and acknowledged by certain of the Loan Parties, amended, restated,
supplemented or otherwise modified from time to time in accordance therewith or herewith.
“Interest
Payment Date”: (a) as to any ABR Loan, the last day of each March, June, September and December to occur while
such Term Loan is outstanding, and the final maturity date of such Term Loan, (b) as to any Term SOFR Loan having an Interest
Period of three months or less, the last day of such Interest Period and (c) as to any Term SOFR Loan having an Interest
Period longer than three months, (i) each day that is three months, or a whole multiple thereof, after the first day of
such Interest Period and (ii) the last day of such Interest Period.
“Interest
Period”: with respect to any Term SOFR Loan:
(a) initially,
the period commencing on the borrowing or conversion date, as the case may be, with respect to such Term SOFR Loan and ending
one, three or six months, or, if available to all relevant Lenders, a shorter period, as selected by the Borrower in its notice
of borrowing or notice of conversion, as the case may be, given with respect thereto; and
(b) thereafter,
each period commencing on the last day of the next preceding Interest Period applicable to such Term SOFR Loan and ending one,
three or six months, or, if available to all relevant Lenders, a shorter period, as selected by the Borrower by irrevocable notice
to the Administrative Agent not less than three Business Days (or such shorter period as may be agreed by the Administrative Agent
in its reasonable discretion) prior to the last day of the then current Interest Period with respect thereto;
provided
that all of the foregoing provisions relating to Interest Periods are subject to the following:
(i) if
any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month
in which event such Interest Period shall end on the immediately preceding Business Day;
(ii) any
Interest Period that would otherwise extend beyond the applicable Maturity Date shall end on the applicable Maturity Date;
(iii) any
Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month; and
(iv) the
Borrower shall select Interest Periods so as not to require a scheduled payment of any Term SOFR Loan during an Interest Period
for such Term Loan.
“Interest
Rate Agreement”: with respect to any Person, any interest rate protection agreement, future agreement, option agreement,
swap agreement, cap agreement, collar agreement, hedge agreement or other similar agreement or arrangement (including derivative
agreements or arrangements), as to which such Person is a party or a beneficiary.
“Inventory”:
goods held for sale, lease or use by a Person in the ordinary course of business, net of any reserve for goods that have been
segregated by such Person to be returned to the applicable vendor for credit, as determined in accordance with GAAP.
“Investment”:
in any Person by any other Person, means any direct or indirect advance, loan or other extension of credit (other than to customers,
dealers, licensees, franchisees, suppliers, consultants, directors, officers or employees of any Person in the ordinary course
of business) or capital contribution (by means of any transfer of cash or other property to others or any payment for property
or services for the account or use of others) to, or any purchase or acquisition of Capital Stock, Indebtedness or other similar
instruments issued by, such Person. For purposes of the definition of “Unrestricted Subsidiary” and subsection 7.5
only, (i) “Investment” shall include the portion (proportionate to the Borrower’s equity interest in
such Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of the Borrower at the time that such Subsidiary
is designated an Unrestricted Subsidiary; provided that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Borrower shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary
in an amount (if positive) equal to (x) the Borrower’s “Investment” in such Subsidiary at the time of
such redesignation less (y) the portion (proportionate to the Borrower’s equity interest in such Subsidiary)
of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation, (ii) any property transferred
to or from an Unrestricted Subsidiary shall be valued at its fair market value (as determined in good faith by the Borrower, which
determination shall be conclusive) at the time of such transfer and (iii) for purposes of subsection 7.5(a)(iii)(C) the
amount resulting from the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary shall be the Fair Market Value
of the Investment in such Unrestricted Subsidiary at the time of such redesignation. Guarantees shall not be deemed to be Investments.
The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced (at the Borrower’s
option) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value received in respect
of such Investment; provided that to the extent that the amount of Restricted Payments outstanding at any time pursuant
to subsection 7.5(a) is so reduced by any portion of any such amount or value that would otherwise be included in the calculation
of Consolidated Net Income, such portion of such amount or value shall not be so included for purposes of calculating the amount
of Restricted Payments that may be made pursuant to subsection 7.5(a).
“Investment
Company Act”: the Investment Company Act of 1940, as amended from time to time.
“Investment
Grade Rating”: a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent)
by S&P, or any equivalent rating by any other Rating Agency.
“Investment
Grade Securities”: (i) securities issued or directly and fully guaranteed or insured by the United States government
or any agency or instrumentality thereof (other than Cash Equivalents); (ii) debt securities or debt instruments with an
Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Borrower and
its Subsidiaries; (iii) investments in any fund that invests exclusively in investments of the type described in clauses
(i) and (ii) above, which fund may also hold cash pending investment or distribution; and (iv) corresponding instruments
in countries other than the United States customarily utilized for high quality investments.
“Investors”:
(i) the CD&R Investors and the KKR Investors, (ii) any Person that acquired Voting Stock of Holding on or prior
to July 3, 2007 and any Affiliate of such Person, and (iii) any of their respective successors in interest.
“IPO”:
the initial public offering of Holdings common stock, which closed on June 1, 2016.
“Judgment
Conversion Date”: as defined in subsection 10.8(a).
“Judgment
Currency”: as defined in subsection 10.8(a).
“Junior
Capital”: collectively, any Indebtedness of any Parent or the Borrower that (a) is not secured by any asset of
the Borrower or any Restricted Subsidiary, (b) is expressly subordinated to the prior payment in full of the Loans on terms
consistent with those for senior subordinated high yield debt securities issued by U.S. companies sponsored by either of the Sponsors
(as determined in good faith by the Borrower, which determination shall be conclusive), (c) has a final maturity date that
is not earlier than, and provides for no scheduled payments of principal prior to, the date that is 91 days after the Initial
Term Loan Maturity Date (other than through conversion or exchange of any such Indebtedness for Capital Stock (other than Disqualified
Stock) of the Borrower, Capital Stock of any Parent or any other Junior Capital), (d) has no mandatory redemption or prepayment
obligations other than (x) obligations that are subject to the prior payment in full in cash of the Loans or (y)
pursuant to an escrow or similar arrangement with respect to the proceeds of such Junior Capital and (e) does not require
the payment of cash interest until the date that is 91 days following the Initial Term Loan Maturity Date.
“KKR”:
Kohlberg Kravis Roberts & Co. L.P and any successor in interest thereto.
“KKR
Investors”: the collective reference to (i) KKR and (ii) any Affiliate of any Person referred to in clause
(i) of this definition.
“LCT
Election”: as defined in subsection 1.2 (h).
“LCT
Test Date”: as defined in subsection 1.2 (h).
“Lead
Arrangers”: Citigroup Global Markets Inc. on behalf of Citibank,
N.A., Citicorp USA, Inc. and Citicorp North America, Inc., Deutsche Bank
Securities Inc. (other than with respect to the Seventh Amendment), BMO Capital Markets Corp., Goldman Sachs Lending Partners
LLC, ING Capital LLC, JPMorgan Chase Bank, N.A., KKR Capital Markets LLC, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley Senior Funding, Inc., Natixis, New York Branch (other than with respect to the Seventh
Amendment), Coöperatieve Rabobank U.A., New York Branch, Wells Fargo Securities, LLC, with respect to the Sixth
Amendment, the Incremental Arrangers (as defined in the Sixth Amendment), with respect to the Seventh Amendment only, Fifth
Third Bank and SunTrust Robinson Humphrey, Inc., as Joint Lead Arrangers and Joint Bookrunning Managers under this Agreement,
with respect to the Eighth Amendment only, BofA Securities, Inc. and, with
respect to the Ninth Amendment, Wells Fargo Securities, LLC, Citigroup Global Markets Inc., BofA Securities, Inc., KKR
Capital Markets LLC, JPMorgan Chase Bank, N.A., Truist Securities, Inc., Fifth Third Bank, National Association, Morgan
Stanley Senior Funding, Inc., Goldman Sachs Bank USA, BMO Capital Markets Corp., Coöperatieve Rabobank U.A., New York
Branch, ING Gapital LLC and U.S. Bank National Association and with respect to the Eleventh
Amendment, Citibank, N.A., Wells
Fargo Securities, LLC, BofA Securities, Inc., JPMorgan Chase Bank, N.A., Truist Securities, Inc., U.S. Bank National
Association, Fifth Third Bank, National Association, Coöperatieve Rabobank U.A., New York Branch, PNC Capital Markets
LLC, Goldman Sachs Bank USA, TD Securities (USA) LLC, Morgan Stanley Senior Funding, Inc., MUFG Bank, Ltd. and KKR Capital
Markets LLC.
“Lender
Default”: (i) the refusal (which may be given verbally or in writing and has not been retracted) or failure of
any Lender to fund any portion of the Loans required to be funded by it hereunder within one Business Day of the date required
to be funded by it hereunder, unless such refusal or failure has been cured, (ii) the failure of any Lender to pay over
to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of
the date when due, unless the subject of a good faith dispute or unless such failure has been cured, (iii) an Agent or
Lender has admitted in writing that it is insolvent or such Agent or Lender becomes subject to a Lender-Related Distress Event
or (iv) an Agent or Lender has become the subject of a Bail-In Action.
“Lender
Joinder Agreement”: as defined in subsection 2.5(c).
“Lender-Related
Distress Event”: with respect to any Agent or Lender or any person that directly or indirectly controls such Agent or
Lender (each, a “Distressed Person”), as the case may be, a voluntary or involuntary case with respect to such
Distressed Person under any debtor relief law, or a custodian, conservator, receiver or similar official is appointed for such
Distressed Person or any substantial part of such Distressed Person’s assets, or such Distressed Person or any person that
directly or indirectly controls such Distressed Person is subject to a forced liquidation, or such Distressed Person makes a general
assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory
authority over such Distressed Person or its assets to be, insolvent or bankrupt, or such Distressed Person has, or has a direct
or indirect parent company that has, become the subject of a Bail-in Action; provided that a Lender-Related Distress
Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interest in any Agent
or Lender or any person that directly or indirectly controls such Lender by a Governmental Authority or an instrumentality thereof.
“Lenders”:
the several banks and other financial institutions from time to time party to this Agreement acting in their capacity as lenders,
together with, in each case, any affiliate of any such bank or financial institution through which such bank or financial institution
elects, by written notice to the Administrative Agent and the Borrower, to make any Loans available to the Borrower; provided
that for all purposes of voting or consenting with respect to (a) any amendment, supplementation or modification
of any Loan Document, (b) any waiver of any of the requirements of any Loan Document or any Default or Event of Default
and its consequences or (c) any other matter as to which a Lender may vote or consent pursuant to subsection 10.1, the
bank or financial institution making such election shall be deemed the “Lender” rather than such affiliate, which
shall not be entitled to so vote or consent. For the avoidance of doubt, the term “Lenders” shall not include any
Disqualified Lenders.
“Leverage
Excess Proceeds”: as defined in subsection 7.4(b).
“Liabilities”:
collectively, any and all claims, obligations, liabilities, causes of action, actions, suits, proceedings, investigations, judgments,
decrees, losses, damages, fees, costs and expenses (including interest, penalties and fees and disbursements of attorneys, accountants,
investment bankers and other professional advisors), in each case whether incurred, arising or existing with respect to third
parties or otherwise at any time or from time to time.
“Lien”:
any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
“Limited
Condition Transaction”: (x) any acquisition, including by way of merger, amalgamation, consolidation or other
business combination or the acquisition of Capital Stock or otherwise, by one or more of the Borrower and its Restricted Subsidiaries
of any assets, business or Person or any other Investment permitted by this Agreement whose consummation is not conditioned on
the availability of, or on obtaining, third party financing or (y) any redemption, repurchase, defeasance, satisfaction
and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock requiring irrevocable notice in advance of such
redemption, repurchase, defeasance, satisfaction and discharge or prepayment.
“Loan”:
each Term Loan, Incremental Loan (including each Incremental B-2019 Term Loan and each Incremental B-2021 Term Loan), Extended
Loan and Specified Refinancing Loan, as the context requires; collectively, the “Loans.”
“Loan
Documents”: this Agreement, any Notes, the Intercreditor Agreement, the Guarantee and Collateral Agreement and any other
Security Documents, each as amended, supplemented, waived or otherwise modified from time to time.
“Loan
Exposure”: as to any Lender, at any time, the aggregate Commitments (or, if such Commitments have terminated or expired,
the aggregate amount then outstanding of Loans made pursuant to such Commitments) and outstanding Loans then constituted by such
Lender’s Commitment (or, if such Commitment has terminated or expired, the aggregate amount then outstanding of Loans made
pursuant to such Commitment) and outstanding Loans.
“Loan
Parties”: the Borrower and each Restricted Subsidiary that is a party to a Loan Document as a Guarantor or pledgor under
any of the Security Documents; individually, a “Loan Party.” No Excluded Subsidiary shall be a Loan Party.
“Management
Advances”: (1) loans or advances made to directors, management members, officers, employees or consultants of
any Parent, the Borrower or any Restricted Subsidiary (x) in respect of travel, entertainment or moving-related expenses
incurred in the ordinary course of business, (y) in respect of moving-related expenses incurred in connection with any
closing or consolidation of any facility, or (z) in the ordinary course of business and (in the case of this clause (z))
not exceeding $20.0 million in the aggregate outstanding at any time, (2) promissory notes of Management Investors acquired
in connection with the issuance of Management Stock to such Management Investors, (3) Management Guarantees, or (4)
other Guarantees of borrowings by Management Investors in connection with the purchase of Management Stock, which Guarantees are
permitted under subsection 7.1.
“Management
Agreements”: collectively (i) the Share Subscription Agreements, each dated as of July 3, 2007, between Holding
and each of the Investors party thereto, (ii) the Indemnification Agreements, each dated as of July 3, 2007, among Holding
and the Borrower and each of (a) CD&R and each CD&R Investor and (b) KKR and each KKR Investor, or Affiliates
thereof, respectively, (iii) the Amended and Restated Registration Rights Agreement, dated as of June 1, 2016, among Holding
and the Investors party thereto and any other Person party thereto from time to time, (iv) the Amended and Restated Stockholders
Agreement, dated as of June 1, 2016, by and among Holding and the Investors party thereto and any other Person party thereto from
time to time, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time in accordance
with the terms thereof and of this Agreement and (v) any other agreement primarily providing for indemnification and/or
contribution for the benefit of any Permitted Holder in respect of Liabilities resulting from, arising out of or in connection
with, based upon or relating to (a) any management consulting, financial advisory, financing, underwriting or placement
services or other investment banking activities, (b) any offering of securities or other financing activity or arrangement
of or by any Parent or any of its Subsidiaries or (c) any action or failure to act of or by any Parent or any of its Subsidiaries
(or any of their respective predecessors); in each case as the same may be amended, supplemented, waived or otherwise modified
from time to time in accordance with the terms thereof and of this Agreement.
“Management
Guarantees”: guarantees (x) of up to an aggregate principal amount outstanding at any time of $30.0 million of
borrowings by Management Investors in connection with their purchase of Management Stock or (y) made on behalf of, or in
respect of loans or advances made to, directors, officers, employees or consultants of any Parent, the Borrower or any Restricted
Subsidiary (1) in respect of travel, entertainment and moving-related expenses incurred in the ordinary course of business,
or (2) in the ordinary course of business and (in the case of this clause (2)) not exceeding $15.0 million in the aggregate
outstanding at any time.
“Management
Indebtedness”: Indebtedness Incurred to (a) any Person other than a Management Investor of up to an aggregate
principal amount outstanding at any time of $30.0 million, and (b) any Management Investor, in each case, to finance the
repurchase or other acquisition of Capital Stock of the Borrower, any Restricted Subsidiary or any Parent (including any options,
warrants or other rights in respect thereof) from any Management Investor, which repurchase or other acquisition of Capital Stock
is permitted by subsection 7.5.
“Management
Investors”: the officers, directors, employees and other members of the management of any Parent, the Borrower or any
of their respective Subsidiaries, or family members or relatives thereof, or trusts, partnerships or limited liability companies
for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date
beneficially own or have the right to acquire, directly or indirectly, Capital Stock of the Borrower, any Restricted Subsidiary
or any Parent.
“Management
Stock”: Capital Stock of the Borrower, any Restricted Subsidiary or any Parent (including any options, warrants or other
rights in respect thereof) held by any of the Management Investors.
“Market
Capitalization” means an amount equal to (i) the total number of issued and outstanding shares of capital stock
of the Borrower or any direct or indirect parent company on the date of declaration of the relevant dividend multiplied by
(ii) the arithmetic mean of the closing prices per share of such capital stock on the New York Stock Exchange (or,
if the primary listing of such capital stock is on another exchange, on such other exchange) for the 30 consecutive trading days
immediately preceding the date of declaration of such dividend.
“Material
Adverse Effect”: a material adverse effect on (a) the business, operations, property or condition (financial
or otherwise) of the Borrower and its Subsidiaries taken as a whole or (b) the validity or enforceability as to any Loan
Party party thereto of this Agreement or any of the other Loan Documents or the rights or remedies of the Administrative Agent,
the Collateral Agent and the Lenders under the Loan Documents, in each case taken as a whole.
“Material
Restricted Subsidiary”: any Restricted Subsidiary other than one or more Restricted Subsidiaries designated by the Borrower
that in the aggregate do not constitute Material Subsidiaries.
“Material
Subsidiaries”: Subsidiaries of the Borrower constituting, individually or in the aggregate (as if such Subsidiaries
constituted a single Subsidiary), a “significant subsidiary” in accordance with Rule 1-02 under Regulation S-X.
“Materials
of Environmental Concern”: any chemicals, substances, materials, wastes, pollutants, contaminants or compounds in any
form or regulated under, or which may give rise to liability under, any applicable Environmental Law, including gasoline, petroleum
(including crude oil or any fraction thereof), petroleum products or by-products, asbestos, toxic mold, polychlorinated biphenyls
and urea-formaldehyde insulation.
“Maturity
Date”: as the context may require, the Initial Term Loan Maturity Date, for any Incremental Commitments the “Maturity
Date” set forth in the applicable Incremental Commitment Amendment (which, in the case of the Incremental B-2019 Term Loans,
shall be the Incremental B-2019 Term Loan Maturity Date and, in the case of the Incremental B-2021 Term Loans, shall be the Incremental
B-2021 Term Loan Maturity Date), for any Extended Tranche the “Maturity Date” set forth in the applicable Extension
Amendment, and for any Specified Refinancing Tranche the “Maturity Date” set forth in the applicable Specified Refinancing
Amendment.
“Maximum
Incremental Facilities Amount”: at any date of determination, an amount (i) such that, after giving effect to
the Incurrence of such amount (or on the date of the initial commitment to lend such additional amount after giving pro forma
effect to the Incurrence of the entire committed amount of such amount), the Consolidated Secured Leverage Ratio shall be less
than or equal to 4.75:1.00 (it being understood that (A) if pro forma effect is given to the entire committed amount of
any such additional amount on the date of initial borrowing of such Indebtedness or entry into the definitive agreement providing
the commitment to fund such Indebtedness, such committed amount may thereafter be borrowed and reborrowed in whole or in part,
from time to time, without further compliance with this clause (i) and (B) for purposes of so calculating the Consolidated
Secured Leverage Ratio under this clause (i), any additional amount Incurred pursuant to this clause (i) shall be treated as if
such amount is Consolidated Secured Indebtedness, regardless of whether such amount is actually secured or is secured by Liens
ranking junior to the Liens securing the Senior Credit Facility Obligations) and/or (ii) not to exceed the sum of (x)
$900.0 million plus (y) an amount equal to the aggregate principal amount of all prepayments, repayments and redemptions
of Loans (including purchases of Term Loans by Holding and its Subsidiaries at or below par) (in each case, other than from the
proceeds of Incurrence of long-term refinancing Indebtedness); provided that proceeds from any incurrence under
clause (i) or (ii) of this definition may be utilized in a single transaction, by first calculating the incurrence under clause
(i) (and disregarding any concurrent incurrence of Indebtedness under clause (ii)) and then calculating the incurrence under clause
(ii). For purposes of any determination of the “Maximum Incremental
Facilities Amount,” the principal amount of Indebtedness
outstanding under clause (i) or (ii) of this definition shall be determined after giving effect to the application of proceeds
of any such Indebtedness to refinance any such other Indebtedness.
“Minimum
Exchange Tender Condition”: as defined in subsection 2.7(b).
“Minimum
Extension Condition”: as defined in subsection 2.6(g).
“Modifying
Lender”: as defined in subsection 10.1(h).
“Moody’s”:
Moody’s Investors Service, Inc., and its successors.
“Multiemployer
Plan”: a Plan which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net
Available Cash”: with respect to any Asset Disposition (including any Sale and Leaseback Transaction) or Recovery Event,
an amount equal to the cash payments received (including any cash payments received by way of deferred payment of principal pursuant
to a note or installment receivable or otherwise, but only as and when received, but excluding any other consideration received
in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the properties or assets that
are the subject of such Asset Disposition or Recovery Event or received in any other noncash form) therefrom, in each case net
of (i) all legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all federal,
state, provincial, foreign and local taxes required to be paid or to be accrued as a liability under GAAP, in each case as a consequence
of, or in respect of, such Asset Disposition or Recovery Event (including as a consequence of any transfer of funds in connection
with the application thereof in accordance with subsection 7.4), (ii) all payments made, and all installment payments required
to be made, on any Indebtedness (x) that is secured by any assets subject to such Asset Disposition or involved in such
Recovery Event, in accordance with the terms of any Lien upon such assets, or (y) that must by its terms, or, in order
to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds from such Asset Disposition
or Recovery Event, including but not limited to any payments required to be made to increase borrowing availability under any
revolving credit facility, (iii) all distributions and other payments required to be made to minority interest holders
in Subsidiaries or joint ventures as a result of such Asset Disposition or Recovery Event, or to any other Person (other than
the Borrower or a Restricted Subsidiary) owning a beneficial interest in the assets disposed of in such Asset Disposition or subject
to such Recovery Event, (iv) any liabilities or obligations associated with the assets disposed of in such Asset Disposition
or involved in such Recovery Event and retained, indemnified or insured by the Borrower or any Restricted Subsidiary after such
Asset Disposition or Recovery Event, including pension and other post-employment benefit liabilities, liabilities related to environmental
matters, and liabilities relating to any indemnification obligations associated with such Asset Disposition or Recovery Event,
(v) in the case of an Asset Disposition, the amount of any purchase price or similar adjustment (x) claimed by any
Person to be owed by the Borrower or any Restricted Subsidiary, until such time as such claim shall have been settled or otherwise
finally resolved, or (y) paid or payable by the Borrower or any Restricted Subsidiary, in either case in respect of such
Asset Disposition, (vi) in the case of any Recovery Event, any amount thereof that constitutes or represents reimbursement
or compensation for any amount previously paid by the Borrower or any of its Subsidiaries and (vii) in the case of any
Asset Disposition by, or Recovery Event relating to, any asset of the Borrower or any Restricted Subsidiary that is not a Subsidiary
Guarantor, any amount of proceeds from such Asset Disposition or Recovery Event to the extent (x) subject to any restriction
on the transfer thereof directly or indirectly to the Borrower, including by reason of applicable law or agreement (other than
any agreement entered into primarily for the purpose of imposing such a restriction) or (y) in the good faith determination
of the Borrower (which determination shall be conclusive), the transfer thereof directly or indirectly to the Borrower could reasonably
be expected to give rise to or result in (A) any violation of applicable law, (B) any liability (criminal, civil,
administrative or other) for any of the officers, directors or shareholders of the Borrower, any Restricted Subsidiary or any
Parent, (C) any violation of the provisions of any joint venture or other material agreement governing or binding upon
the Borrower or any Restricted Subsidiary, (D) any material risk of any such violation or liability referred to in any
of the preceding clauses (A), (B) and (C), (E) any adverse tax consequence for the Borrower, any Restricted Subsidiary
or any Parent, or (F) any cost, expense, liability or obligation (including any Tax) other than routine and immaterial
out-of-pocket expenses.
“Net
Cash Proceeds”: with respect to any issuance or sale of any securities or Indebtedness of the Borrower or any Subsidiary
by the Borrower or any Subsidiary, or any capital contribution, the cash proceeds of such issuance, sale, contribution or Incurrence
net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions
and brokerage, consultant and other fees actually incurred in connection with such issuance, sale, contribution or Incurrence
and net of all taxes paid or payable as a result, or in respect, thereof.
“New
York Courts”: as defined in subsection 10.13(a).
“New
York Supreme Court”: as defined in subsection 10.13(a).
“Ninth
Amendment”: the Ninth Amendment, dated as of the Ninth Amendment Effective Date, among the Administrative Agent, the
Collateral Agent, the Borrower and the Lenders party thereto.
“Ninth
Amendment Effective Date”: November 22, 2021.
“Non-Consenting
Lender”: as defined in subsection 10.1(g).
“Non-Defaulting
Lender”: any Lender other than a Defaulting Lender.
“Non-Excluded
Taxes”: all Taxes other than Excluded Taxes.
“Non-Extending
Lender”: as defined in subsection 2.6(e).
“Non-Modifying
Lender”: as defined in subsection 10.1(h).
“Notes”:
the Term Loan Notes.
“Obligation
Currency”: as defined in subsection 10.8(a).
“Obligations”:
with respect to any Indebtedness, any principal, premium (if any), interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Borrower or any Restricted Subsidiary whether or not a claim
for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such
Indebtedness (or of Obligations in respect thereof), other monetary obligations of any nature and all other amounts payable thereunder
or in respect thereof.
“Obligor”:
any purchaser of goods or services or other Person obligated to make payment to the Borrower or any of its Subsidiaries (other
than to any Special Purpose Subsidiaries and the Foreign Subsidiaries) in respect of a purchase of such goods or services.
“Offered
Amount”: as defined in subsection 3.4(i).
“Offered
Discount”: as defined in subsection 3.4(i).
“OID”:
as defined in subsection 2.5(d).
“Original
Term Loan Credit Agreement”: as defined in the Recitals hereto.
“Outstanding
Amount”: with respect to the Loans on any date, the principal amount thereof after giving effect to any borrowings and
prepayments or repayments thereof occurring on such date.
“Parent”:
Holding, any Other Parent and any other Person that is a Subsidiary of Holding or any Other Parent and of which the Borrower is
a Subsidiary, in each case, solely for so long as the Borrower remains a Subsidiary of such Person. As used herein, “Other
Parent” means a Person of which the Borrower becomes a Subsidiary after the Restatement Effective Date that is designated
by the Borrower as an “Other Parent”; provided that either (x) immediately after the Borrower
first becomes a Subsidiary of such Person, more than 50.0% of the Voting Stock of such Person shall be held by one or more Persons
that held more than 50.0% of the Voting Stock of the Borrower or a Parent of the Borrower immediately prior to the Borrower first
becoming such Subsidiary or (y) such Person shall be deemed not to be an Other Parent for the purpose of determining whether
a Change of Control shall have occurred by reason of the Borrower first becoming a Subsidiary of such Person. The Borrower shall
not in any event be deemed to be a “Parent”.
“Parent
Expenses”: (i) costs (including all professional fees and expenses) incurred by any Parent in connection with
maintaining its existence or in connection with its reporting obligations under, or in connection with compliance with, applicable
laws or applicable rules of any governmental, regulatory or self-regulatory body or stock exchange, this Agreement, any other
Transaction Document or any other agreement or instrument relating to Indebtedness of the Borrower or any Restricted Subsidiary,
including in respect of any reports filed with respect to the Securities Act, the Exchange Act or the respective rules and regulations
promulgated thereunder, (ii) expenses incurred by any Parent in connection with the acquisition, development, maintenance,
ownership, prosecution, protection and defense of its intellectual property and associated rights (including but not limited to
trademarks, service marks, trade names, trade dress, patents, copyrights and similar rights, including registrations and registration
or renewal applications in respect thereof; inventions, processes, designs, formulae, trade secrets, know-how, confidential information,
computer software, data and documentation, and any other intellectual property rights; and licenses of any of the foregoing) to
the extent such intellectual property and associated rights relate to the business or businesses of the Borrower or any Subsidiary
thereof, (iii) indemnification obligations of any Parent owing to directors, officers, employees or other Persons under
its charter or by-laws or pursuant to written agreements with or for the benefit of any such Person, or obligations in respect
of director and officer insurance (including premiums therefor), (iv) other administrative and operational expenses of
any Parent incurred in the ordinary course of business, (v) fees and expenses incurred by any Parent in connection with
maintenance and implementation of any management equity incentive plan, and (vi) fees and expenses incurred by any Parent
in connection with any offering of Capital Stock or Indebtedness, (w) which offering is not completed, or (x) where
the net proceeds of such offering are intended to be received by or contributed or loaned to the Borrower or a Restricted Subsidiary,
or (y) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received,
contributed or loaned, or (z) otherwise on an interim basis prior to completion of such offering so long as any Parent
shall cause the amount of such expenses to be repaid to the Borrower or the relevant Restricted Subsidiary out of the proceeds
of such offering promptly if completed.
“Participant”:
as defined in subsection 10.6(c).
“Participant
Register”: as defined in subsection 10.6(c).
“Participating
Lender”: as defined in subsection 3.4(i).
“Patriot
Act”: as defined in subsection 10.18.
“PBGC”:
the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor thereto).
“Periodic
Term SOFR Determination Day”: as defined in clause (a) of the definition of “Term SOFR”.
“Permitted
Affiliated Assignee”: any Sponsor, any investment fund managed or controlled by any Sponsor and any special purpose
vehicle established by any Sponsor or by one or more of such investment funds.
“Permitted
Debt Exchange”: as defined in subsection 2.7(a).
“Permitted
Debt Exchange Notes”: as defined in subsection 2.7(a).
“Permitted
Debt Exchange Offer”: as defined in subsection 2.7(a).
“Permitted
Holders”: any of the following: (i) any of the Investors; (ii) any of the Management Investors, CD&R,
KKR and their respective Affiliates; (iii) any investment fund or vehicle managed, sponsored or advised by CD&R, KKR
or any Affiliate thereof, and any Affiliate of or successor to any such investment fund or vehicle; (iv) any limited or
general partners of, or other investors in, any CD&R Investor or KKR Investor or any Affiliate thereof, or any such investment
fund or vehicle; and (v) any Person acting in the capacity of an underwriter in connection with a public or private offering
of Capital Stock of any Parent or the Borrower. In addition, any “person” (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act, as in effect on the Restatement Effective Date) whose status as a “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act, as in effect on the Restatement Effective Date) constitutes or results
in a Change of Control in respect of which the Borrower makes all payments of Term Loans and other amounts required by subsection
7.8(a), together with its Affiliates, shall thereafter constitute Permitted Holders.
“Permitted
Investment”: an Investment by the Borrower or any Restricted Subsidiary in, or consisting of, any of the following:
(i) (x)
a Restricted Subsidiary, (y) the Borrower, or (z) a Person that will, upon the making of such Investment, become
a Restricted Subsidiary (and any Investment held by such Person that was not acquired by such Person, or made pursuant to a commitment
by such Person that was not entered into, in contemplation of so becoming a Restricted Subsidiary);
(ii) another
Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all
or substantially all its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary (and, in each case, any Investment
held by such other Person that was not acquired by such Person, or made pursuant to a commitment by such Person that was not entered
into, in contemplation of such merger, consolidation or transfer);
(iii) Temporary
Cash Investments, Investment Grade Securities or Cash Equivalents;
(iv) receivables
owing to the Borrower or any Restricted Subsidiary, if created or acquired in the ordinary course of business;
(v) any
securities or other Investments received as consideration in, or retained in connection with, sales or other dispositions of property
or assets, including Asset Dispositions made in compliance with subsection 7.4;
(vi) securities
or other Investments received in settlement of debts created in the ordinary course of business and owing to, or of other claims
asserted by, the Borrower or any Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien,
or in satisfaction of judgments, including in connection with any bankruptcy proceeding or other reorganization of another Person;
(vii) Investments
in existence or made pursuant to legally binding written commitments in existence on the Restatement Effective Date, and in each
case any extension, modification, replacement, reinvestment or renewal thereof; provided that the amount of any
such Investment may be increased in such extension, modification, replacement, reinvestment or renewal only (x) as required
by the terms of such Investment or binding commitment as in existence on the Restatement Effective Date or (y) as otherwise
permitted under this Agreement;
(viii) Currency
Agreements, Interest Rate Agreements, Commodities Agreements and related Hedging Obligations, which obligations are Incurred in
compliance with subsection 7.1;
(ix) pledges
or deposits (x) with respect to leases or utilities provided to third parties in the ordinary course of business or (y)
made in connection with Liens permitted under subsection 7.2;
(x) (1)
Investments in or by any Special Purpose Subsidiary, or in connection with a Financing Disposition by, to, in or in favor of any
Special Purpose Entity, including Investments of funds held in accounts permitted or required by the arrangements governing such
Financing Disposition or any related Indebtedness, or (2) any promissory note issued by the Borrower, or any Parent; provided
that if such Parent receives cash from the relevant Special Purpose Entity in exchange for such note, an equal cash amount
is contributed by any Parent to the Borrower;
(xi)
bonds secured by assets leased to and operated by the Borrower or any Restricted Subsidiary that were
issued in connection with the financing of such assets so long as the Borrower or any Restricted Subsidiary may obtain title
to such assets at any time by paying a nominal fee, canceling such bonds and terminating the transaction;
(xii) any
Senior Notes;
(xiii) any
Investment to the extent made using Capital Stock of the Borrower (other than Disqualified Stock), Capital Stock of any Parent
or Junior Capital as consideration;
(xiv) Management
Advances;
(xv) Investments
in Related Businesses in an aggregate amount outstanding at any time not to exceed an amount equal to the greater of $200.0 million
and 4.2% of Consolidated Tangible Assets;
(xvi) any
transaction to the extent it constitutes an Investment that is permitted by and made in accordance with the provisions of subsection
7.6(b) (except transactions described in clauses (i), (v) and (vi) thereof); including any Investment pursuant to any transaction
described in clause (ii) of such subsection 7.6(b) (whether or not any Person party thereto is at any time an Affiliate of the
Borrower);
(xvii) any
Investment by any Captive Insurance Subsidiary in connection with its provision of insurance to the Borrower or its Subsidiaries
which Investment is made in the ordinary course of business of such Captive Insurance Subsidiary or by reason of applicable law,
rule, regulation or order, or is required or approved by any regulatory authority having jurisdiction over such Captive Insurance
Subsidiary or its business, as applicable; and
(xviii) other
Investments in an aggregate amount outstanding at any time not to exceed an amount equal to the greater of $225.0 million and
4.8% of Consolidated Tangible Assets.
If
any Investment pursuant to clause (xv) or (xviii) above, or subsection 7.5(b)(vii) or 7.5(b)(xii), as applicable, is made in any
Person that is not a Restricted Subsidiary and such Person thereafter (A) becomes a Restricted Subsidiary or (B)
is merged or consolidated into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, the
Borrower or a Restricted Subsidiary, then such Investment shall thereafter be deemed to have been made pursuant to clause (i)
or (ii) above, respectively, and not clause (xv) or (xviii) above, or subsection 7.5(b)(vii) or 7.5(b)(xii), as applicable.
“Permitted
Lien”: any Lien that is described in any of the clauses of subsection 7.2.
“Permitted
Payment”: as defined in subsection 7.5(b).
“Person”:
any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any other entity.
“Plan”:
at a particular time, any employee benefit plan which is covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is an “employer” as defined in Section 3(5) of ERISA.
“Preferred
Stock”: as applied to the Capital Stock of any corporation, Capital Stock of any class or classes (however designated)
that by its terms is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such corporation, over shares of Capital Stock of any other class of such corporation.
“Prepayment
Date”: as defined in subsection 3.4(e).
“Prime
Rate”: as defined in the definition of “ABR”.
“Purchase”:
as defined in the definition of “Consolidated Coverage Ratio.”
“Purchase
Money Obligations”: any Indebtedness Incurred to finance or refinance the acquisition, leasing, construction or improvement
of property (real or personal) or assets, and whether acquired through the direct acquisition of such property or assets or the
acquisition of the Capital Stock of any Person owning such property or assets, or otherwise.
“Qualifying
Lender”: as defined in subsection 3.4(i).
“Rating
Agency”: Moody’s or S&P or, if Moody’s or S&P or both shall not make an applicable rating publicly
available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Borrower which shall
be substituted for Moody’s or S&P or both, as the case may be.
“Real
Property”: land, buildings, structures and other improvements located thereon, fixtures attached thereto, and rights,
privileges, easements and appurtenances related thereto, and related property interests.
“Receivable”:
a right to receive payment pursuant to an arrangement with another Person pursuant to which such other Person is obligated to
pay, as determined in accordance with GAAP.
“Recovery
Event”: any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Borrower and its Restricted Subsidiaries constituting Collateral giving rise to Net Available Cash
to such Loan Party in excess of $50.0 million, to the extent that such settlement or payment does not constitute reimbursement
or compensation for amounts previously paid by the Borrower or any Restricted Subsidiary in respect of such casualty or condemnation.
“refinance”:
refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement, reissue, resell or extend (including
pursuant to any defeasance or discharge mechanism); and the terms “refinances,” “refinanced”
and “refinancing” as used for any purpose in this Agreement shall have a correlative meaning.
“Refinancing
Indebtedness”: Indebtedness that is Incurred to refinance any Indebtedness (or unutilized commitment in respect of Indebtedness)
existing on the Restatement Effective Date or Incurred (or established) in compliance with this Agreement (including Indebtedness
of the Borrower that refinances Indebtedness of any Restricted Subsidiary (to the extent permitted by this Agreement) and Indebtedness
of any Restricted Subsidiary that refinances Indebtedness of the Borrower or of another Restricted Subsidiary) including Indebtedness
that refinances Refinancing Indebtedness, and Indebtedness Incurred pursuant to a commitment that refinances any Indebtedness
or unutilized commitment; provided that:
(1) if
the Indebtedness being refinanced is Subordinated Obligations or Guarantor Subordinated Obligations, the Refinancing Indebtedness
has a final Stated Maturity at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the final Stated
Maturity of the Indebtedness being refinanced (or if shorter, of the Initial Term Loans),
(2) such
Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate
issue price) that is equal to or less than the sum of (x) the aggregate principal amount then outstanding of the Indebtedness
being refinanced, plus (y) an amount equal to any unutilized commitment relating to the Indebtedness being refinanced or otherwise
then outstanding under the financing arrangement being refinanced to the extent the unutilized commitment being refinanced could
be drawn in compliance with subsection 7.1 immediately prior to such refinancing, plus (z) fees, underwriting discounts, premiums
and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing,
and
(3) Refinancing
Indebtedness shall not include (x) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor that refinances
Indebtedness of the Borrower or a Subsidiary Guarantor that could not have been initially Incurred by such Restricted Subsidiary
pursuant to subsection 7.1 or (y) Indebtedness of the Borrower or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted
Subsidiary.
“Refunding
Capital Stock”: as defined in subsection 7.5(b)(i).
“Register”:
as defined in subsection 10.6(b).
“Regulation
S-X”: Regulation S-X promulgated by the SEC, as in effect on the Restatement Effective Date.
“Regulation
T”: Regulation T of the Board as in effect from time to time.
“Regulation
U”: Regulation U of the Board as in effect from time to time.
“Regulation
X”: Regulation X of the Board as in effect from time to time.
“Related
Business”: those businesses in which the Borrower or any of its Subsidiaries is engaged on the Restatement Effective
Date, or that are similar, related, complementary, incidental or ancillary thereto or extensions, developments or expansions thereof.
“Related
Parties”: with respect to any Person, such Person’s affiliates and the partners, officers, directors, trustees,
employees, shareholders, members, attorneys and other advisors, agents and controlling persons of such Person and of such Person’s
affiliates and “Related Party” shall mean any of them.
“Related
Taxes”: (x) any taxes, charges or assessments, including but not limited to sales, use, transfer, rental, ad
valorem, value-added, stamp, property, consumption, franchise, license, capital, net worth, gross receipts, excise, occupancy,
intangibles or similar taxes, charges or assessments (other than federal, state, foreign, provincial or local taxes measured by
income, and federal, state, foreign, provincial or local withholding imposed by any government or other taxing authority on payments
made by any Parent other than to another Parent), required to be paid by any Parent by virtue of its being incorporated or having
Capital Stock outstanding (but not by virtue of owning stock or other equity interests of any corporation or other entity other
than the Borrower, any of its Subsidiaries or any Parent), or being a holding company of the Borrower, any of its Subsidiaries
or any Parent or receiving dividends from or other distributions in respect of the Capital Stock of the Borrower, any of its Subsidiaries
or any Parent, or having guaranteed any obligations of the Borrower or any Subsidiary thereof, or having made any payment in respect
of any of the items for which the Borrower or any of its Subsidiaries is permitted to make payments to any Parent pursuant to
the covenant described under subsection 7.5, or acquiring, developing, maintaining, owning, prosecuting, protecting or defending
its intellectual property and associated rights (including but not limited to receiving or paying royalties for the use thereof)
relating to the business or businesses of the Borrower or any Subsidiary thereof, (y) any taxes of a Parent attributable
(1) to any taxable period (or portion thereof) ending on or prior to the Restatement Effective Date or incurred in connection
with the Transactions or (2) to any Parent’s receipt of (or entitlement to) any payment in connection with the Transactions
including any payment received after the Restatement Effective Date pursuant to any agreement related to the Transactions or (z)
any other federal, state, foreign, provincial or local taxes measured by income for which any Parent is liable, up to an amount
not to exceed, with respect to federal taxes, the amount of any such taxes that the Borrower and its Subsidiaries would have been
required to pay on a separate company basis, or on a consolidated basis as if the Borrower had filed a consolidated return on
behalf of an affiliated group (as defined in Section 1504 of the Code) of which it were the common parent, or with respect to
state, foreign, provincial or local taxes, the amount of any such taxes that the Borrower and its Subsidiaries would have been
required to pay on a separate company basis, or on a consolidated, combined, unitary or affiliated basis as if the Borrower had
filed a consolidated, combined, unitary or affiliated return on behalf of an affiliated group (as defined in the applicable state,
foreign, provincial or local tax laws for filing such return) consisting only of the Borrower and its Subsidiaries (in each case,
reduced by any such taxes paid directly by the Borrower or its Subsidiaries to the applicable Governmental Authority). Taxes shall
include all interest, penalties and additions relating thereto.
“Release”:
any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Material of Environmental Concern in, into, onto or through the environment.
“Reorganization”:
with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of
ERISA.
“Replacement
Intercreditor Agreement”: as defined in subsection 7.8.
“Reportable
Event”: any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under PBGC Reg. § 4043 or any successor regulation thereto.
“Repricing
Transaction”: other than in connection with a Transformative Acquisition or a transaction involving a Change of Control,
(a) with respect to the Initial Term Loans, the prepayment in full of the Initial Term Loans by the Borrower with the proceeds
of secured term loans (including any new, amended or additional loans or Term Loans under this Agreement, whether as a result
of an amendment to this Agreement or otherwise), that are broadly marketed or syndicated to banks and other institutional investors
in financings similar to the Initial Term Loans and having an effective interest cost or weighted average yield (as determined
prior to such prepayment by the Administrative Agent consistent with generally accepted financial practice and, in any event,
excluding any arrangement, structuring, syndication or commitment fees in connection therewith, and excluding any performance
or ratings based pricing grid that could result in a lower interest rate based on future performance, but including any Adjusted
Term SOFR floor or similar floor that is higher than the then applicable Adjusted Term SOFR) that is less than the interest rate
for or weighted average yield (as determined prior to such prepayment by the Administrative Agent on the same basis) of the Initial
Term Loans, including as may be effected through any amendment to this Agreement relating to the interest rate for, or weighted
average yield of, the Initial Term Loans, (b) with respect to the Incremental B-2019 Term Loans, the prepayment in full of the
Incremental B-2019 Term Loans by the Borrower with the proceeds of secured term loans (including any new, amended or additional
loans or Term Loans under this Agreement, whether as a result of an amendment to this Agreement or otherwise), that are broadly
marketed or syndicated to banks and other institutional investors in financings similar to the Incremental B-2019 Term Loans and
having an effective interest cost or weighted average yield (as determined prior to such prepayment by the Administrative Agent
consistent with generally accepted financial practice and, in any event, excluding any arrangement, structuring, syndication or
commitment fees in connection therewith, and excluding any performance or ratings based pricing grid that could result in a lower
interest rate based on future performance, but including any Adjusted Term SOFR floor or similar floor that is higher than the
then applicable Adjusted Term SOFR) that is less than the interest rate for or weighted average yield (as determined prior to
such prepayment by the Administrative Agent on the same basis) of the Incremental B-2019 Term Loans, including as may be effected
through any amendment to this Agreement relating to the interest rate for, or weighted average yield of, the Incremental B-2019
Term Loans and (c) with respect to the Incremental B-2021 Term Loans, the prepayment in full of the Incremental B-2021 Term Loans
by the Borrower with the proceeds of secured term loans (including any new, amended or additional loans or Term Loans under this
Agreement, whether as a result of an amendment to this Agreement or otherwise), that are broadly marketed or syndicated to banks
and other institutional investors in financings similar to the Incremental B-2021 Term Loans and having an effective interest
cost or weighted average yield (as determined prior to such prepayment by the Administrative Agent consistent with generally accepted
financial practice and, in any event, excluding any arrangement, structuring, syndication or commitment fees in connection therewith,
and excluding any performance or ratings based pricing grid that could result in a lower interest rate based on future performance,
but including any Adjusted Term SOFR floor or similar floor that is higher than the then applicable Adjusted Term SOFR) that is
less than the interest rate for or weighted average yield (as determined prior to such prepayment by the Administrative Agent
on the same basis) of the Incremental B-2021 Term Loans, including as may be effected through any amendment to this Agreement
relating to the interest rate for, or weighted average yield of, the Incremental B-2021 Term Loans.
“Required
Lenders”: Lenders the sum of whose outstanding Individual Lender Exposures represent at least a majority of the sum
of the aggregate amount of all Commitments (or, if such Commitments have terminated or expired, the aggregate amount then outstanding
of Loans made pursuant to such Commitments) and outstanding Loans of Non-Defaulting Lenders.
“Requirement
of Law”: as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents
of such Person, and any law, statute, ordinance, code, decree, treaty, rule or regulation or determination of an arbitrator or
a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its material property
or to which such Person or any of its material property is subject, including laws, ordinances and regulations pertaining to zoning,
occupancy and subdivision of real properties; provided that the foregoing shall not apply to any nonbinding recommendation
of any Governmental Authority.
“Responsible
Officer”: as to any Person, any of the following officers of such Person: (a) the chief executive officer or
the president of such Person and, with respect to financial matters, the chief financial officer, the treasurer or the controller
of such Person; (b) any vice president of such Person or, with respect to financial matters, any assistant treasurer or
assistant controller of such Person, who has been designated in writing to the Administrative Agent as a Responsible Officer by
such chief executive officer or president of such Person or, with respect to financial matters, such chief financial officer of
such Person; (c) with respect to subsection 6.7 and without limiting the foregoing, the general counsel of such Person;
(d) with respect to ERISA matters, the senior vice president - human resources (or substantial equivalent) of such Person;
and (e) any other individual designated as a “Responsible Officer” for the purposes of this Agreement by the
Board of Directors or equivalent body of such Person.
“Restatement
Effective Date”: June 27, 2016.
“Restricted
Payment”: as defined in subsection 7.5(a).
“Restricted
Payment Transaction”: any Restricted Payment permitted pursuant to subsection 7.5, any Permitted Payment, any Permitted
Investment, or any transaction specifically excluded from the definition of the term “Restricted Payment” (including
pursuant to the exception contained in clause (i) of such definition and the parenthetical exclusions contained in clauses (ii)
and (iii) of such definition).
“Restricted
Subsidiary”: any Subsidiary of the Borrower other than an Unrestricted Subsidiary.
“Rollover
Indebtedness”: Indebtedness of a Loan Party issued to any Lender in lieu of all or part of such Lender’s pro rata
portion of any repayment of Term Loans made pursuant to subsection 3.4(a); so long as (other than in connection with a refinancing
in full of the applicable Tranche of Term Loans) such Indebtedness (1) is Incurred in an aggregate principal amount (or
if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of (x) the aggregate
principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness
being refinanced, plus (y) fees, underwriting discounts, premiums and other costs and expenses Incurred in connection
with such Rollover Indebtedness and (2) would not have a weighted average life to maturity earlier than the weighted average
life to maturity of the Term Loans being repaid.
“RS
Funding”: RS Funding Inc., a Nevada corporation.
“S&P”:
Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc., and its successors.
“Sale”:
as defined in the definition of “Consolidated Coverage Ratio.”
“Sale
and Leaseback Transaction”: any arrangement with any Person providing for the leasing by the Borrower or any of its
Subsidiaries of real or personal property that has been or is to be sold or transferred by the Borrower or any such Subsidiary
to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary.
“SEC”:
the United States Securities and Exchange Commission.
“Second
Amendment”: the Second Amendment, dated as of June 27, 2016, among the Administrative Agent, the Collateral Agent, the
Borrower and the lenders party thereto.
“Section
2.6 Additional Amendment”: as defined in subsection 2.6(c).
“Secured
Parties”: as defined in the Guarantee and Collateral Agreement.
“Secured
Party Representative”: as defined in the Intercreditor Agreement.
“Securities
Act”: the United States Securities Act of 1933, as amended from time to time.
“Security
Documents”: the collective reference to the Guarantee and Collateral Agreement and all other similar security documents
hereafter delivered to the Collateral Agent granting a Lien on any asset or assets of any Person to secure the obligations and
liabilities of the Loan Parties hereunder and/or under any of the other Loan Documents or to secure any guarantee of any such
obligations and liabilities, including any security documents executed and delivered or caused to be delivered to the Collateral
Agent pursuant to subsection 6.9(a) or 6.9(b), in each case, as amended, supplemented, waived or otherwise modified from time
to time.
“Senior
Credit Facilities”: collectively, the Term Loan Facility and the ABL Facility.
“Senior
Notes”: the 5.875% Senior Notes due 2024, of the Borrower, as the same may be amended, supplemented, waived or otherwise
modified from time to time.
“Senior
Notes Indenture”: the Indenture, dated as of the Restatement Effective Date, by and among the Borrower, the subsidiary
guarantors from time to time party thereto and Wilmington Trust, National Association, as trustee, governing the Senior Notes,
as the same may be amended, supplemented, waived or otherwise modified from time to time.
“Set”:
the collective reference to Term SOFR Loans of a single Tranche, the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).
“Settlement
Service”: as defined in subsection 10.6(b).
“Seventh
Amendment”: the Seventh Amendment, dated as of the Seventh Amendment Effective Date, among the Administrative Agent,
the Collateral Agent, the Borrower and the Lenders party thereto.
“Seventh
Amendment Effective Date”: November 26, 2019.
“Single
Employer Plan”: any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan.
“Sixth
Amendment”: the Sixth Amendment, dated as of the Sixth Amendment Effective Date, among the Administrative Agent, the
Borrower and each Incremental B-2019 Term Lender.
“Sixth
Amendment Acquisition”: as defined in the Sixth Amendment.
“Sixth
Amendment Acquisition Agreement”: as defined in the Sixth Amendment.
“Sixth
Amendment Effective Date”: September 13, 2019.
“Sixth
Amendment Refinancing”: as defined in the definition of “Sixth Amendment Transactions.”
“Sixth
Amendment Transaction Costs”: as defined in the definition of “Sixth Amendment Transactions.”
“Sixth
Amendment Transactions”: the Sixth Amendment Acquisition, together with each of the following transactions consummated
or to be consummated in connection therewith: (a) the Borrower obtaining the Incremental B-2019 Term Loans; (b) if applicable,
the other transactions described in the Sixth Amendment Acquisition Agreement; (c) the repayment (or the giving of notice for
the repayment thereof) of certain Indebtedness of the entities acquired directly or indirectly by the Borrower in the Sixth Amendment
Acquisition as provided in Section 2.04(d) of the Sixth Amendment Acquisition Agreement (the “Sixth Amendment Refinancing”);
and (d) the payment of fees, costs and expenses incurred in connection with the transactions described in the foregoing provisions
of this definition (the “Sixth Amendment Transactions Costs”).
“SOFR”:
a rate per annum equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR
Administrator”: the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing
rate).
“Solicited
Discount Proration”: as defined in subsection 3.4(i).
“Solicited
Discounted Prepayment Amount”: as defined in subsection 3.4(i).
“Solicited
Discounted Prepayment Notice”: an irrevocable written notice of a Borrower Solicitation of Discounted Prepayment Offers
made pursuant to subsection 3.4(i)(iv) substantially in the form of Exhibit M.
“Solicited
Discounted Prepayment Offer”: the irrevocable written offer by each Lender, substantially in the form of Exhibit
N, submitted following the Administrative Agent’s receipt of a Solicited Discounted Prepayment Notice.
“Solicited
Discounted Prepayment Response Date”: as defined in subsection 3.4(i).
“Solvent”
and “Solvency”: with respect to the Borrower and its Subsidiaries on a consolidated basis after giving effect
to the Transactions on the Restatement Effective Date means (i) the Fair Value and Present Fair Salable Value of the assets
of the Borrower and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (ii)
the Borrower and its Subsidiaries taken as a whole do not have Unreasonably Small Capital; and (iii) the Borrower and its
Subsidiaries taken as a whole will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature
(all capitalized terms used in this definition (other than “Borrower”, “Restatement Effective Date”, “Subsidiary”
and “Transactions”, which have the meanings set forth in this Agreement) shall have the meaning assigned to such terms
in the form of solvency certificate attached hereto as Exhibit P).
“Special
Purpose Entity”: (x) any Special Purpose Subsidiary or (y) any other Person that is engaged in the business
of (i) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial
Code as in effect in any jurisdiction from time to time), other accounts and/or other receivables, and/or related assets and/or
(ii) acquiring, selling, leasing, financing or refinancing Real Property and/or related rights (including under leases
and insurance policies) and/or assets (including managing, exercising and disposing of any such rights and/or assets) and/or (iii)
financing or refinancing in respect of Capital Stock of any Special Purpose Subsidiary.
“Special
Purpose Financing”: any financing or refinancing of assets consisting of or including Receivables and/or Real Property
of the Borrower or any Restricted Subsidiary that have been transferred to a Special Purpose Entity or made subject to a Lien
in a Financing Disposition (including any financing or refinancing in respect of Capital Stock of a Special Purpose Subsidiary
held by another Special Purpose Subsidiary).
“Special
Purpose Financing Expense”: for any period, (a) the aggregate interest expense for such period on any Indebtedness
of any Special Purpose Subsidiary that is a Restricted Subsidiary, which Indebtedness is not recourse to the Borrower or any Restricted
Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), and (b)
Special Purpose Financing Fees.
“Special
Purpose Financing Fees”: distributions or payments made directly or by means of discounts with respect to any participation
interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection
with, any Special Purpose Financing.
“Special
Purpose Financing Undertakings”: representations, warranties, covenants, indemnities, guarantees of performance and
(subject to clause (y) of the proviso below) other agreements and undertakings entered into or provided by the Borrower or any
of its Restricted Subsidiaries that the Borrower determines in good faith (which determination shall be conclusive) are customary
or otherwise necessary or advisable in connection with a Special Purpose Financing or a Financing Disposition; provided
that (x) it is understood that Special Purpose Financing Undertakings may consist of or include (i) reimbursement
and other obligations in respect of notes, letters of credit, surety bonds and similar instruments provided for credit enhancement
purposes, (ii) Hedging Obligations, or other obligations relating to Interest Rate Agreements, Currency Agreements or Commodities
Agreements entered into by the Borrower or any Restricted Subsidiary, in respect of any Special Purpose Financing or Financing
Disposition or (iii) any Guarantee in respect of customary recourse obligations (as determined in good faith by the Borrower,
which determination shall be conclusive) in connection with any collateralized mortgage backed securitization or any other Special
Purpose Financing or Financing Disposition in respect of Real Property, including in respect of Liabilities in the event of any
involuntary case commenced with the collusion of any Special Purpose Subsidiary or any Affiliate thereof, or any voluntary case
commenced by any Special Purpose Subsidiary, under any applicable Bankruptcy Law, and (y) subject to the preceding clause
(x), any such other agreements and undertakings shall not include any Guarantee of Indebtedness of a Special Purpose Subsidiary
by the Borrower or a Restricted Subsidiary that is not a Special Purpose Subsidiary.
“Special
Purpose Subsidiary”: any Subsidiary of the Borrower that (a) is engaged solely in (x) the business of
(i) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial
Code as in effect in any jurisdiction from time to time) and other accounts and receivables (including any thereof constituting
or evidenced by chattel paper, instruments or general intangibles), all proceeds thereof and all rights (contractual and other),
collateral and other assets relating thereto and/or (ii) acquiring, selling, leasing, financing or refinancing Real Property
and/or related rights (including under leases and insurance policies) and/or assets (including managing, exercising and disposing
of any such rights and/or assets), all proceeds thereof and all rights (contractual and other), collateral and/or other assets
relating thereto, and/or (iii) owning or holding Capital Stock of any Special Purpose Subsidiary and/or engaging in any
financing or refinancing in respect thereof, and (y) any business or activities incidental or related to such business,
and (b) is designated as a “Special Purpose Subsidiary” by the Borrower.
“Specified
Discount”: as defined in subsection 3.4(i)(ii).
“Specified
Discount Prepayment Amount”: as defined in subsection 3.4(i).
“Specified
Discount Prepayment Notice”: an irrevocable written notice of the Borrower of Discounted Term Loan Prepayment made pursuant
to subsection 3.4(i)(ii) substantially in the form of Exhibit I.
“Specified
Discount Prepayment Response”: the written response by each Lender, substantially in the form of Exhibit J, to
a Specified Discount Prepayment Notice.
“Specified
Discount Prepayment Response Date”: as defined in subsection 3.4(i).
“Specified
Discount Proration”: as defined in subsection 3.4(i).
“Specified
Existing Tranche”: as defined in subsection 2.6(a).
“Specified
Refinancing Amendment”: an amendment to this Agreement effecting the incurrence of Specified Refinancing Commitments
in accordance with subsection 2.8.
“Specified
Refinancing Indebtedness”: Indebtedness incurred by the Borrower pursuant to and in accordance with subsection 2.8.
“Specified
Refinancing Lenders”: as defined in subsection 2.8(b).
“Specified
Refinancing Loans”: as defined in subsection 2.8(a).
“Specified
Refinancing Revolving Commitment”: as defined in subsection 2.8(a).
“Specified
Refinancing Revolving Loans”: as defined in subsection 2.8(a).
“Specified
Refinancing Term Loan Commitment”: as defined in subsection 2.8(a).
“Specified
Refinancing Term Loans”: as defined in subsection 2.8(a).
“Specified
Refinancing Tranche”: Specified Refinancing Commitments with the same terms and conditions made on the same day and
any Supplemental Term Loan Commitments or Supplemental Revolving Commitments and Loans in respect thereof, as applicable, added
to such Tranche pursuant to subsection 2.6.
“Sponsors”:
CD&R and KKR.
“Stated
Maturity”: with respect to any Indebtedness, the date specified in such Indebtedness as the fixed date on which the
payment of principal of such Indebtedness is due and payable, including pursuant to any mandatory redemption provision (but excluding
any provision providing for the repurchase or repayment of such Indebtedness at the option of the holder thereof upon the happening
of any contingency).
“Submitted
Amount”: as defined in subsection 3.4(i).
“Submitted
Discount”: as defined in subsection 3.4(i).
“Subordinated
Obligations”: any Indebtedness of the Borrower (whether outstanding on the Restatement Effective Date or thereafter
Incurred) that is expressly subordinated in right of payment to the Obligations hereunder and under the Loan Documents pursuant
to a written agreement.
“Subsidiary”:
of any Person, means any corporation, association, partnership or other business entity of which more than 50.0% of the total
voting power of shares of Capital Stock or other equity interests (including partnership interests) entitled (without regard to
the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by (i) such Person or (ii) one or more Subsidiaries of such Person. Unless otherwise
qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Borrower.
“Subsidiary
Guarantee”: the guarantee of the obligations of the Borrower under the Loan Documents provided pursuant to the Guarantee
and Collateral Agreement.
“Subsidiary
Guarantor”: each Wholly Owned Domestic Subsidiary (other than any Excluded Subsidiary) of the Borrower that executes
and delivers a Subsidiary Guarantee, in each case, unless and until such time as the respective Subsidiary Guarantor ceases to
constitute a Wholly Owned Domestic Subsidiary of the Borrower or is released from all of its obligations under the Subsidiary
Guarantee in accordance with the terms and provisions thereof or hereof.
“Successor
Company”: as defined in subsection 7.3(a).
“Supervisory
Review Process”: as defined in subsection 3.10(c).
“Supplemental
Revolving Commitments”: as defined in subsection 2.5(a).
“Supplemental
Term Loan Commitments”: as defined in subsection 2.5(a).
“Tax
Sharing Agreement”: the Tax Sharing Agreement, dated as of July 3, 2007, between the Borrower and Holding, as amended
and restated, as the same may be further amended, supplemented, waived or otherwise modified from time to time.
“Taxes”:
any and all present or future taxes, levies, imposts, duties, fees, withholdings or charges of a similar nature (including penalties,
interest and other liabilities with respect thereto) that are imposed by any Governmental Authority.
“Temporary
Cash Investments”: any of the following: (i) any investment in (x) direct obligations of the United States
of America, Canada, a member state of the European Union or any country in whose currency funds are being held pending their application
in the making of an investment or capital expenditure by the Borrower or a Restricted Subsidiary in that country or with such
funds, or any agency or instrumentality of any thereof or obligations Guaranteed by the United States of America or a member state
of the European Union or any country in whose currency funds are being held pending their application in the making of an investment
or capital expenditure by the Borrower or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality
of any of the foregoing, or obligations guaranteed by any of the foregoing or (y) direct obligations of any foreign country
recognized by the United States of America rated at least “A” by S&P or “A-1” by Moody’s (or,
in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the
equivalent of such rating by any nationally recognized rating organization); (ii) overnight bank deposits, and investments
in time deposit accounts, certificates of deposit, bankers’ acceptances and money market deposits (or, with respect to foreign
banks, similar instruments) maturing not more than one year after the date of acquisition thereof issued by (x) any bank
or other institutional lender under a Credit Facility or any affiliate thereof or (y) a bank or trust company that is organized
under the laws of the United States of America, any state thereof or any foreign country recognized by the United States of America
having capital and surplus aggregating in excess of $250.0 million (or the foreign currency equivalent thereof) and whose long
term debt is rated at least “A” by S&P or “A-1” by Moody’s (or, in either case, the equivalent
of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by
any nationally recognized rating organization) at the time such Investment is made; (iii) repurchase obligations for underlying
securities or instruments of the types described in clause (i) or (ii) above entered into with a bank meeting the qualifications
described in clause (ii) above; (iv) Investments in commercial paper, maturing not more than 24 months after the date of
acquisition, issued by a Person (other than that of the Borrower or any of its Subsidiaries), with a rating at the time as of
which any Investment therein is made of “P-2” (or higher) according to Moody’s or “A-2” (or higher)
according to S&P (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s
then exists, the equivalent of such rating by any nationally recognized rating organization); (v) Investments in securities
maturing not more than 24 months after the date of acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least “BBB-”
by S&P or “Baa3” by Moody’s (or, in either case, the equivalent of such rating by such organization or,
if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization);
(vi) Indebtedness or Preferred Stock (other than of the Borrower or any of its Subsidiaries) having a rating of “A”
or higher by S&P or “A2” or higher by Moody’s (or, in either case, the equivalent of such rating by such
organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized
rating organization); (vii) investment funds investing 95.0% of their assets in securities of the type described in clauses
(i) through (vi) above (which funds may also hold cash pending investment and/or distribution); (viii) any money market
deposit accounts issued or offered by a domestic commercial bank or a commercial bank organized and located in a country recognized
by the United States of America, in each case, having capital and surplus in excess of $250.0 million (or the foreign currency
equivalent thereof), or investments in money market funds subject to the risk limiting conditions of Rule 2a-7 (or any successor
rule) of the SEC under the Investment Company Act; and (ix) similar investments approved by the Board of Directors in the
ordinary course of business.
“Tenth
Amendment Effective Date”: June 1, 2023.
“Term
Loan”: each Initial Term Loan, Incremental Term Loan (including each Incremental B-2019 Term Loan and Incremental B-2021
Term Loan), Extended Term Loan or Specified Refinancing Term Loan, as the context requires; collectively, the “Term Loans”.
“Term
Loan Commitment”: as to any Lender, its Initial Term Loan Commitments, its Incremental Commitments (including each Incremental
B-2019 Term Commitment and Incremental B-2021 Term Commitment)”, Supplemental Revolving Commitments, Supplemental Term Loan
Commitments, and Specified Refinancing Commitments (collectively, as to all the Term Loan Lenders at the time of determination,
the “Term Loan Commitments”).
“Term
Loan Facility”: the collective reference to this Agreement, any Loan Documents, any notes, any guarantee and collateral
agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements,
security agreements and collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection
with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time,
or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or
in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under this
Agreement or one or more other credit agreements, indentures or financing agreements or otherwise), except to the extent such
agreement, instrument or document expressly provides that it is not intended to be and is not a Term Loan Facility hereunder.
Without limiting the generality of the foregoing, the term “Term Loan Facility” shall include any agreement (i)
changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the
Borrower as additional borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder
or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
“Term
Loan Facility Obligations”: obligations of the Borrower and the other Loan Parties from time to time arising under or
in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest (including interest
accruing during (or that would accrue but for) the pendency of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise and (ii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Borrower and the other Loan Parties under this Agreement and the other Loan Documents.
“Term
Loan Lender”: any Lender at the time of determination having a Term Loan Commitment hereunder and/or a Term Loan outstanding
hereunder; and all such Lenders collectively the “Term Loan Lenders.”
“Term
Loan Note”: as defined in subsection 2.2(a); collectively, the “Term Loan Notes.”
“Term
Loan Percentage”: as to any Term Loan Lender at any time, the percentage which (a) such Lender’s Term Loans
then outstanding constitutes of (b) the sum of all of the Term Loans then outstanding.
“Term
SOFR”:
(a)
(a) for
any calculation with respect to a Term SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest
Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities
Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided,
however, that, if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day, the Term SOFR
Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator, 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)
(b) for
any calculation with respect to an ABR Loan 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, 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”: a percentage equal to 0.11448% per annum for an Interest Period of one-month’s duration, 0.26161%
per annum for an Interest Period of three-months’ duration, and 0.42826% per annum for an Interest Period of six-months’
duration.
“Term
SOFR Administrator”: CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR
Reference Rate selected by the Administrative Agent in its reasonable discretion).
“Term
SOFR Loans”: Loans the rate of interest applicable to which is based upon Adjusted Term SOFR (other than pursuant to
clause (c) of the definition of “ABR”).
“Term
SOFR Reference Rate”: the forward-looking term rate based on SOFR.
“Third
Amendment”: the Third Amendment, dated as of the Third Amendment Effective Date, among the Administrative Agent, the
Collateral Agent, the Borrower and the Lenders party thereto.
“Third
Amendment Effective Date”: February 17, 2017.
“Total
Credit Percentage”: as to any Lender at any time, the percentage of the aggregate Commitments and outstanding Term Loans
then constituted by such Lender’s Commitment and outstanding Term Loans. In making determinations pursuant to the preceding
sentence, the dollar equivalent of all amounts expressed in currencies other than Dollars shall be utilized.
“Trade
Payables”: with respect to any Person, any accounts payable or any indebtedness or monetary obligation to trade creditors
created, assumed or guaranteed by such Person arising in the ordinary course of business in connection with the acquisition of
goods or services.
“Tranche”:
(i) with respect to Term Loans or commitments, refers to whether such Term Loans or commitments are (1) Initial
Term Loans or Initial Term Loan Commitments, (2) Incremental Term Loans or Incremental Term Loan Commitments with the same
terms and conditions made on the same day and any Supplemental Term Loans added to such Tranche pursuant to subsection 2.5, (3)
Extended Term Loans (of the same Extension Series) or (4) Specified Refinancing Term Loans or Specified Refinancing Term
Loan Commitments with the same terms and conditions made on the same day and any Supplemental Term Loans added to such Tranche
pursuant to subsection 2.5 and (ii) with respect to revolving loans or commitments, refers to whether such revolving loans
or commitments are (1) Incremental Revolving Commitments or Incremental Revolving Loans with the same terms and conditions
made on the same day and any Supplemental Revolving Commitments and Loans in respect thereof added to such Tranche pursuant to
subsection 2.5, (2) revolving loans or extended revolving commitments of the same Extension Series or (3) Specified
Refinancing Revolving Loans or Specified Refinancing Revolving Commitments with the same terms and conditions made on the same
day any Supplemental Revolving Commitments and Loans in respect thereof added to such Tranche pursuant to subsection 2.5. As of
the Ninth Amendment Effective Date there are two Tranches of Term Loans hereunder, namely (a) Incremental B-2019 Term Loans and
(b) Incremental B-2021 Term Loans.
“Transactions”:
collectively, any or all of the following: (i) the entry into this Agreement and the Incurrence of Indebtedness hereunder
by one or more of the Borrower and its Subsidiaries; (ii) the issuance and sale by the Borrower of the Senior Notes and
the entry into the Senior Notes Indenture; (iii) the IPO; (iv) the refinancing in full of the outstanding principal
amount of all term loans under the Original Term Loan Credit Agreement; (iv) the redemption, in whole or in part, of the
2011 Senior Notes; (v) the refinancing of certain other existing Indebtedness of the Borrower, including the refinancing
or repayment, in whole or in part, of the CMBS Facility; and (vi) all other transactions relating to any of the foregoing
(including payment of fees and expenses related to any of the foregoing).
“Transferee”:
any Participant or Assignee.
“Transformative
Acquisition”: any acquisition by the Borrower or any Restricted Subsidiary that is either (a) not permitted by
the terms of this Agreement immediately prior to the consummation of such acquisition or (b) if permitted by the terms
of this Agreement immediately prior to the consummation of such acquisition, would not provide the Borrower and its Restricted
Subsidiaries with adequate flexibility under this Agreement for the continuation or expansion of their combined operations following
such consummation, as determined by the Borrower acting in good faith.
“Treasury
Capital Stock”: as defined in subsection 7.5(b)(i).
“Type”:
the type of Loan determined based on the interest option applicable thereto, with there being two Types of Loans hereunder, namely
ABR Loans and Term SOFR Loans.
“UCC”:
the Uniform Commercial Code as in effect in the State of New York from time to time.
“U.S.
Government Securities Business Day”: 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.
“U.S.
Tax Compliance Certificate”: as defined in subsection 3.11(b).
“Underfunding”:
the excess of the present value of all accrued benefits under a Plan (based on those assumptions used to fund such Plan), determined
as of the most recent annual valuation date, over the value of the assets of such Plan allocable to such accrued benefits.
“Unrestricted
Subsidiary”: (i) any Subsidiary of the Borrower that at the time of determination is an Unrestricted Subsidiary,
as designated by the Board of Directors in the manner provided below, and (ii) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Borrower (including any newly acquired or newly formed Subsidiary of
the Borrower) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness
of, or owns or holds any Lien on any property of, the Borrower or any other Restricted Subsidiary of the Borrower that is not
a Subsidiary of the Subsidiary to be so designated; provided that (A) such designation was made at or prior
to the Restatement Effective Date, or (B) the Subsidiary to be so designated has total consolidated assets of $1,000 or
less or (C) if such Subsidiary has consolidated assets greater than $1,000, then such designation would be permitted under
subsection 7.5. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that immediately after giving effect to such designation (x) the Borrower could Incur at least $1.00 of additional
Indebtedness under subsection 7.1(a) or (y) the Consolidated Coverage Ratio would be greater than it was immediately prior
to giving effect to such designation or (z) such Subsidiary shall be a Special Purpose Subsidiary with no Indebtedness
outstanding other than Indebtedness that can be Incurred (and upon such designation shall be deemed to be Incurred and outstanding)
pursuant to subsection 7.1(b). Any such designation by the Board of Directors shall be evidenced to the Administrative Agent by
promptly delivering to the Administrative Agent a copy of the resolution of the Board of Directors giving effect to such designation
and a certificate signed by a Responsible Officer of the Borrower certifying that such designation complied with the foregoing
provisions.
“Voting
Stock”: shares of Capital Stock entitled to vote generally in the election of directors.
“Wholly
Owned Domestic Subsidiary”: as to any Person, any Domestic Subsidiary of such Person that is a Material Restricted Subsidiary
of such Person, and of which such Person owns, directly or indirectly through one or more Wholly Owned Domestic Subsidiaries,
all of the Capital Stock of such Domestic Subsidiary.
“Write-Down
and Conversion Powers”: 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.
1.2
Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes,
any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to the Borrower and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without limitation,” if not expressly followed
by such phrase or the phrase “but not limited to.”
(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(e) For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (i)
“or” is not exclusive; (ii) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP; and (iii) references to sections of, or rules under, the Securities Act shall be deemed to
include substitute, replacement or successor sections or rules adopted by the SEC from time to time.
(f) Any financial ratios required to be maintained pursuant to this Agreement (or required to be satisfied in order for a specific
action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result
up or down to the nearest number (with a rounding-up if there is no nearest number).
(g) In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of determining compliance
with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable,
has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Borrower,
be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date
the definitive agreements for such Limited Condition Transaction are entered into or irrevocable notice of redemption, repurchase,
defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock is given. For the avoidance
of doubt, if the Borrower has exercised its option under the first sentence of this clause (g), and any Default, Event of Default
or specified Event of Default, as applicable, occurs following the date the definitive agreements for the applicable Limited Condition
Transaction were entered into or irrevocable notice of redemption, repurchase, defeasance, satisfaction and discharge or repayment
of Indebtedness, Disqualified Stock or Preferred Stock is given and prior to the consummation of such Limited Condition Transaction,
any such Default, Event of Default or specified Event of Default, as applicable, shall be deemed to not have occurred or be continuing
for purposes of determining whether any action being taken in connection with such Limited Condition Transaction is permitted
hereunder.
(h) In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio,
the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Tangible Assets);
in
each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited
Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted
hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into or
irrevocable notice of redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified
Stock or Preferred Stock is given, as applicable (the “LCT Test Date”), and if, after giving pro forma effect
to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any Incurrence
or Discharge of Indebtedness and the use of proceeds of such Incurrence) as if they had occurred at the beginning of the most
recent four consecutive fiscal quarters ending prior to the LCT Test Date for which consolidated financial statements of the Borrower
are available, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratio, basket or
amount, such ratio, basket or amount shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has
made an LCT Election and any of the ratios, baskets or amounts for which compliance was determined or tested as of the LCT Test
Date are exceeded as a result of fluctuations in any such ratio, basket or amount, including due to fluctuations in Consolidated
EBITDA or Consolidated Tangible Assets of the Borrower or the Person subject to such Limited Condition Transaction or any applicable
currency exchange rate, at or prior to the consummation of the relevant transaction or action, such baskets, ratios or amounts
will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited
Condition Transaction, then in connection with any subsequent calculation of any ratio, basket or amount with respect to the Incurrence
of Indebtedness or Liens, or the making of Restricted Payments, Asset Dispositions, mergers, the conveyance, lease or other transfer
of all or substantially all of the assets of the Borrower or the designation of an Unrestricted Subsidiary on or following the
relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the
definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition
Transaction, any such ratio, basket or amount shall be calculated on a pro forma basis assuming such Limited Condition Transaction
and other transactions in connection therewith (including any Incurrence or Discharge of Indebtedness and the use of proceeds
thereof) have been consummated.
1.3 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware
law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of
any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred
from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed
to have been organized on the first date of its existence by the holders of its equity interests at such time.
1.4 Rates.
The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect
to, (a) the continuation of, administration of, submission of, calculation of or any other matter related to ABR, the Term
SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the
definition thereof, or any alternative, successor or replacement rate thereto, including whether the composition or
characteristics of any such alternative, successor or replacement rate will be similar to, or produce the same value or
economic equivalence of, or have the same volume or liquidity as, ABR, the Term SOFR Reference Rate, Adjusted Term SOFR, or
Term SOFR prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any technical,
administrative or operational changes (including changes to the definition of “ABR,” the definition of
“Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of
“Interest Period” or any similar or analogous definition, 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 subsection 3.7(b) and other technical, administrative or operational
matters) made in connection with the adoption and implementation of any such rate pursuant to subsection 3.7(b) or to permit
the use and administration thereof. The Administrative Agent and its affiliates or other related entities may engage in
transactions that affect the calculation of ABR, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, any
alternative, successor or replacement rate or any relevant adjustments thereto, in each case, in a manner adverse to the
Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain ABR,
the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, or any component definition thereof or rates referred to in the
definition thereof, or any alternative, successor or replacement rate, in each case pursuant to the terms of this Agreement,
and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including
direct or indirect, special, punitive, incidental or consequential
damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or
calculation of any such rate (or component thereof) provided by any such information source or service.
SECTION
2 AMOUNT AND TERMS OF COMMITMENTS.
2.1 Term Loans.
(a) Initial Term Loans. Subject to the terms and conditions hereof, each Initial Term Loan Lender severally agrees to make
in a single draw on the Restatement Effective Date, one or more term loans in Dollars to the Borrower in an aggregate principal
amount not to exceed the amount set forth opposite such Initial Term Loan Lender’s name on Schedule A hereto under the heading
“Term Loan Commitment,” as such amount may be adjusted or reduced pursuant to the terms hereof, which term loans may
be made in cash or, if agreed by the Borrower, by exchange of all or any portion of such Initial Term Loan Lender’s Term
Loans (as defined under the Original Term Loan Credit Agreement) outstanding immediately prior to the Restatement Effective Date
into Initial Term Loans pursuant to the Second Amendment, or a combination thereof.
(b) Incremental B-2019 Term Loans. Subject to the terms and conditions hereof, each Incremental B-2019 Term Loan Lender severally
agrees to make in a single draw on the Sixth Amendment Effective Date, one or more term loans in Dollars to the Borrower in an
aggregate principal amount not to exceed the amount set forth opposite such Incremental B-2019 Term Loan Lender’s name on
Schedule A hereto under the heading “Incremental B-2019 Term Loan Commitments,” as such amount may be adjusted or
reduced pursuant to the terms hereof.
(c) Incremental B-2021 Term Loans. Subject to the terms and conditions hereof, each Incremental B-2021 Term Loan Lender severally
agrees to make in a single draw on the NinthEleventh
Amendment Effective Date, one or more term loans in Dollars to the Borrower in an aggregate principal amount not
to exceed the amount set forth opposite such Incremental B-2021 Term Loan Lender’s name on Schedule 1I
to the NinthEleventh
Amendment (or if such Incremental B-2021 Term Loan Lender is a Cashless Term Lender (as defined
in the Eleventh Amendment), an amount not to exceed 100% of the outstanding principal amount of the Existing Term Loans (as defined
in the Eleventh Amendment) held by such Incremental B-2021 Term Loan Lender (or such lesser amount allocated to such Incremental
B-2021 Term Loan Lender by the Administrative Agent) immediately prior to the Eleventh Amendment Effective Date),
as such amount may be adjusted or reduced pursuant to the terms hereof.
(d) Term Loans. The Term Loans:
(i) except as hereinafter provided, shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR
Loans or Term SOFR Loans; and
(ii) shall be made by each Term Loan Lender in an aggregate principal amount which does not exceed the Term Loan Commitment of such
Term Loan Lender.
Once
repaid, Term Loans incurred hereunder may not be reborrowed.
2.2 Term Loan Notes.
(a) Term
Loan Notes. The Borrower agrees that, upon the request to the Administrative Agent by any Term Loan Lender made on or
prior to the Restatement Effective Date with respect to its Term Loan made on such date, or in connection with any subsequent
assignment pursuant to subsection 10.6(b), in order to evidence such Term Loan, the Borrower will execute and deliver to such
Term Loan Lender a promissory note substantially in the form of Exhibit A (each, as amended, supplemented, replaced or
otherwise modified from time to time, a “Term Loan Note”), with appropriate insertions therein as to
payee, date and principal amount, payable to such Term Loan Lender and in a principal amount equal to the unpaid principal
amount of the applicable Term Loans made (or acquired by assignment pursuant to subsection 10.6(b)) by such Term Loan Lender
to the Borrower. Each Term Loan Note shall be dated the Restatement Effective Date and shall be payable as provided in
subsection 2.2(b) and provide for the payment of interest in accordance with subsection 3.1.
(b) Initial Term Loan Amortization. The aggregate Initial Term Loans of all the Term Loan Lenders shall be payable in consecutive
quarterly installments beginning September 30, 2016 up to and including the Initial Term Loan Maturity Date (subject to reduction
as provided in subsection 3.4), on the dates set forth below and in the principal amounts, equal to the respective amounts set
forth below (together with all accrued interest thereon) opposite the applicable installment dates (or, if less, the aggregate
amount of such Term Loans then outstanding):
Date |
Amount |
Each
March 31, June 30, September 30 and December 31 ending prior to the Initial Term Loan Maturity Date |
0.25%
of the aggregate initial principal amount of the Initial Term Loans on the Restatement Effective Date |
Initial
Term Loan Maturity Date |
all
unpaid aggregate principal amounts of any outstanding Initial Term Loans |
(c) Incremental B-2019 Term Loan Amortization. The aggregate Incremental B-2019 Term Loans of all the Incremental B-2019 Term
Lenders shall be repaid by the Borrower in consecutive quarterly installments beginning on December 31, 2019 (subject to reduction
as provided in subsection 3.4), on the dates set forth below and for each such date in the principal amount set forth below opposite
such date (together with all accrued interest thereon) (or, if less, the aggregate amount of such Term Loans then outstanding):
Date |
Principal
Amount |
Each
March 31, June 30, September 30 and December 31 ending prior to the Incremental B-2019 Term Loan Maturity Date |
0.25%
of the aggregate initial principal amount of the Incremental B-2019 Term Loans on the Sixth Amendment Effective Date
|
Incremental
B-2019 Term Loan Maturity Date |
all
unpaid aggregate principal amounts of any outstanding Incremental B-2019 Term Loans
|
(d) Incremental B-2021 Term Loan Amortization. TheRepayment. On the Incremental B-2021 Term Loan Maturity Date the Borrower shall repay the then outstanding aggregate principal
amount of Incremental B-2021 Term Loans of all the Incremental B-2021 Term Lenders shall
be repaid by the Borrower in consecutive quarterly installments beginning on March 31, 2022 (subject to reduction as provided
in subsection 3.4), on the dates set forth below and for each such date in the principal amount set forth below opposite such
date (together with all accrued interest thereon) (or, if less, the aggregate amount of such Term Loans then outstanding):.
Date |
Principal
Amount |
Each
March 31, June 30, September 30 and December 31 ending prior to the Incremental B-2021 Term
Loan Maturity Date |
0.25%
of the aggregate initial principal amount of the Incremental B-2021 Term
Loans on the Ninth Amendment
Effective Date
|
Incremental
B-2021 Term
Loan Maturity Date |
all
unpaid aggregate principal amounts of any outstanding Incremental B-2021 Term
Loans |
2.3
Procedure for
Initial Term Loan Borrowing. The Borrower
shall have given the Administrative Agent notice prior to 9:30 A.M. (or such shorter period as may be agreed to by the Administrative
Agent in its reasonable discretion), New York City time (which notice shall be irrevocable after funding) on the Restatement Effective
Date specifying the amount of the Initial Term Loans to be borrowed on the Restatement Effective Date. Upon receipt of such notice
the Administrative Agent shall promptly notify each applicable Lender thereof. Each Lender having an Initial Term Loan Commitment
will make the amount of its pro rata share of the Initial Term Loan Commitments available, in each case for the account of the
Borrower at the office of the Administrative Agent specified in subsection 10.2 prior to 12:00 Noon, New York City time (or, if
the time period for the Borrower’s delivery of notice was extended, such later time as agreed to by the Borrower and the
Administrative Agent in its reasonable discretion, but in no event less than one hour following notice), on the Restatement Effective
Date in funds immediately available to the Administrative Agent (except as otherwise agreed by Borrower pursuant to subsection
2.1(a)(iii)). The Administrative Agent shall on such date credit the account of the Borrower on the books of the Administrative
Agent with the aggregate of the amounts made available to the Administrative Agent by the Lenders and in like funds as received
by the Administrative Agent.
2.3 Record of Loans.
(a) Lender Accounts. Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness
of the Borrower to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under this Agreement.
(b) Register. The Administrative Agent shall maintain the Register pursuant to subsection 10.6(b), and a subaccount therein
for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder, the Type thereof and each Interest
Period, if any, applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder, and (iii) both the amount of any sum received by the Administrative Agent hereunder
from the Borrower and each Lender’s share thereof.
(c) Evidence. The entries made in the Register and the accounts of each Lender maintained pursuant to subsection 2.4(b) shall,
to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower
therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrower
to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.
2.4 Incremental Facility.
(a) So long as no Event of Default under subsection 8(a) or 8(f) exists or would arise therefrom, the Borrower shall have the right,
at any time and from time to time after the Restatement Effective Date, (i) to request new term loan commitments under
one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”),
(ii) to increase any then-existing Tranche of Term Loans by requesting new term loan commitments to be added to such existing
Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under
one or more new revolving facilities to be included in this Agreement, which new revolving facilities may include one or more
subfacilities for letters of credit or swing line loans (the “Incremental Revolving Commitments”), and (iv)
to increase any then existing Tranche of revolving commitments by requesting new revolving loan commitments be added to such existing
Tranche of revolving commitments (the “Supplemental Revolving Commitments,” and together with the Incremental
Term Loan Commitments, Supplemental Term Loan Commitments and Incremental Revolving Commitments, the “Incremental Commitments”),
provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this subsection
2.5 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence
of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness, including to refinance other
Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i)(II) or the definition
of “Maximum Incremental Facilities Amount” and (ii) if any portion of an Incremental Commitment is to be incurred
in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered
a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause. Any loans made
in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments)
shall be made by creating a new Tranche.
(b) Each request from the Borrower pursuant to this subsection 2.5 shall set forth the requested amount and proposed terms of the
relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by
any other bank or other financial institution (any such bank or other financial institution, an “Additional Incremental
Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments,
the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already
a Lender hereunder or any affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent
not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender
that is an Affiliated Lender shall be subject to the provisions of subsections 10.6(h) and 10.6(i), mutatis mutandis, to
the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant
to a supplement specifying the Tranche of Term Loans or revolving commitments to be increased, executed by the Borrower and each
increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”)
or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder
Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register.
An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments (including
to subsection 2.2(b)) to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative
Agent, to effect the provisions of this subsection 2.5. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental
Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term
Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be revolving
commitments hereunder, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments
under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and,
as appropriate, the other Loan Documents, executed by the Borrower and each applicable Incremental Lender. An Incremental Commitment
Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate,
in the opinion of the Borrower and the Administrative Agent, (x) to effect the provisions of this subsection 2.5 and/or (y) so
long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term
Loans with any tranche of then outstanding Term Loans, provided, however, that (i) (A)
the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and
will be secured by the same Collateral securing the Term Loan Facility Obligations or (at the Borrower’s option) will be
unsecured, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”)
shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations
and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans
to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans and (II) so long as
any Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2021 Term Loans are outstanding, any mandatory prepayment
from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person
the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment
Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery
Event, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event are required to be applied to repay the
Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2021 Term Loans pursuant to subsection 3.4(c), on more than
a ratable basis with the Initial Term Loans, Incremental B-2019 Term Loans or Incremental B-2021 Term Loans (after giving effect
to any amendment in accordance with subsection 10.1(d)(v)); (ii) no Lender will be required to provide any such Incremental
Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term
Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining
weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter
weighted average life to maturity for customary bridge financings, which, subject to customary conditions (as determined by the
Borrower in good faith), would either be automatically converted into or required to be exchanged for permanent financing which
does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity
Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable); (iv) the interest rate
margins and (subject to clause (iii) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments
shall be determined by the Borrower and the applicable Incremental Lenders; (v) such Incremental Commitment Amendment may
provide for (1) the inclusion, as appropriate, of Additional Incremental Lenders in any required vote or action of the
Required Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional
credit facilities, (3) the amendment of the definitions of “Disqualified Stock”, “Junior Capital”
and “Refinancing Indebtedness”, in each case only to extend the maturity date and the weighted average life to maturity
requirements, from the Initial Term Loan Maturity Date and remaining weighted average life to maturity of the Initial Term Loans
to the extended maturity date and the remaining weighted average life to maturity of such Incremental Term Loans, as applicable;
and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect
prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided
that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms
and documentation governing the Initial Term Loans (except to the extent permitted by clause (iii), (iv), (v) or (vi) above),
they shall be reasonably satisfactory to the Borrower and the Administrative Agent.
(e) Notwithstanding any provision of this Agreement to the contrary, for purposes of this Agreement, including the provisions of this
subsection 2.5, (t) after giving effect to the transactions contemplated by the Second Amendment, the Second Incremental Term
Loan Commitments (as defined in the Second Amendment) shall constitute Initial Term Loan Commitments hereunder (and shall not
constitute Incremental Term Loan Commitments or Incremental Commitments hereunder) and the Second Incremental Term Loans (as defined
in the Second Amendment) shall constitute Initial Term Loans hereunder (and shall not constitute Incremental Term Loans or Incremental
Loans hereunder), (u) after giving effect to the transactions contemplated by the Third Amendment, the Additional Repriced Term
Loan Commitments (as defined in the Third Amendment) shall constitute Initial Term Loan Commitments hereunder (and shall not constitute
Incremental Term Loan Commitments or Incremental Commitments hereunder) and the Repriced Term Loans and Additional Repriced Term
Loans (each as defined in the Third Amendment) shall constitute Initial Term Loans hereunder (and shall not constitute Incremental
Term Loans or Incremental Loans hereunder), (v) after giving effect to the transactions contemplated by the Fourth Amendment,
the Additional Repriced Term Loan Commitments (as defined in the Fourth Amendment) shall constitute Initial Term Loan Commitments
hereunder (and shall not constitute Incremental Term Loan Commitments or Incremental Commitments hereunder) and the Repriced Term
Loans and Additional Repriced Term Loans (each as defined in the Fourth Amendment) shall constitute Initial Term Loans hereunder
(and shall not constitute Incremental Term Loans or Incremental Loans hereunder), (w) after giving effect to the transactions
contemplated by the Fifth Amendment, the Additional Repriced Term Loan Commitments (as defined in the Fifth Amendment) shall constitute
Initial Term Loan Commitments hereunder (and shall not constitute Incremental Term Loan Commitments or Incremental Commitments
hereunder) and the Repriced Term Loans and Additional Repriced Term Loans (each as defined in the Fifth Amendment) shall constitute
Initial Term Loans hereunder (and shall not constitute Incremental Term Loans or Incremental Loans hereunder), (x) after giving
effect to the Sixth Amendment Transactions, the Incremental B-2019 Term Commitments shall constitute Incremental B-2019 Term Commitments
hereunder, Incremental Term Loan Commitments and Incremental Commitments hereunder and the Incremental B-2019 Term Loans shall
constitute Incremental B-2019 Term Loans, Incremental Term Loans and Incremental Loans hereunder, (y) after giving effect to the
transactions contemplated by the Seventh Amendment, the Repriced Term Loan Commitments (as defined in the Seventh Amendment) shall
constitute Initial Term Loan Commitments hereunder (and shall not constitute Incremental Term Loan Commitments or Incremental
Commitments hereunder) and the Repriced Term Loans (as defined in the Seventh Amendment) shall constitute Initial Term Loans hereunder
(and shall not constitute Incremental Term Loans or Incremental Loans hereunder) and (z) after giving effect to the transactions
contemplated by the NinthEleventh
Amendment, the Incremental B-2021 Term Commitments shall constitute Incremental B-2021 Term Commitments hereunder, Incremental
Term Loan Commitments and Incremental Commitments hereunder and the Incremental B-2021 Term Loans shall constitute Incremental
B-2021 Term Loans, Incremental Term Loans and Incremental Loans hereunder.
2.5 Extension Amendments.
(a) The Borrower may at any time and from time to time request that all or a portion, including one or more Tranches, of any commitments
or the Loans (including any Extended Loans), each existing at the time of such request (each, an “Existing Tranche”
and the Loans of such Tranche, the “Existing Loans”) be converted to extend the termination date thereof and
the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of any Existing
Tranche (any such Existing Tranche which has been so extended, “Extended Tranche” and the Loans of such Tranche,
the “Extended Loans”) and to provide for other terms consistent with this subsection 2.6. Subject to the provisions
of this subsection 2.6, the Borrower may elect to extend an Existing Tranche by combining the Existing Loans thereunder with existing
Extended Loans, in which case such Existing Loans shall become Extended Loans and shall constitute an Extension Series with such
existing Extended Loans. In order to establish any Extended Tranche, the Borrower shall provide a notice to the Administrative
Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Tranche) (an “Extension
Request”) setting forth the proposed terms of the Extended Tranche to be established, which Extension Request may be
modified, revoked, or revoked and reissued by the Borrower at any time prior to the effectiveness of the Extension Amendment.
The terms of an Extended Tranche to be established pursuant to an Extension Amendment shall be substantially similar to those
applicable to the Existing Tranche from which they are to be extended (the “Specified Existing Tranche”) except
(w) all or any of the final maturity dates of such Extended Tranches may be delayed to later dates than the final maturity
dates of the Specified Existing Tranche, (x) (A) the interest margins with respect to the Extended Tranche may be
higher or lower than the interest margins for the Specified Existing Tranche and/or (B) additional fees may be payable
to the Lenders providing such Extended Tranche in addition to or in lieu of any change in margins contemplated by the preceding
clause (A), (y) the commitment fee, if any, with respect to the Extended Tranche may be higher or lower than the commitment
fee, if any, for the Specified Existing Tranche, in each case to the extent provided in the applicable Extension Amendment, and
(z) amortization with respect to the Extended Term Tranche may be greater or lesser than amortization for the Specified
Existing Tranche, so long as the Extended Term Tranche does not have a weighted average life to maturity shorter than the remaining
weighted average life to maturity of the Specified Existing Tranche; provided that, notwithstanding anything to
the contrary in this subsection 2.6 or otherwise, assignments and participations of Extended Tranches shall be governed by the
same or, at the Borrower’s discretion, more restrictive assignment and participation provisions than the assignment and
participation provisions applicable to Term Loans set forth in subsection 10.6. No Lender shall have any obligation to agree to
have any of its Existing Loans or, if applicable, commitments of any Existing Tranche converted into an Extended Tranche pursuant
to any Extension Request. Any Extended Tranche shall constitute a separate Tranche of Term Loans or revolving commitments, as
applicable, from the Specified Existing Tranches and from any other Existing Tranches (together with any other Extended Tranches
so established on such date).
(b) The Borrower shall provide the applicable Extension Request at least 10 Business Days (or such shorter period as may be agreed
by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Tranche or Existing Tranches are
requested to respond. Any Lender (each, an “Extending Lender”) wishing to have all or a portion of its Specified
Existing Tranche converted into an Extended Tranche shall notify the Administrative Agent (each, an “Extension Election”)
on or prior to the date specified in such Extension Request of the amount of its Specified Existing Tranche that it has elected
to convert into an Extended Tranche. In the event that the aggregate amount of the Specified Existing Tranche subject to Extension
Elections exceeds the amount of Extended Tranches requested pursuant to the Extension Request, the Specified Existing Tranches
subject to Extension Elections shall be converted to Extended Tranches on a pro rata basis based on the amount of Specified Existing
Tranches included in each such Extension Election.
(c) Extended Tranches shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement
(which may include amendments to (i) provisions related to maturity, interest margins, fees or amortization referenced
in subsection 2.6(a) clauses (w) through (z), and (ii) the definitions of “Disqualified Stock”, “Junior
Capital” and “Refinancing Indebtedness” to amend the maturity date and the weighted average life to maturity
requirements, from the applicable Maturity Date and weighted average life to maturity of the Term Loans to the extended maturity
date and the weighted average life to maturity of such Extended Tranche, as applicable, and which, in each case, except to the
extent expressly contemplated by the third to last sentence of this subsection 2.6(c) and notwithstanding anything to the contrary
set forth in subsection 10.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the
Extended Tranches established thereby) executed by the Loan Parties, the Administrative Agent, and the Extending Lenders. No Extension
Amendment shall provide for any Extended Tranche in an aggregate principal amount that is less than $15.0 million. Notwithstanding
anything to the contrary in this Agreement and without limiting the generality or applicability of subsection 10.1 to any Section
2.6 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments other than those
referred to or contemplated above (any such additional amendment, a “Section 2.6 Additional Amendment”) to
this Agreement and the other Loan Documents; provided that such Section 2.6 Additional Amendments do not become
effective prior to the time that such Section 2.6 Additional Amendments have been consented to (including pursuant to consents
applicable to holders of any Extended Tranches provided for in any Extension Amendment) by such of the Lenders, Loan Parties and
other parties (if any) as may be required in order for such Section 2.6 Additional Amendments to become effective in accordance
with subsection 10.1; provided, further, that no Extension Amendment may provide for (a) any
Extended Tranche to be secured by any Collateral or other assets of any Loan Party that does not also secure the Specified Existing
Tranches and (b) with respect to Extended Loans that are Term Loans, so long as any Loans of the Specified Existing Tranche
from which such Extended Loans were converted are outstanding, any mandatory prepayment provisions that do not also apply to such
Specified Existing Tranche on a pro rata basis. It is understood and agreed that each Lender has consented for all purposes requiring
its consent, and shall at the effective time thereof be deemed to consent to each amendment to this Agreement and the other Loan
Documents authorized by this subsection 2.6 and the arrangements described above in connection therewith except that the foregoing
shall not constitute a consent on behalf of any Lender to the terms of any Section 2.6 Additional Amendment. In connection with
any Extension Amendment, at the request of the Administrative Agent or the Extending Lenders, the Borrower shall deliver an opinion
of counsel reasonably acceptable to the Administrative Agent as to the enforceability of such Extension Amendment, this Agreement
as amended thereby, and such of the other Loan Documents (if any) as may be amended thereby.
(d) Notwithstanding anything to the contrary contained in this Agreement, (A) on any date on which any Existing Tranche is
converted to extend the related scheduled maturity date(s) in accordance with clause (a) above (an “Extension Date”),
in the case of the Specified Existing Tranche of each Extending Lender, the aggregate principal amount of such Specified Existing
Tranche shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Tranche so converted by such
Lender on such date, and such Extended Tranches shall be established as a separate Tranche from the Specified Existing Tranche
and (B) if, on any Extension Date, any revolving loans of any Extending Lender are outstanding under the applicable Specified
Tranches, such loans (and any related participations) shall be deemed to be allocated as Extended Loans (and related participations)
and Existing Loans (and related participations) in the same proportion as such Extending Lender’s applicable Specified Existing
Tranches to the applicable Extended Tranches so converted by such Lender on such date; provided that any Extended
Tranche or Extended Loans may, to the extent provided in the applicable Extension Amendment, be designated as part of any Tranche
of Term Loans or Extension Series established on or prior to the date of such Extension Amendment.
(e) If, in connection with any proposed Extension Amendment, any Lender declines to consent to the applicable extension on the terms
and by the deadline set forth in the applicable Extension Request (each such Lender, a “Non-Extending Lender”)
then the Borrower may, on notice to the Administrative Agent and the Non-Extending Lender, (A) replace such Non-Extending
Lender in whole or in part by causing such Lender to (and such Lender shall be obligated to) assign pursuant to subsection 10.6
(with the assignment fee and any other costs and expenses to be paid by the Borrower in such instance) all or any part of its
rights and obligations under this Agreement with respect to the Existing Loans to one or more assignees; provided
that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender; provided,
further, that the applicable assignee shall have agreed to provide Loans and/or a commitment on the terms set forth
in such Extension Amendment; and provided, further, that all obligations of the Borrower owing to
the Non-Extending Lender relating to the Loans and participations so assigned shall be paid in full by the assignee Lender (or,
at the Borrower’s option, by the Borrower) to such Non-Extending Lender concurrently with such Assignment and Acceptance
or (B) prepay the Loans and, at the Borrower’s option, if applicable, terminate the commitments of such Non-Extending
Lender, in whole or in part, subject to subsection 3.12, without premium or penalty. In connection with any such replacement under
this subsection 2.6, if the Non-Extending Lender does not execute and deliver to the Administrative Agent a duly completed Assignment
and Acceptance and/or any other documentation necessary to reflect such replacement by the later of (a) the date on which
the replacement Lender executes and delivers such Assignment and Acceptance and/or such other documentation and (b) the
date as of which all obligations of the Borrower owing to the Non-Extending Lender relating to the Loans and participations so
assigned shall be paid in full by the assignee Lender (or, at the Borrower’s option, by the Borrower) to such Non-Extending
Lender, then such Non-Extending Lender shall be deemed to have executed and delivered such Assignment and Acceptance and/or such
other documentation as of such date and the Borrower shall be entitled (but not obligated) to execute and deliver such Assignment
and Acceptance and/or such other documentation on behalf of such Non-Extending Lender.
(f) Following any Extension Date, with the written consent of the Borrower, any Non-Extending Lender may elect to have all or a portion
of its Existing Loans or commitments, as applicable deemed to be an Extended Loan or commitments, as applicable, under the applicable
Extended Tranche on any date (each date a “Designation Date”) prior to the maturity date of such Extended Tranche;
provided that such Lender shall have provided written notice to the Borrower and the Administrative Agent at least 10 Business
Days prior to such Designation Date (or such shorter period as the Administrative Agent may agree in its reasonable discretion).
Following a Designation Date, the Existing Loans or commitments, as applicable, held by such Lender so elected to be extended
will be deemed to be Extended Loans or commitments, as applicable, of the applicable Extended Tranche, and any Existing Loans
held by such Lender not elected to be extended, if any, shall continue to be “Existing Loans” of the applicable Tranche.
(g) With respect to all Extensions consummated by the Borrower pursuant to this subsection 2.6, (i) such Extensions shall not
constitute optional or mandatory payments or prepayments for purposes of subsection 3.4 and (ii) no Extension Request is
required to be in any minimum amount or any minimum increment, provided that the Borrower may at its election specify
as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to
be determined and specified in the relevant Extension Request in the Borrower’s sole discretion and may be waived by the
Borrower) of Existing Loans of any or all applicable Tranches be extended. The Administrative Agent and the Lenders hereby consent
to the transactions contemplated by this subsection 2.6 (including, for the avoidance of doubt, payment of any interest, fees
or premium in respect of any Extended Loans on such terms as may be set forth in the relevant Extension Request) and hereby waive
the requirements of any provision of this Agreement (including subsections 3.4 and 3.8) or any other Loan Document that may otherwise
prohibit any such Extension or any other transaction contemplated by this subsection 2.6.
2.6 Permitted Debt Exchanges.
(a) Notwithstanding anything to the contrary contained in this Agreement, pursuant to one or more offers (each, a “Permitted
Debt Exchange Offer”) made from time to time by the Borrower to all Lenders (other than any Lender that, if requested
by the Borrower, is unable to certify that it is either a “qualified institutional buyer” (as defined in Rule 144A
under the Securities Act) or an institutional “accredited investor” (as defined in Rule 501 under the Securities Act))
with outstanding Term Loans of a particular Tranche, as selected by the Borrower, the Borrower may from time to time following
the Restatement Effective Date consummate one or more exchanges of Term Loans of such Tranche for Indebtedness in the form of
unsecured notes or loans, or secured notes or loans ranking pari passu with or junior to the Term Loans (such notes or
loans, as applicable, “Permitted Debt Exchange Notes,” and each such exchange a “Permitted Debt Exchange”),
so long as the following conditions are satisfied: (i) the aggregate principal amount (calculated on the face amount thereof)
of Term Loans exchanged shall equal the aggregate principal amount (calculated on the face amount thereof) of Permitted Debt Exchange
Notes issued in exchange for such Term Loans, (ii) the aggregate principal amount (calculated on the face amount thereof)
of all Term Loans exchanged by the Borrower pursuant to any Permitted Debt Exchange shall automatically be cancelled and retired
by the Borrower on the date of the settlement thereof (and, if requested by the Administrative Agent, any applicable exchanging
Lender shall execute and deliver to the Administrative Agent an Assignment and Acceptance, or such other form as may be reasonably
requested by the Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its interest in the
Term Loans being exchanged pursuant to the Permitted Debt Exchange to the Borrower for immediate cancellation), (iii) if
the aggregate principal amount of all Term Loans (calculated on the face amount thereof) tendered by Lenders in respect of the
relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds
the principal amount of the applicable Tranche actually held by it) shall exceed the maximum aggregate principal amount of Term
Loans offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange
Term Loans subject to such Permitted Debt Exchange Offer tendered by such Lenders ratably up to such maximum amount based on the
respective principal amounts so tendered, (iv) each such Permitted Debt Exchange Offer shall be made on a pro rata basis
to the Lenders (other than any Lender that, if requested by the Borrower, is unable to certify that it is either a “qualified
institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor”
(as defined in Rule 501 under the Securities Act)) based on their respective aggregate principal amounts of outstanding Term Loans
of the applicable Tranche, (v) all documentation in respect of such Permitted Debt Exchange shall be consistent with the
foregoing and all written communications generally directed to the Lenders in connection therewith shall be in form and substance
consistent with the foregoing and made in consultation with the Administrative Agent and (vi) any applicable Minimum Exchange
Tender Condition shall be satisfied. Notwithstanding anything to the contrary herein, no Lender shall have any obligation to agree
to have any of its Loans or Commitments exchanged pursuant to any Permitted Debt Exchange Offer.
(b) With respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this subsection 2.7, (i) such Permitted
Debt Exchanges (and the cancellation of the exchanged Term Loans in connection therewith) shall not constitute voluntary or mandatory
payments or prepayments for purposes of subsection 3.4 and (ii) such Permitted Debt Exchange Offer shall be made for not
less than $15.0 million in aggregate principal amount of Term Loans; provided that subject to the foregoing clause
(ii), the Borrower may at its election specify as a condition (a “Minimum Exchange Tender Condition”) to consummating
any such Permitted Debt Exchange that a minimum amount (to be determined and specified in the relevant Permitted Debt Exchange
Offer in the Borrower’s discretion) of Term Loans be tendered.
(c) In connection with each Permitted Debt Exchange, the Borrower shall provide the Administrative Agent at least ten Business Days’
(or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and the Borrower and the Administrative
Agent, acting reasonably, shall mutually agree to such procedures as may be necessary or advisable to accomplish the purposes
of this subsection 2.7 and without conflict with subsection 2.7(d); provided that the terms of any Permitted Debt
Exchange Offer shall provide that the date by which the relevant Lenders are required to indicate their election to participate
in such Permitted Debt Exchange shall be not less than five Business Days following the date on which the Permitted Debt Exchange
Offer is made (or such shorter period as may be agreed to by the Administrative Agent in its reasonable discretion).
(d) The Borrower shall be responsible for compliance with, and hereby agree to comply with, all applicable securities and other laws
in connection with each Permitted Debt Exchange, it being understood and agreed that (x) neither the Administrative Agent
nor any Lender assumes any responsibility in connection with the Borrower’s compliance with such laws in connection with
any Permitted Debt Exchange (other than the Borrower’s reliance on any certificate delivered by a Lender pursuant to subsection
2.7(a) above for which such Lender shall bear sole responsibility) and (y) each Lender shall be solely responsible for
its compliance with any applicable “insider trading” laws and regulations to which such Lender may be subject under
the Exchange Act.
(e) The Borrower shall have the right, by written notice to the Administrative Agent, to modify, revoke and rescind, or revoke and
reissue its offer to make a Permitted Debt Exchange and the notice provided pursuant to subsection 2.7(c) therefor at its discretion
at any time prior to consummation of such Permitted Debt Exchange.
2.7 Specified Refinancing Facilities.
(a) The Borrower may, from time to time, add new term loan commitments under one or more new term loan credit facilities to be included
in this Agreement (the “Specified Refinancing Term Loan Commitments”) and new revolving credit facilities (the
“Specified Refinancing Revolving Commitments”, and, together with the Specified Refinancing Term Loan Facilities,
the “Specified Refinancing Commitments”) to the Facilities to refinance all or any portion of any Tranche of
Loans then outstanding under this Agreement; provided that (i) the Specified Refinancing Commitments will
not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured by the same Collateral
securing the Term Loan Facility Obligations (so long as any such Specified Refinancing Amendments (and related Obligations) are
subject to an Intercreditor Agreement) or (at the Borrower’s option) will be unsecured, (ii) the Specified Refinancing
Term Loan Commitments and any term loans drawn thereunder (the “Specified Refinancing Term Loans”) and Specified
Refinancing Revolving Commitments and revolving loans drawn thereunder (the “Specified Refinancing Revolving Loans”
and, together with the Specified Refinancing Term Loans, the “Specified Refinancing Loans”) shall rank pari
passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations, (iii)
no Specified Refinancing Amendment may provide for any Specified Refinancing Commitments or any Specified Refinancing Loans to
be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loan Facility Obligations, (iv)
the Specified Refinancing Commitments will have such pricing, amortization (subject to clause (vi) below) and optional and mandatory
prepayment terms as may be agreed by the Borrower and the applicable Lenders thereof, (v) the maturity date of any Specified
Refinancing Revolving Commitments shall be no earlier than, and no scheduled mandatory commitment reduction in respect thereof
shall be required prior to, the Maturity Date of the Tranche of Loans being refinanced, (vi) the maturity date and the
weighted average life to maturity of the Specified Refinancing Term Loan Commitments shall be no earlier than or shorter than,
as the case may be, the Maturity Date of the Tranche of Term Loans being refinanced or the remaining weighted average life to
maturity of the Term Loans being refinanced, as applicable (other than an earlier maturity date and/or shorter weighted average
life to maturity for customary bridge financings, which, subject to customary conditions (as determined by the Borrower in good
faith), would either be automatically converted into or required to be exchanged for permanent financing which does not provide
for an earlier maturity date or a shorter weighted average life to maturity than the Maturity Date of the Tranche of Term Loans
being refinanced or the remaining weighted average life to maturity of the Term Loans being refinanced, as applicable), (vii)
the Net Cash Proceeds of such Specified Refinancing Commitments shall be applied, substantially concurrently with the incurrence
thereof, to the pro rata prepayment of outstanding Loans being so refinanced (and, in the case of revolving loans, a corresponding
amount of revolving commitments shall be permanently reduced), in each case pursuant to subsection 3.4; and (viii) the
Specified Refinancing Commitments shall not have a principal or commitment amount greater than the Loans being refinanced plus
the aggregate amount of all fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such
refinancing.
(b) Each request from the Borrower pursuant to this subsection 2.8 shall set forth the requested amount and proposed terms of the
relevant Specified Refinancing Commitments. The Specified Refinancing Commitments (or any portion thereof) may be made by any
existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional
Specified Refinancing Lender”, and the Additional Specified Refinancing Lenders together with any existing Lender providing
Specified Refinancing Commitments, the “Specified Refinancing Lenders”); provided that if such
Additional Specified Refinancing Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved
Fund, the consent of the Administrative Agent, such consent not to be unreasonably withheld or delayed) shall be required (it
being understood that any such Additional Specified Refinancing Lender that is an Affiliated Lender shall be subject to the provisions
of subsections 10.6(h) and 10.6(i), mutatis mutandis, to the same extent as if such Specified Refinancing Commitments and
related Obligations had been obtained by such Lender by way of assignment).
(c) Specified Refinancing Commitments shall become facilities under this Agreement pursuant to a Specified Refinancing Amendment to
this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each applicable Specified Refinancing
Lender. Any Specified Refinancing Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents
as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this
subsection 2.8, in each case on terms consistent with this subsection 2.8.
(d) Any loans made in respect of any such Specified Refinancing Commitment shall be made by creating a new Tranche. Each Specified
Refinancing Facility made available pursuant to this subsection 2.8 shall be in a minimum aggregate amount of at least $15.0 million
(or such lower minimum amounts as agreed to by the Administrative Agent in its reasonable discretion). Any Specified Refinancing
Amendment may provide for the issuance of letters of credit for the account of the Borrower or any Restricted Subsidiary, or the
provision to the Borrower of swing line loans, pursuant to any Specified Refinancing Revolving Commitments established thereby.
(e) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Specified Refinancing Amendment. Each
of the parties hereto hereby agrees that, upon the effectiveness of any Specified Refinancing Amendment, this Agreement shall
be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Specified Refinancing
Commitments incurred pursuant thereto (including the addition of such Specified Refinancing Commitments as separate “Facilities”
and “Tranches” hereunder and treated in a manner consistent with the Facilities being refinanced, including for purposes
of prepayments and voting). Any Specified Refinancing Amendment may, without the consent of any Person other than the Borrower,
the Administrative Agent and the Lenders providing such Specified Refinancing Commitments, effect such amendments to this Agreement
and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the
Borrower, to effect the provisions of this subsection 2.8.
SECTION
3 GENERAL PROVISIONS.
3.1 Interest Rates and Payment Dates.
(a) Each Term SOFR Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal
to Adjusted Term SOFR determined for such day plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest for each day that it is outstanding at a rate per annum equal to the ABR for such day plus
the Applicable Margin in effect for such day.
(c) If all or a portion of (i) the principal amount of any Loan, (ii) any interest payable thereon, or (iii)
any other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum which is (w) in the case of overdue principal, the rate that
would otherwise be applicable thereto pursuant to the relevant foregoing provisions of this subsection 3.1 plus 2.00%,
(x) in the case of overdue interest, the rate that would be otherwise applicable to principal of the related Loan pursuant
to the relevant foregoing provisions of this subsection 3.1 plus 2.00% (other than clause (w) above) and (y) in
the case of other amounts, the rate described in paragraph (b) of this subsection 3.1 for ABR Loans plus 2.00%, in each
case from the date of such nonpayment until such amount is paid in full (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to
paragraph (c) of this subsection 3.1 shall be payable from time to time on demand.
(e) It is the intention of the parties hereto to comply strictly with applicable usury laws; accordingly, it is stipulated and agreed
that the aggregate of all amounts which constitute interest under applicable usury laws, whether contracted for, charged, taken,
reserved, or received, in connection with the indebtedness evidenced by this Agreement or any Notes, or any other document relating
or referring hereto or thereto, now or hereafter existing, shall never exceed under any circumstance whatsoever the maximum amount
of interest allowed by applicable usury laws.
3.2 Conversion and Continuation Options.
(a) The Borrower may elect from time to time to convert outstanding Loans from Term SOFR Loans to ABR Loans by giving the Administrative
Agent at least two Business Days’ (or such shorter period as may be agreed to by the Administrative Agent in its reasonable
discretion) prior irrevocable notice of such election, provided that any such conversion of Term SOFR Loans may
only be made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert outstanding
Loans from ABR Loans to Term SOFR Loans by giving the Administrative Agent at least three Business Days’ (or such shorter
period as may be agreed to by the Administrative Agent in its reasonable discretion) prior irrevocable notice of such election.
Any such notice of conversion to Term SOFR Loans shall specify the length of the initial Interest Period or Interest Periods therefor.
Upon receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. All or any part of
outstanding Term SOFR Loans and ABR Loans may be converted as provided herein, provided that (i) no Loan
may be converted into a Term SOFR Loan when any Default or Event of Default has occurred and is continuing and the Administrative
Agent has or the Required Lenders have given notice to the Borrower that no such conversions may be made, and (ii) no Term
Loan may be converted into a Term SOFR Loan after the date that is one month prior to the applicable Maturity Date.
(b) Any Term SOFR Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent of the length of the next Interest Period to be applicable to such Loan, determined
in accordance with the applicable provisions of the term “Interest Period” set forth in subsection 1.1, provided
that no Term SOFR Loan may be continued as such (i) when any Default or Event of Default has occurred and is continuing
and the Administrative Agent has or the Required Lenders have given notice to the Borrower that no such continuations may be made
or (ii) after the date that is one month prior to the applicable Maturity Date, and provided, further,
that if the Borrower shall fail to give any required notice as described above in this subsection 3.2(b) or if such continuation
is not permitted pursuant to the preceding proviso, such Term SOFR Loans shall be automatically converted to ABR Loans on the
last day of such then expiring Interest Period. Upon receipt of any such notice of continuation pursuant to this subsection 3.2(b),
the Administrative Agent shall promptly notify each affected Lender thereof.
3.3 Minimum Amounts of Sets. All borrowings, conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate
principal amount of the Term SOFR Loans comprising each Set shall be equal to $5.0 million or a whole multiple of $1.0 million
in excess thereof, and so that there shall not be more than 15 Sets in any one Tranche at any one time outstanding.
3.4 Optional and Mandatory Prepayments.
(a) The Borrower may at any time and from time to time prepay the Loans made to it, in whole or in part, subject to subsection 3.12,
without premium or penalty, upon notice by the Borrower to the Administrative Agent at least three Business Days (or such shorter
period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case
of Term SOFR Loans), and prior to 2:00 P.M., New York City time (or such later time as may be agreed by the Administrative Agent
in its reasonable discretion) on the date of prepayment (in the case of ABR Loans). Such notice shall specify (i) the date
and amount of prepayment, (ii) the Tranche or Tranches of Loans to be prepaid (and, if more than one Tranche is to be prepaid,
the allocation of such prepayment among such Tranches), and (iii) whether the prepayment is of Term SOFR Loans, ABR Loans
or a combination thereof, and, if a combination thereof, the principal amount allocable to each. Any such notice may state that
such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of
other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent
on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative
Agent shall promptly notify each affected Lender thereof. If any such notice is given and is not revoked, the amount specified
in such notice shall be due and payable on the date specified therein, together with (if a Term SOFR Loan is prepaid other than
at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to
such date on the amount prepaid. Partial prepayments of Loans pursuant to this subsection 3.4(a) shall be applied to the respective
installments of principal of such Loans in such order as the Borrower may direct. Partial prepayments pursuant to this subsection
3.4(a) shall be in multiples of $1.0 million; provided that, notwithstanding the foregoing, any Loan may be prepaid
in its entirety. If at any time after the Restatement Effective Date and on or prior to the six-month anniversary thereof, the
Borrower pursuant to this subsection 3.4(a) makes an optional prepayment in full of the Initial Term Loans pursuant to a Repricing
Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each Lender of Initial Term Loans,
a prepayment premium of 1.00% of the aggregate principal amount of Initial Term Loans being prepaid. If at any time after the
Seventh Amendment Effective Date and on or prior to the six-month anniversary thereof, the Borrower pursuant to this subsection
3.4(a) makes an optional prepayment in full of the Initial Term Loans pursuant to a Repricing Transaction, the Borrower shall
pay to the Administrative Agent, for the ratable account of each Lender of Initial Term Loans, a prepayment premium of 1.00% of
the aggregate principal amount of Initial Term Loans being prepaid. If at any time after the Sixth Amendment Effective Date and
on or prior to the six-month anniversary thereof, the Borrower pursuant to this subsection 3.4(a) makes an optional prepayment
in full of the Incremental B-2019 Term Loans pursuant to a Repricing Transaction, the Borrower shall pay to the Administrative
Agent, for the ratable account of each Lender of Incremental B-2019 Term Loans, a prepayment premium of 1.00% of the aggregate
principal amount of Incremental B-2019 Term Loans being prepaid. If at any time after the NinthEleventh
Amendment Effective Date and on or prior to the six-month anniversary thereof, the Borrower pursuant to this subsection
3.4(a) makes an optional prepayment in full of the Incremental B-2021 Term Loans pursuant to a Repricing Transaction, the Borrower
shall pay to the Administrative Agent, for the ratable account of each Lender of Incremental B-2021 Term Loans, a prepayment premium
of 1.00% of the aggregate principal amount of Incremental B-2021 Term Loans being prepaid. If at any time after the Seventh Amendment
Effective Date and on or prior to the six month anniversary thereof any Lender of Initial Term Loans is replaced pursuant to subsection
10.1(g) or 10.1(h) in connection with any amendment of this Agreement (including in connection with any refinancing transaction
permitted under subsection 10.6(g) to replace the Initial Term Loans) that results in a Repricing Transaction, such Lender (and
not any Person who replaces such Lender pursuant to subsection 10.1(g) or 10.1(h)) shall receive a fee equal to 1.00% of the principal
amount of the Initial Term Loans of such Lender assigned to a replacement Lender pursuant to subsection 10.1(g) or 10.1(h). If
at any time after the Sixth Amendment Effective Date and on or prior to the six month anniversary thereof any Lender of Incremental
B-2019 Term Loans is replaced pursuant to subsection 10.1(g) or 10.1(h) in connection with any amendment of this Agreement (including
in connection with any refinancing transaction permitted under subsection 10.6(g) to replace the Incremental B-2019 Term Loans)
that results in a Repricing Transaction, such Lender (and not any Person who replaces such Lender pursuant to subsection 10.1(g)
or 10.1(h)) shall receive a fee equal to 1.00% of the principal amount of the Incremental B-2019 Term Loans of such Lender assigned
to a replacement Lender pursuant to subsection 10.1(g) or 10.1(h). If at any time after the NinthEleventh
Amendment Effective Date and on or prior to the six month anniversary thereof any Lender of Incremental B-2021
Term Loans is replaced pursuant to subsection 10.1(g) or 10.1(h) in connection with any amendment of this Agreement (including
in connection with any refinancing transaction permitted under subsection 10.6(g) to replace the Incremental B-2021 Term Loans)
that results in a Repricing Transaction, such Lender (and not any Person who replaces such Lender pursuant to subsection 10.1(g)
or 10.1(h)) shall receive a fee equal to 1.00% of the principal amount of the Incremental B-2021 Term Loans of such Lender assigned
to a replacement Lender pursuant to subsection 10.1(g) or 10.1(h).
(b) [Reserved.]
(c) The Borrower shall, in accordance with subsections 3.4(d) and 3.4(e), prepay the Term Loans to the extent required by subsection
7.4(b)(ii) (subject to subsection 7.4(c)).
(d) Subject to the last sentence of subsection 3.4(f) and subsection 3.4(j), each prepayment of Term Loans pursuant to subsection
3.4(c) shall be allocated pro rata among the Initial Term Loans, the Incremental Term Loans, the Extended Term Loans and the Specified
Refinancing Term Loans; provided that, at the request of the Borrower, in lieu of such application on a pro rata
basis among all Tranches of Term Loans, such prepayment may be applied to any Tranche of Term Loans so long as the maturity date
of such Tranche of Term Loans precedes the maturity date of each other Tranche of Term Loans then outstanding or, in the event
more than one Tranche of Term Loans shall have an identical maturity date that precedes the maturity date of each other Tranche
of Term Loans then outstanding, to such Tranches on a pro rata basis. Each prepayment of Term Loans pursuant to subsection 3.4(a)
shall be applied within each applicable Tranche of Term Loans to the respective installments of principal thereof in the manner
directed by the Borrower (or, if no such direction is given, in direct order of maturity. Each prepayment of Term Loans pursuant
to subsection 3.4(c) shall be applied within each applicable Tranche of Term Loans, first, to the accrued interest on the
principal amount of Term Loans being prepaid and, second, to the respective installments of principal thereof in the manner
directed by the Borrower (or, if no such direction is given in direct order of maturity). Notwithstanding any other provision
of this subsection 3.4, a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Term
Loans pursuant to subsection 3.4(a) or 3.4(c), exchange such Lender’s portion of the Term Loan to be prepaid for Rollover
Indebtedness, in lieu of such Lender’s pro rata portion of such prepayment (and any such Term Loans so exchanged shall be
deemed repaid for all purposes under the Loan Documents).
(e) The Borrower shall give notice to the Administrative Agent of any mandatory prepayment of the Term Loans pursuant to subsection
3.4(c) promptly (and in any event within five Business Days) upon becoming obligated to make such prepayment. Such notice shall
state that the Borrower is offering to make such mandatory prepayment on or before the date specified in subsection 7.4 (any such
date of prepayment, a “Prepayment Date”). Subject to the following sentence, once given, such notice shall
be irrevocable and all amounts subject to such notice shall be due and payable on the relevant Prepayment Date as required by
subsection 3.4 (except as otherwise provided in the last sentence of this subsection 3.4(e). Any such notice of prepayment pursuant
to subsection 3.4(c) may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein
(including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written
notice to the Administrative Agent, on or prior to the specified effective date) if such condition is not satisfied. Upon receipt
by the Administrative Agent of such notice, the Administrative Agent shall immediately give notice to each Lender of the prepayment
and the relevant Prepayment Date. In the case of any prepayment pursuant to subsection 3.4(c), each Lender may (in its sole discretion)
elect to decline any such prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 A.M., New
York City time, on the date that is three Business Days prior to the Prepayment Date (or such shorter period as may be agreed
to by the Administrative Agent in its reasonable discretion). Upon receipt by the Administrative Agent of such notice, the Administrative
Agent shall immediately notify the Borrower of such election. Any amount so declined by any Lender may, at the option of the Borrower,
be applied to pay or prepay other obligations under the other Credit Facilities, or otherwise be retained by the Borrower and
its Subsidiaries or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with this Agreement.
(f) Amounts prepaid on account of Term Loans pursuant to subsection 3.4(a), 3.4(b) or 3.4(c) may not be reborrowed.
(g) Notwithstanding the foregoing provisions of this subsection 3.4, if at any time any prepayment of the Term Loans pursuant to subsection
3.4(a) or 3.4(c) would result, after giving effect to the procedures set forth in this Agreement, in the Borrower incurring breakage
costs under subsection 3.12 as a result of Term SOFR Loans being prepaid other than on the last day of an Interest Period with
respect thereto, then the Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its
sole discretion, initially (i) deposit a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect
of such Term SOFR Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Term SOFR Loans
not immediately prepaid), to be held as security for the obligations of the Borrower to make such prepayment pursuant to a cash
collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent, with such cash collateral
to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Term SOFR
Loans (or such earlier date or dates as shall be requested by the Borrower); or (ii) make a prepayment of Loans in accordance
with subsection 3.4(a) with an amount equal to a portion (up to 100.0%) of the amounts that otherwise would have been paid in
respect of such Term SOFR Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount
to the amount of such Term SOFR Loans not immediately prepaid); provided that in the case of either clause (i) or
(ii) above, such unpaid Term SOFR Loans shall continue to bear interest in accordance with subsection 3.1 until such unpaid Term
SOFR Loans or the related portion of such Term SOFR Loans have or has been prepaid.
(h) Notwithstanding anything to the contrary herein, a Lender may, at its option, and if agreed by the Borrower, in connection with
any prepayment of Term Loans pursuant to subsection 3.4(a), exchange all or part of such Lender’s portion of the Term Loans
to be prepaid for Rollover Indebtedness, in lieu of all or such part of such Lender’s pro rata portion of such prepayment
(and any such Term Loans so exchanged shall be deemed repaid for all purposes under the Loan Documents).
(i) Discounted Term Loan Prepayments. Notwithstanding anything in any Loan Document to the contrary, the Borrower may prepay
the outstanding Term Loans on the following basis:
(i) Right to Prepay. The Borrower shall have the right to make a voluntary prepayment of Term Loans at a discount to par (such
prepayment, the “Discounted Term Loan Prepayment”) pursuant to a Borrower Offer of Specified Discount Prepayment,
a Borrower Solicitation of Discount Range Prepayment Offers, or a Borrower Solicitation of Discounted Prepayment Offers, in each
case made in accordance with this subsection 3.4(i); provided that the Borrower shall not initiate any action under
this subsection 3.4(i) in order to make a Discounted Term Loan Prepayment unless (1) at least 10 Business Days shall have
passed since the consummation of the most recent Discounted Term Loan Prepayment as a result of a prepayment made by the Borrower
on the applicable Discounted Prepayment Effective Date (or such shorter period as may be agreed to by the Administrative Agent
in its reasonable discretion); or (2) at least three Business Days shall have passed since the date the Borrower was notified
that no Lender was willing to accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at
any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of
the Borrower’s election not to accept any Solicited Discounted Prepayment Offers made by a Lender (or such shorter period
as may be agreed to by the Administrative Agent in its reasonable discretion). Each Lender participating in any Discounted Term
Loan Prepayment acknowledges and agrees that in connection with such Discounted Term Loan Prepayment, (1) the Borrower
then may have, and later may come into possession of, information regarding the Term Loans or the Loan Parties hereunder that
is not known to such Lender and that may be material to a decision by such Lender to participate in such Discounted Term Loan
Prepayment (“Excluded Information”), (2) such Lender has independently and, without reliance on Holding,
the Borrower, any of its Subsidiaries, the Administrative Agent or any of their respective Affiliates, has made its own analysis
and determination to participate in such Discounted Term Loan Prepayment notwithstanding such Lender’s lack of knowledge
of the Excluded Information and (3) none of Holding, the Borrower, its Subsidiaries, the Administrative Agent, or any of
their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent
permitted by law, any claims such Lender may have against Holding, the Borrower, its Subsidiaries, the Administrative Agent, and
their respective Affiliates, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information.
Each Lender participating in any Discounted Term Loan Prepayment further acknowledges that the Excluded Information may not be
available to the Administrative Agent or the other Lenders. Any Term Loans prepaid pursuant to this subsection 3.4(i) shall be
immediately and automatically cancelled.
(ii) Borrower Offer of Specified Discount Prepayment.
(1) The Borrower may from time to time offer
to make a Discounted Term Loan Prepayment by providing the Administrative Agent with one Business Day’s (or such shorter
period as may be agreed to by the Administrative Agent in its reasonable discretion) notice in the form of a Specified Discount
Prepayment Notice; provided that (I) any such offer shall be made available, at the sole discretion of the
Borrower, to each Lender or to each Lender with respect to any Tranche on a Tranche by Tranche basis, (II) any such offer
shall specify the aggregate Outstanding Amount offered to be prepaid (the “Specified Discount Prepayment Amount”),
the Tranches of Term Loans subject to such offer and the specific percentage discount to par value (the “Specified Discount”)
of the Outstanding Amount of such Loans to be prepaid, (III) the Specified Discount Prepayment Amount shall be in an aggregate
amount not less than $5.0 million and whole increments of $500,000, and (IV) each such offer shall remain outstanding through
the Specified Discount Prepayment Response Date. The Administrative Agent will promptly provide each relevant Lender with a copy
of such Specified Discount Prepayment Notice and a form of the Specified Discount Prepayment Response to be completed and returned
by each such Lender to the Administrative Agent (or its delegate) by no later than 5:00 P.M., New York time, on the third Business
Day after the date of delivery of such notice to the relevant Lenders (or such later date designated by the Administrative Agent
and approved by the Borrower) (the “Specified Discount Prepayment Response Date”).
(2) (2) Each
relevant Lender receiving such offer shall notify the Administrative Agent (or its delegate) by the Specified Discount Prepayment
Response Date whether or not it agrees to accept a prepayment of any of its relevant then outstanding Term Loans at the Specified
Discount and, if so (such accepting Lender, a “Discount Prepayment Accepting Lender”), the amount of such Lender’s
Outstanding Amount and Tranches of Term Loans to be prepaid at such offered discount. Each acceptance of a Discounted Term Loan
Prepayment by a Discount Prepayment Accepting Lender shall be irrevocable. Any Lender whose Specified Discount Prepayment Response
is not received by the Administrative Agent by the Specified Discount Prepayment Response Date shall be deemed to have declined
to accept such Borrower Offer of Specified Discount Prepayment.
(3) (3) If
there is at least one Discount Prepayment Accepting Lender, the Borrower will make prepayment of outstanding Term Loans pursuant
to this paragraph (ii) to each Discount Prepayment Accepting Lender in accordance with the respective Outstanding Amount and Tranches
of Term Loans specified in such Lender’s Specified Discount Prepayment Response given pursuant to the foregoing clause (2);
provided that, if the aggregate Outstanding Amount of Term Loans accepted for prepayment by all Discount Prepayment
Accepting Lenders exceeds the Specified Discount Prepayment Amount, such prepayment shall be made pro rata among the Discount
Prepayment Accepting Lenders in accordance with the respective Outstanding Amounts accepted to be prepaid by each such Discount
Prepayment Accepting Lender and the Administrative Agent (in consultation with the Borrower and subject to rounding requirements
of the Administrative Agent made in its reasonable discretion) will calculate such proration (the “Specified Discount
Proration”). The Administrative Agent shall promptly, and in any case within three Business Days following the Specified
Discount Prepayment Response Date, notify (I) the Borrower of the respective Lenders’ responses to such offer, the
Discounted Prepayment Effective Date and the aggregate Outstanding Amount of the Discounted Term Loan Prepayment and the Tranches
to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, and the aggregate Outstanding Amount and the
Tranches of all Term Loans to be prepaid at the Specified Discount on such date, and (III) each Discount Prepayment Accepting
Lender of the Specified Discount Proration, if any, and confirmation of the Outstanding Amount, Tranche and Type of Loans of such
Lender to be prepaid at the Specified Discount on such date. Each determination by the Administrative Agent of the amounts stated
in the foregoing notices to the Borrower and Lenders shall be conclusive and binding for all purposes absent manifest error. The
payment amount specified in such notice to the Borrower shall be due and payable by the Borrower on the Discounted Prepayment
Effective Date in accordance with paragraph (vi) below (subject to paragraph (x) below).
(iii) Borrower Solicitation of Discount Range Prepayment Offers.
(1) The Borrower may from time to time solicit
Discount Range Prepayment Offers by providing the Administrative Agent with one Business Day’s (or such shorter period as
may be agreed to by the Administrative Agent in its reasonable discretion) notice in the form of a Discount Range Prepayment Notice;
provided that (I) any such solicitation shall be extended, at the sole discretion of the Borrower, to each
Lender or to each Lender with respect to any Tranche on a Tranche by Tranche basis, (II) any such notice shall specify
the maximum aggregate Outstanding Amount of the relevant Term Loans that the Borrower is willing to prepay at a discount (the
“Discount Range Prepayment Amount”), the Tranches of Term Loans subject to such offer and the maximum and minimum
percentage discounts to par (the “Discount Range”) of the Outstanding Amount of such Term Loans willing to
be prepaid by the Borrower, (III) the Discount Range Prepayment Amount shall be in an aggregate amount not less than $5.0
million and whole increments of $500,000, and (IV) each such solicitation by the Borrower shall remain outstanding through
the Discount Range Prepayment Response Date. The Administrative Agent will promptly provide each relevant Term Loan Lender with
a copy of such Discount Range Prepayment Notice and a form of the Discount Range Prepayment Offer to be submitted by a responding
relevant Term Loan Lender to the Administrative Agent (or its delegate) by no later than 5:00 P.M., New York time, on the third
Business Day after the date of delivery of such notice to the relevant Term Loan Lenders (or such later date as may be designated
by the Administrative Agent and approved by the Borrower) (the “Discount Range Prepayment Response Date”).
Each relevant Term Loan Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify a discount to par
within the Discount Range (the “Submitted Discount”) at which such Lender is willing to allow prepayment of
any or all of its then outstanding Term Loans and the maximum aggregate Outstanding Amount and Tranches of such Term Loans such
Lender is willing to have prepaid at the Submitted Discount (the “Submitted Amount”). Any Term Loan Lender
whose Discount Range Prepayment Offer is not received by the Administrative Agent by the Discount Range Prepayment Response Date
shall be deemed to have declined to accept a Discounted Term Loan Prepayment of any of its Term Loans at any discount to their
par value within the Discount Range.
(2) (2) The
Administrative Agent shall review all Discount Range Prepayment Offers received by it by the Discount Range Prepayment Response
Date and will determine (in consultation with the Borrower and subject to rounding requirements of the Administrative Agent made
in its reasonable discretion) the Applicable Discount and Term Loans to be prepaid at such Applicable Discount in accordance with
this paragraph (iii). The Borrower agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment
Offers received by Administrative Agent by the Discount Range Prepayment Response Date, in the order from the Submitted Discount
that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted
Discount that is the smallest discount to par within the Discount Range (such Submitted Discount that is the smallest discount
to par being referred to as the “Applicable Discount”) which yields a Discounted Term Loan Prepayment in an
aggregate Outstanding Amount equal to the lesser of (I) the Discount Range Prepayment Amount and (II) the sum of
all Submitted Amounts. Each Lender that has submitted a Discount Range Prepayment Offer to accept prepayment at a discount to
par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Term
Loans equal to its Submitted Amount (subject to any required proration pursuant to the following clause (3)) at the Applicable
Discount (each such Lender, a “Participating Lender”).
(3) (3) If
there is at least one Participating Lender, the Borrower will prepay the respective outstanding Term Loans of each Participating
Lender in the aggregate Outstanding Amount and of the Tranches specified in such Lender’s Discount Range Prepayment Offer
at the Applicable Discount; provided that if the Submitted Amount by all Participating Lenders offered at a discount
to par greater than the Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the Outstanding Amount
of the relevant Term Loans for those Participating Lenders whose Submitted Discount is a discount to par greater than or equal
to the Applicable Discount (the “Identified Participating Lenders”) shall be made pro rata among the Identified
Participating Lenders in accordance with the Submitted Amount of each such Identified Participating Lender and the Administrative
Agent (in consultation with the Borrower and subject to rounding requirements of the Administrative Agent made in its reasonable
discretion) will calculate such proration (the “Discount Range Proration”). The Administrative Agent shall
promptly, and in any case within three Business Days following the Discount Range Prepayment Response Date, notify (w)
the Borrower of the respective Term Loan Lenders’ responses to such solicitation, the Discounted Prepayment Effective Date,
the Applicable Discount, and the aggregate Outstanding Amount of the Discounted Term Loan Prepayment and the Tranches to be prepaid,
(x) each Term Loan Lender of the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate Outstanding
Amount and Tranches of all Term Loans to be prepaid at the Applicable Discount on such date, (y) each Participating Lender
of the aggregate Outstanding Amount and Tranches of such Lender to be prepaid at the Applicable Discount on such date, and (z)
if applicable, each Identified Participating Lender of the Discount Range Proration. Each determination by the Administrative
Agent of the amounts stated in the foregoing notices to the Borrower and Lenders shall be conclusive and binding for all purposes
absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by such Borrower on
the Discounted Prepayment Effective Date in accordance with paragraph (vi) below (subject to paragraph (x) below).
(iv) Borrower Solicitation of Discounted Prepayment Offers.
(1) The Borrower may from time to time solicit
Solicited Discounted Prepayment Offers by providing the Administrative Agent with one Business Day’s (or such shorter period
as may be agreed to by the Administrative Agent in its reasonable discretion) notice in the form of a Solicited Discounted Prepayment
Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of the Borrower,
to each Lender or to each Lender and with respect to any Tranche on a Tranche by Tranche basis, (II) any such notice shall
specify the maximum aggregate Outstanding Amount of the Term Loans and the Tranches of Term Loans the Borrower is willing to prepay
at a discount (the “Solicited Discounted Prepayment Amount”), (III) the Solicited Discounted Prepayment
Amount shall be in an aggregate amount not less than $5.0 million and whole increments of $500,000, and (IV) each such
solicitation by the Borrower shall remain outstanding through the Solicited Discounted Prepayment Response Date. The Administrative
Agent will promptly provide each relevant Term Loan Lender with a copy of such Solicited Discounted Prepayment Notice and a form
of the Solicited Discounted Prepayment Offer to be submitted by a responding Term Loan Lender to the Administrative Agent (or
its delegate) by no later than 5:00 P.M., New York time on the third Business Day after the date of delivery of such notice to
the relevant Term Loan Lenders (or such later date as may be designated by the Administrative Agent and approved by the Borrower)
(the “Solicited Discounted Prepayment Response Date”). Each Term Loan Lender’s Solicited Discounted Prepayment
Offer shall (x) be irrevocable, (y) remain outstanding until the Acceptance Date, and (z) specify both a
discount to par (the “Offered Discount”) at which such Term Loan Lender is willing to allow prepayment of its
then outstanding Term Loans and the maximum aggregate Outstanding Amount and Tranches of such Term Loans (the “Offered
Amount”) such Lender is willing to have prepaid at the Offered Discount. Any Term Loan Lender whose Solicited Discounted
Prepayment Offer is not received by the Administrative Agent by the Solicited Discounted Prepayment Response Date shall be deemed
to have declined prepayment of any of its Term Loans at any discount to their par value.
(2) (2) The
Administrative Agent shall promptly provide the Borrower with a copy of all Solicited Discounted Prepayment Offers received by
it by the Solicited Discounted Prepayment Response Date. The Borrower shall review all such Solicited Discounted Prepayment Offers
and select, at its sole discretion, the smallest of the Offered Discounts specified by the relevant responding Term Loan Lenders
in the Solicited Discounted Prepayment Offers that the Borrower is willing to accept (the “Acceptable Discount”),
if any. If the Borrower elects to accept any Offered Discount as the Acceptable Discount, then as soon as practicable after the
determination of the Acceptable Discount, but in no event later than by the third Business Day after the date of receipt by the
Borrower from the Administrative Agent of a copy of all Solicited Discounted Prepayment Offers pursuant to the first sentence
of this clause (2) (the “Acceptance Date”), the Borrower shall submit an Acceptance and Prepayment Notice to
the Administrative Agent setting forth the Acceptable Discount. If the Administrative Agent shall fail to receive an Acceptance
and Prepayment Notice from the Borrower by the Acceptance Date, the Borrower shall be deemed to have rejected all Solicited Discounted
Prepayment Offers.
(3) (3) Based
upon the Acceptable Discount and the Solicited Discounted Prepayment Offers received by Administrative Agent by the Solicited
Discounted Prepayment Response Date, within three Business Days after receipt of an Acceptance and Prepayment Notice (the “Discounted
Prepayment Determination Date”), the Administrative Agent will determine (in consultation with the Borrower and subject
to rounding requirements of the Administrative Agent made in its reasonable discretion) the aggregate Outstanding Amount and the
Tranches of Term Loans (the “Acceptable Prepayment Amount”) to be prepaid by the Borrower at the Acceptable
Discount in accordance with this subsection 3.4(i)(iv). If the Borrower elects to accept any Acceptable Discount, then the Parent
agrees to accept all Solicited Discounted Prepayment Offers received by the Administrative Agent by the Solicited Discounted Prepayment
Response Date, in the order from largest Offered Discount to smallest Offered Discount, up to and including the Acceptable Discount.
Each Lender that has submitted a Solicited Discounted Prepayment Offer to accept prepayment at an Offered Discount that is greater
than or equal to the Acceptable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its
Offered Amount (subject to any required proration pursuant to the following sentence) at the Acceptable Discount (each such Lender,
a “Qualifying Lender”). The Borrower will prepay outstanding Term Loans pursuant to this paragraph (3) to each
Qualifying Lender in the aggregate Outstanding Amount and of the Tranches specified in such Lender’s Solicited Discounted
Prepayment Offer at the Acceptable Discount; provided that if the aggregate Offered Amount by all Qualifying Lenders
whose Offered Discount is greater than or equal to the Acceptable Discount exceeds the Solicited Discounted Prepayment Amount,
prepayment of the Outstanding Amount of the Term Loans for those Qualifying Lenders whose Offered Discount is greater than or
equal to the Acceptable Discount (the “Identified Qualifying Lenders”) shall be made pro rata among the Identified
Qualifying Lenders in accordance with the Offered Amount of each such Identified Qualifying Lender and the Administrative Agent
(in consultation with the Borrower and subject to rounding requirements of the Administrative Agent made in its reasonable discretion)
will calculate such proration (the “Solicited Discount Proration”). On or prior to the Discounted Prepayment
Determination Date, the Administrative Agent shall promptly notify (w) the Borrower of the Discounted Prepayment Effective
Date and Acceptable Prepayment Amount comprising the Discounted Term Loan Prepayment and the Tranches to be prepaid, (x)
each Term Loan Lender of the Discounted Prepayment Effective Date, the Acceptable Discount, and the Acceptable Prepayment Amount
of all Term Loans and the Tranches to be prepaid at the Applicable Discount on such date, (y) each Qualifying Lender of
the aggregate Outstanding Amount and the Tranches of such Lender to be prepaid at the Acceptable Discount on such date, and (z)
if applicable, each Identified Qualifying Lender of the Solicited Discount Proration. Each determination by the Administrative
Agent of the amounts stated in the foregoing notices to the Borrower and Lenders shall be conclusive and binding for all purposes
absent manifest error. The payment amount specified in such notice to such Borrower shall be due and payable by such Borrower
on the Discounted Prepayment Effective Date in accordance with paragraph (vi) below (subject to paragraph (x) below).
(v) Expenses. In connection with any Discounted Term Loan Prepayment, the Borrower and the Lenders acknowledge and agree that
the Administrative Agent may require as a condition to any Discounted Term Loan Prepayment, the payment of customary fees and
expenses from the Borrower in connection therewith.
(vi) Payment. If any Term Loan is prepaid in accordance with paragraphs (ii) through (iv) above, the Borrower shall prepay such
Term Loans on the Discounted Prepayment Effective Date. The Borrower shall make such prepayment to the Administrative Agent, for
the account of the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, at the
Administrative Agent’s Office in the applicable currency and in immediately available funds not later than 2:00 P.M. (New
York time) on the Discounted Prepayment Effective Date and all such prepayments shall be applied to the remaining principal installments
of the Term Loans on a pro rata basis. The Term Loans so prepaid shall be accompanied by all accrued and unpaid interest on the
par principal amount so prepaid up to, but not including, the Discounted Prepayment Effective Date. Each prepayment of the outstanding
Term Loans pursuant to this subsection 3.4(i) shall be paid to the Discount Prepayment Accepting Lenders, Participating Lenders,
or Qualifying Lenders, as applicable. The aggregate Outstanding Amount of the Tranches of the Term Loans outstanding shall be
deemed reduced by the full par value of the aggregate Outstanding Amount of the Tranches of Term Loans prepaid on the Discounted
Prepayment Effective Date in any Discounted Term Loan Prepayment. The Lenders hereby agree that, in connection with a prepayment
of Term Loans pursuant to this subsection 3.4(i) and notwithstanding anything to the contrary contained in this Agreement, (i)
interest in respect of the Loans may be made on a non-pro rata basis among the Lenders holding such Loans to reflect the payment
of accrued interest to certain Lenders as provided in this subsection 3.4(i)(vi) and (ii) all subsequent prepayments and
repayments of the Loans (except as otherwise contemplated by this Agreement) shall be made on a pro rata basis among the respective
Lenders based upon the then outstanding principal amounts of the Loans then held by the respective Lenders after giving effect
to any prepayment pursuant to this subsection 3.4(i) as if made at par. It is also understood and agreed that prepayments pursuant
to this subsection 3.4(i) shall not be subject to subsection 3.4(a), or, for the avoidance of doubt, subsection 10.7(a) or the
pro rata allocation requirements of subsection 3.8(a).
(vii) Other Procedures. To the extent not expressly provided for herein, each Discounted Term Loan Prepayment shall be consummated
pursuant to procedures consistent with the provisions in this subsection 3.4(i), established by the Administrative Agent acting
in its reasonable discretion and as reasonably agreed by the Borrower.
(viii) Notice. Notwithstanding anything in any Loan Document to the contrary, for purposes of this subsection 3.4(i), each notice
or other communication required to be delivered or otherwise provided to the Administrative Agent (or its delegate) shall be deemed
to have been given upon the Administrative Agent’s (or its delegate’s) actual receipt during normal business hours
of such notice or communication; provided that any notice or communication actually received outside of normal business
hours shall be deemed to have been given as of the opening of business on the next Business Day.
(ix) Actions of Administrative Agent. Each of the Borrower and the Lenders acknowledges and agrees that Administrative Agent
may perform any and all of its duties under this subsection 3.4(i) by itself or through any Affiliate of the Administrative Agent
and expressly consents to any such delegation of duties by the Administrative Agent to such Affiliate and the performance of such
delegated duties by such Affiliate. The exculpatory provisions in this Agreement shall apply to each Affiliate of the Administrative
Agent and its respective activities in connection with any Discounted Term Loan Prepayment provided for in this subsection 3.4(i)
as well as to activities of the Administrative Agent in connection with any Discounted Term Loan Prepayment provided for in this
subsection 3.4(i).
(x) Revocation. The Borrower shall have the right, by written notice to the Administrative Agent, to revoke in full (but not
in part) its offer to make a Discounted Term Loan Prepayment and rescind the applicable Specified Discount Prepayment Notice,
Discount Range Prepayment Notice or Solicited Discounted Prepayment Notice therefor at its discretion at any time on or prior
to the applicable Specified Discount Prepayment Response Date (and if such offer is so revoked, any failure by such Borrower to
make any prepayment to a Lender pursuant to this subsection 3.4(i) shall not constitute a Default or Event of Default under subsection
8(a) or otherwise).
(xi) No Obligation. This subsection 3.4(i) shall not (i) require the Borrower to undertake any prepayment pursuant to
this subsection 3.4(i) or (ii) limit or restrict the Borrower from making voluntary prepayments of the Loans in accordance
with the other provisions of this Agreement.
(j) Notwithstanding anything to the contrary herein, this subsection 3.4 may be amended (and the Lenders hereby irrevocably authorize
the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and
priorities of payments, to Lenders participating in any new classes or tranches of Term Loans added pursuant to subsections 2.5,
2.6 and 2.8, as applicable, or pursuant to any other credit or letter of credit facility added pursuant to subsection 2.5, 10.1(g)
or 10.1(h).
3.5 Administrative Agent’s Fees. The Borrower agrees to pay, or cause to be paid, to the Administrative Agent and the
Lead Arrangers any fees in the amounts and on the dates previously agreed to in writing by the Borrower, the Lead Arrangers and
the Administrative Agent in connection with this Agreement.
3.6 Computation of Interest and Fees.
(a) Interest (other than interest based on the Prime Rate) shall be calculated on the basis of a 360-day year for the actual days
elapsed; and commitment fees and any other fees and interest based on the Prime Rate shall be calculated on the basis of a 365-day
year (or 366-day year, as the case may be) for the actual days elapsed. The Administrative Agent shall as soon as practicable
notify the Borrower and the affected Lenders of each determination of Adjusted Term SOFR. Any change in the interest rate on a
Loan resulting from a change in the ABR or the commencement of an Interest Period shall become effective as of the opening of
business on the day on which such change becomes effective or such Interest Period commences. The Administrative Agent shall as
soon as practicable notify the Borrower and the affected Lenders of the effective date and the amount of each such change in interest
rate.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive
and binding on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of
the Borrower or any Lender, deliver to the Borrower or such Lender a statement showing in reasonable detail the calculations used
by the Administrative Agent in determining any interest rate pursuant to subsection 3.1, excluding any calculation of Adjusted
Term SOFR which is based upon the Term SOFR Reference Rate and any ABR Loan which is based upon the Prime Rate.
3.7 Inability to Determine Interest Rate.
(a) If prior to the first day of any Interest Period, the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining Adjusted Term SOFR with respect to any Term SOFR Loan (the “Affected Rate”)
for such Interest Period, the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the Lenders
as soon as practicable thereafter. If such notice is given (a) any Term SOFR Loans the rate of interest applicable to which
is based on the Affected Rate requested to be made on the first day of such Interest Period shall be made as ABR Loans and (b)
any Loans that were to have been converted on the first day of such Interest Period to or continued as Term SOFR Loans the rate
of interest applicable to which is based upon the Affected Rate shall be converted to or continued as ABR Loans.
(b) Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, this Agreement and the other
Loan Documents may be amended to replace Term SOFR (and Adjusted Term SOFR) with a comparable or successor floating rate made
available by the Administrative Agent to its customers with syndicated credit facilities of this type (or a successor to such
successor rate) either (x) at such time as the Administrative Agent determines that there is a broadly accepted rate for syndicated
credit facilities of this type, as agreed between the Administrative Agent and the Borrower (but not, for the avoidance of doubt,
any other Lender), in each case in their reasonable discretion, or (y) as consented to by the Required Lenders and the Borrower;
provided that the consent of the Required Lenders may be obtained through negative consent, which shall be deemed
to be given so long as the Lenders are given notice of such amendment and the Required Lenders shall not have objected in writing
to the Administrative Agent and the Borrower within five Business Days of the date of such notice; provided,
further, that (i) any such successor rate shall be applied by the Administrative Agent in a manner consistent with
market practice and (ii) to the extent such market practice is not administratively feasible for the Administrative Agent, such
successor rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent in consultation with
the Borrower, which application shall in no event result in a higher cost of funding than Loans bearing interest at ABR;
provided, further, that at the prior written request of the Borrower or the Administrative Agent,
the Administrative Agent and the Borrower shall negotiate in good faith to amend the definition of Term SOFR (and Adjusted Term
SOFR) and the other applicable provisions in this Agreement and the other Loan Documents to preserve the original intent thereof
in light of the foregoing amendments described in this subsection 3.7(b). Notwithstanding any other provision in this Agreement
to the contrary (including in Section 10.1), any of the foregoing amendments pursuant to this subsection 3.7(b) shall become effective
without any further action or consent of any other party to this Agreement other than as set forth above.
3.8 Pro Rata Treatment and Payments. Each payment (including each prepayment, but excluding payments made pursuant to subsection
2.5, 2.6, 2.7, 2.8, the last five sentences of 3.4(a), 3.9, 3.10, 3.11, 3.12, 3.13(d), 10.1(g) or 10.1(h), and subject to subsection
3.4(h)) by the Borrower on account of principal of and interest on any Tranche of Loans (other than (x) payments in respect
of any difference in the Applicable Margin, Adjusted Term SOFR or ABR in respect of any Tranche, (y) any payment pursuant
to subsection 3.4(c), to the extent declined by any Lender as provided in subsection 3.4(e) and (z) any payments pursuant
to subsection 3.4(i), which shall be allocated as set forth in subsection 3.4(i)) shall be allocated by the Administrative Agent
pro rata according to the respective outstanding principal amounts of such Loans of such Tranche then held by the respective Lenders
provided that a Lender may, at its option, and if agreed by the Borrower, exchange such Lender’s portion of
a Term Loan to be prepaid for Rollover Indebtedness, in lieu of such Lender’s pro rata portion of such prepayment, pursuant
to subsection 3.4(h). All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal,
interest, fees or otherwise, shall be made without set-off or counterclaim and shall be made on or prior to the time expressly
required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 1:00
P.M., New York City time), on the due date thereof to the Administrative Agent, for the account of the relevant Lenders at the
Administrative Agent’s office specified in subsection 10.2, and shall be made in Dollars and in immediately available funds.
Payments received by the Administrative Agent after such time shall be deemed to have been received on the next Business Day.
The Administrative Agent shall distribute such payments to such Lenders, if any such payment is received prior to 1:00 P.M., New
York City time, on a Business Day, in like funds as received prior to the end of such Business Day, and otherwise the Administrative
Agent shall distribute such payment to such Lenders on the next succeeding Business Day. If any payment hereunder (other than
payments on the Term SOFR Loans) becomes due and payable on a day other than a Business Day, the maturity of such payment shall
be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable
at the then applicable rate during such extension. If any payment on a Term SOFR Loan becomes due and payable on a day other than
a Business Day, the maturity of such payment shall be extended to the next succeeding Business Day (and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate during such extension) unless the result of such extension
would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding
Business Day. This subsection 3.8(a) may be amended in accordance with subsection 10.1(d) to the extent necessary to reflect differing
amounts payable, and priorities of payments, to Lenders participating in any new Tranches added pursuant to subsections 2.5, 2.6,
2.8, 10.1(g) and 10.1(h), as applicable.
(a) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not
make the amount that would constitute its share of such borrowing available to such Agent, the Administrative Agent may assume
that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower in respect of such borrowing a corresponding amount. If such amount is not made
available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative
Agent on demand, such amount with interest thereon at a rate equal to the daily average Federal Funds Effective Rate as quoted
by the Administrative Agent, or another bank of recognized standing reasonably selected by the Administrative Agent, for the period
until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this subsection shall be conclusive in the absence of manifest
error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within
three Business Days of such Borrowing Date, (x) the Administrative Agent shall notify the Borrower of the failure of such
Lender to make such amount available to the Administrative Agent and the Administrative Agent shall also be entitled to recover
such amount with interest thereon at the rate per annum applicable to ABR Loans hereunder on demand, from the Borrower and (y)
then the Borrower may, without waiving or limiting any rights or remedies it may have against such Lender hereunder or under applicable
law or otherwise, borrow a like amount on an unsecured basis from any commercial bank for a period ending on the date upon which
such Lender does in fact make such borrowing available.
3.9 Illegality. Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof occurring after the Restatement Effective Date shall make it unlawful for any Lender
to make or maintain any Term SOFR Loans as contemplated by this Agreement (“Affected Loans”), (a) such Lender shall
promptly give written notice of such circumstances to the Borrower and the Administrative Agent (which notice shall be withdrawn
whenever such circumstances no longer exist), (b) the commitment of such Lender hereunder to make Affected Loans, continue Affected
Loans as such and convert an ABR Loan to an Affected Loan shall forthwith be cancelled and, until such time as it shall no longer
be unlawful for such Lender to make or maintain such Affected Loans, such Lender shall then have a commitment only to make an
ABR Loan when an Affected Loan is requested and (c) such Lender’s Loans then outstanding as Affected Loans, if any, shall
be converted automatically to ABR Loans on the respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion of an Affected Loan occurs on a day which is not
the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if
any, as may be required pursuant to subsection 3.12.
3.10 Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof applicable to any Lender,
or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other
Governmental Authority, in each case made subsequent to the Restatement Effective Date (or, if later, the date on which such Lender
becomes a Lender):
(i) shall subject such Lender to any tax of any kind whatsoever with respect to any Term SOFR Loan made or maintained by it or its
obligation to make or maintain Term SOFR Loans, or change the basis of taxation of payments to such Lender in respect thereof,
in each case except for Non-Excluded Taxes, Taxes arising under FATCA and Taxes measured by or imposed upon the overall net income,
or franchise Taxes, or Taxes measured by or imposed upon overall capital or net worth, or branch Taxes (in the case of such capital,
net worth or branch Taxes, imposed in lieu of such net income Tax), of such Lender or its applicable lending office, branch, or
any affiliate thereof;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition
of funds by, any office of such Lender which is not otherwise included in the determination of Term SOFR hereunder; or
(iii) shall impose on such Lender any other condition (excluding any Tax of any kind whatsoever);
and
the result of any of the foregoing is to increase the cost to such Lender, by an amount which such Lender deems to be material,
of making, converting into, continuing or maintaining Term SOFR Loans (or any Loan described in clause (i) above) or to reduce
any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower from such Lender, through
the Administrative Agent, in accordance herewith, the Borrower shall promptly pay such Lender, upon its demand, any additional
amounts necessary to compensate such Lender for such increased cost or reduced amount receivable with respect to such Term SOFR
Loans (or any Loan described in clause (i) above), provided that, in any such case, the Borrower may elect to convert
the Term SOFR Loans made by such Lender hereunder to ABR Loans by giving the Administrative Agent at least one Business Day’s
(or such shorter period as may be agreed to by the Administrative Agent in its reasonable discretion) notice of such election,
in which case the Borrower shall promptly pay to such Lender, upon demand, without duplication, amounts theretofore required to
be paid to such Lender pursuant to this subsection 3.10(a) and such amounts, if any, as may be required pursuant to subsection
3.12. If any Lender becomes entitled to claim any additional amounts pursuant to this subsection, it shall provide prompt notice
thereof to the Borrower, through the Administrative Agent, certifying (x) that one of the events described in this paragraph
(a) has occurred and describing in reasonable detail the nature of such event, (y) as to the increased cost or reduced
amount resulting from such event and (z) as to the additional amount demanded by such Lender and a reasonably detailed
explanation of the calculation thereof. Such a certificate as to any additional amounts payable pursuant to this subsection submitted
by such Lender, through the Administrative Agent, to the Borrower shall be conclusive in the absence of manifest error. Notwithstanding
anything to the contrary in this subsection 3.10(a), the Borrower shall not be required to compensate a Lender pursuant to this
subsection 3.10(a) (i) for any amounts incurred more than six months prior to the date that such Lender notifies the Borrower
of such Lender’s intention to claim compensation therefor or (ii) for any amounts, if such Lender is applying this
provision to the Borrower in a manner that is inconsistent with its application of “increased cost” or other similar
provisions under other syndicated credit agreements to similarly situated borrowers. This subsection 3.10 shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or
in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority, in each
case, made subsequent to the Restatement Effective Date, does or shall have the effect of reducing the rate of return on such
Lender’s or such corporation’s capital as a consequence of such Lender’s obligations or hereunder to a level
below that which such Lender or such corporation could have achieved but for such change or compliance (taking into consideration
such Lender’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time, within 10 Business Days after submission by such Lender to the Borrower (with a copy to
the Administrative Agent) of a written request therefor certifying (x) that one of the events described in this paragraph
(b) has occurred and describing in reasonable detail the nature of such event, (y) as to the reduction of the rate of return
on capital resulting from such event and (z) as to the additional amount or amounts demanded by such Lender or corporation
and a reasonably detailed explanation of the calculation thereof, the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender or corporation for such reduction. Such a certificate as to any additional amounts payable
pursuant to this subsection submitted by such Lender, through the Administrative Agent, to the Borrower shall be conclusive in
the absence of manifest error. Notwithstanding anything to the contrary in this subsection 3.10(b), the Borrower shall not be
required to compensate a Lender pursuant to this subsection 3.10(b) (i) for any amounts incurred more than six months prior
to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor or (ii)
for any amounts, if such Lender is applying this provision to the Borrower in a manner that is inconsistent with its application
of “increased cost” or other similar provisions under other syndicated credit agreements to similarly situated borrowers.
This subsection shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(c) Notwithstanding anything to the contrary in this subsection 3.10, the Borrower shall not be required to pay any amount with respect
to any additional cost or reduction specified in paragraph (a) or paragraph (b) above, to the extent such additional cost or reduction
is attributable, directly or indirectly, to the application of, compliance with or implementation of specific capital adequacy
requirements or new methods of calculating capital adequacy, including any part or “pillar” (including Pillar 2 (“Supervisory
Review Process”)), of the International Convergence of Capital Measurement Standards: a Revised Framework, published
by the Basel Committee on Banking Supervision in June 2004, or any implementation or adoption (whether voluntary or compulsory)
thereof, whether by an EC Directive or the FSA Integrated Prudential Sourcebook or any other law or regulation, or otherwise.
3.11 Taxes.
(a) Except as provided below in this subsection or as required by law (which, for purposes of this subsection 3.11, shall include
FATCA), all payments made by the Borrower under this Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of any Taxes; provided that if any Non-Excluded Taxes are required to be withheld
from any amounts payable by the Borrower to the Administrative Agent or any Lender hereunder or under any Notes, the amounts so
payable by the Borrower shall be increased to the extent necessary to yield to such Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement;
provided, however, that the Borrower shall be entitled to deduct and withhold, and the Borrower shall
not be required to indemnify for any Non-Excluded Taxes, and any such amounts payable by the Borrower or the Administrative Agent
to or for the account of any Agent or Lender, shall not be increased (w) if such Agent or Lender fails to comply with the
requirements of subsection 3.11(b) or 3.11(c), (x) with respect to any Non-Excluded Taxes imposed in connection with the
payment of any fees paid under this Agreement unless such Non-Excluded Taxes are imposed as a result of a change in treaty, law
or regulation that occurred after the later of the Restatement Effective Date and the date on which such Agent became an Agent
hereunder or such Lender became a Lender (or, if such Agent or Lender is a non-U.S. intermediary or flow-through entity for U.S.
federal income tax purposes, after the relevant beneficiary or member of such Agent or Lender became such a beneficiary or member,
if later) (any such change, at such time, a “Change in Law”), (y) with respect to any Non-Excluded Taxes
imposed by the United States or any state or political subdivision thereof, unless such Non-Excluded Taxes are imposed (1)
as a result of a Change in Law or (2) on a Person that is an assignee whose assignor was entitled to receive additional
amounts with respect to payments made by the Borrower, at the time such assignment was effective, as a result of Change in Law
that occurred after the Restatement Effective Date and such assignee is subject to the same Change in Law with respect to payments
from the Borrower, provided that in no event shall such additional amounts under this clause (2) exceed the additional
amounts that the assignor was entitled to receive at the time such assignment was effective, or (z) in respect of any Non-Excluded
Taxes arising under FATCA. Whenever any Non-Excluded Taxes are payable by the Borrower, as promptly as possible thereafter the
Borrower shall send to the Administrative Agent for its own account or for the account of such Lender or Agent, as the case may
be, a certified copy of an original official receipt (or other documentary evidence of such payment reasonably acceptable to the
Administrative Agent) received by the Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes it
is required to pay pursuant to the preceding provisions of this subsection 3.11(a) when due to the appropriate Governmental Authority
in accordance with applicable law or fails to remit to the Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent, the Lenders and the Agents for any incremental Taxes, interest
or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements
in this subsection 3.11 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) Each Agent and each Lender that is a “United States person” (within the meaning of Section 7701(a)(30) of the Code)
shall deliver to the Borrower and the Administrative Agent on or prior to the Restatement Effective Date, the Sixth Amendment
Effective Date or the Ninth Amendment Effective Date, as applicable, or, in the case of an Agent or Lender that is an assignee
or transferee of an interest under this Agreement pursuant to subsection 10.6, on the date of such assignment or transfer to such
Agent or Lender, two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor form), in
each case certifying that such Agent or Lender is a “United States person” (within the meaning of Section 7701(a)(30)
of the Code) and to such Agent’s or Lender’s entitlement as of such date to a complete exemption from United States
federal backup withholding tax with respect to payments to be made under this Agreement and under any Note. Each Agent and each
Lender that is not a “United States person” (within the meaning of Section 7701(a)(30) of the Code) shall deliver
to the Borrower and the Administrative Agent on or prior to the Restatement Effective Date, the Sixth Amendment Effective Date
or the Ninth Amendment Effective Date, as applicable, or, in the case of an Agent or Lender that is an assignee or transferee
of an interest under this Agreement pursuant to subsection 10.6, on the date of such assignment or transfer to such Agent or Lender,
(i) two accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN or
W-8BEN-E (claiming the benefits of an income tax treaty) (or successor forms), in each case certifying to such Agent’s
or Lender’s entitlement as of such date to a complete exemption from United States federal withholding tax with respect
to payments to be made under this Agreement and under any Note, (ii) if such Agent or Lender is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form
W-8BEN or W-8BEN-E (claiming the benefits of an income tax treaty) (or successor form) pursuant to clause (i) above, (x)
two certificates substantially in the form of Exhibit D (any such certificate, a “U.S. Tax Compliance Certificate”)
and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (claiming
the benefits of the portfolio interest exemption) (or successor form) certifying to such Agent’s or Lender’s entitlement
as of such date to a complete exemption from United States federal withholding tax with respect to payments of interest to be
made under this Agreement and under any Note or (iii) if such Agent or Lender is a non-U.S. intermediary or flow-through
entity for U.S. federal income tax purposes, two accurate and complete signed copies of Internal Revenue Service Form W-8IMY (and
all necessary attachments, including to the extent applicable, U.S. Tax Compliance Certificates) certifying to such Agent’s
or Lender’s entitlement as of such date to a complete exemption from United States federal withholding tax with respect
to payments to be made under this Agreement and under any Note. In addition, each Agent and Lender agrees that from time to time
after the Restatement Effective Date, when the passage of time or a change in circumstances renders the previous certification
obsolete or inaccurate, such Agent or Lender shall deliver to the Borrower and the Administrative Agent two new accurate and complete
original signed copies of Internal Revenue Service Form W-9, Internal Revenue Service Form W-8ECI, Form W-8BEN or W-8BEN-E
(claiming the benefits of an income tax treaty), or Form W-8BEN or W-8BEN-E (claiming the benefits of the portfolio interest
exemption) and a U.S. Tax Compliance Certificate, or Form W-8IMY (with respect to a non-U.S. intermediary or flow-through entity),
as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Agent or
Lender to a continued exemption from United States withholding tax with respect to payments under this Agreement and any Note;
unless, in each case, (1) there has been a Change in Law that occurs after the later of the Restatement Effective Date
and the date such Agent or Lender becomes an Agent or Lender hereunder (or after the date the relevant beneficiary or member in
the case of a Lender that is a non-U.S. intermediary or flow through entity for U.S. federal income tax purposes becomes a beneficiary
or member, if later) which renders all such forms inapplicable or which would prevent such Agent or Lender from duly completing
and delivering any such form with respect to it, in which case such Agent or Lender shall promptly notify the Borrower and the
Administrative Agent of its inability to deliver any such form or (2) such Person that is an assignee whose assignor was
entitled to receive additional amounts with respect to payments made by the Borrower, at the time such assignment was effective,
as a result of Change in Law that occurred after the Restatement Effective Date and such assignee is subject to the same Change
in Law with respect to payments from the Borrower, provided that in no event shall such additional amounts under
this clause (2) exceed the additional amounts that the assignor was entitled to receive at the time such assignment was effective.
(c) Each Agent and Lender shall, upon request by the Borrower, deliver to the Borrower or the applicable Governmental Authority, as
the case may be, any form or certificate required in order that any payment by the Borrower under this Agreement or any Note to
such Agent or Lender may be made free and clear of, and without deduction or withholding for or on account of any Non-Excluded
Taxes (or to allow any such deduction or withholding to be at a reduced rate), provided that such Agent or Lender
is legally entitled to complete, execute and deliver such form or certificate. Each Person that shall become a Lender or a Participant
pursuant to subsection 10.6 shall, upon the effectiveness of the related transfer, be required to provide all of the forms, certifications
and statements pursuant to this subsection 3.11, provided that in the case of a Participant the obligations of such
Participant pursuant to subsection 3.11(b) or this subsection 3.11(c) shall be determined as if such Participant were a Lender
except that such Participant shall furnish all such required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
3.12 Indemnity. The Borrower agrees to indemnify each Lender and to hold each such Lender harmless from any loss or expense
which such Lender may sustain or incur (other than through such Lender’s bad faith, gross negligence or willful misconduct
as determined by a court of competent jurisdiction in a final nonappealable decision) as a consequence of (a) default by the Borrower
in making a borrowing of, conversion into or continuation of Term SOFR Loans after the Borrower has given a notice requesting
the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment or conversion
of Term SOFR Loans after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the
making of a payment or prepayment of Term SOFR Loans or the conversion of Term SOFR Loans on a day which is not the last day of
an Interest Period with respect thereto. If any Lender becomes entitled to claim any amounts under the indemnity contained in
this subsection 3.12, it shall provide prompt notice thereof to the Borrower, through the Administrative Agent, certifying (x)
that one of the events described in clause (a), (b) or (c) above has occurred and describing in reasonable detail the nature of
such event, (y) as to the loss or expense sustained or incurred by such Lender as a consequence thereof and (z) as to the amount
for which such Lender seeks indemnification hereunder and a reasonably detailed explanation of the calculation thereof. Such a
certificate as to any indemnification pursuant to this subsection 3.12 submitted by such Lender, through the Administrative Agent,
to the Borrower shall be conclusive in the absence of manifest error. This subsection 3.12 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
3.13 Certain Rules Relating to the Payment of Additional Amounts.
(a) Upon the request, and at the expense, of the Borrower, each Agent and Lender to which the Borrower is required to pay any additional
amount pursuant to subsection 3.10 or 3.11, and any Participant in respect of whose participation such payment is required, shall
reasonably afford the Borrower the opportunity to contest, and reasonably cooperate with the Borrower in contesting, the imposition
of any Tax giving rise to such payment; provided that (i) such Agent or Lender shall not be required to afford
the Borrower the opportunity to so contest unless the Borrower shall have confirmed in writing to such Agent or Lender its obligation
to pay such amounts pursuant to this Agreement and (ii) the Borrower shall reimburse such Agent or Lender for its reasonable
attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the Borrower in contesting the
imposition of such Tax; provided, however, that notwithstanding the foregoing no Agent or Lender shall
be required to afford the Borrower the opportunity to contest, or cooperate with the Borrower in contesting, the imposition of
any such Taxes, if such Agent or Lender in its sole discretion in good faith determines that to do so would have an adverse effect
on it.
(b) If a Lender changes its applicable lending office (other than (i) pursuant to subsection 3.13(c) or (ii) after an Event
of Default under subsection 8(a) or 8(f) has occurred and is continuing) and the effect of such change, as of the date of such
change, would be to cause the Borrower to become obligated to pay any additional amount under subsection 3.10 or 3.11, the Borrower
shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of
any additional amount to any Lender by the Borrower pursuant to subsection 3.10 or 3.11, such Lender shall promptly after becoming
aware of such event or condition notify the Borrower and the Administrative Agent and shall take such steps as may reasonably
be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Loans held by
such Lender, at another lending office, or through another branch or an affiliate, of such Lender); provided that
such Lender shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its
business or operations or would require it to incur additional costs (unless the Borrower agrees to reimburse such Lender for
the reasonable incremental out-of-pocket costs thereof).
(d) If the Borrower shall become obligated to pay additional amounts pursuant to subsection 3.10 or 3.11 and any affected Lender shall
not have promptly taken steps necessary to avoid the need for payments under subsection 3.10 or 3.11, the Borrower shall have
the right, for so long as such obligation remains, (i) with the assistance of the Administrative Agent, to seek one or more substitute
Lenders reasonably satisfactory to the Administrative Agent and the Borrower to purchase the affected Loan, in whole or in part,
at an aggregate price no less than such Loan’s principal amount plus accrued interest, and assume the affected obligations
under this Agreement, or (ii) so long as no Default or Event of Default then exists or will exist immediately after giving
effect to the respective prepayment, upon at least four Business Days’ (or such shorter period as may be agreed to by the
Administrative Agent in its reasonable discretion) irrevocable notice to the Administrative Agent, to prepay the affected Loan,
in whole or in part, subject to subsection 3.12, without premium or penalty. In the case of the substitution of a Lender, the
Borrower, the Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately
completed Assignment and Acceptance pursuant to subsection 10.6(b) to effect the assignment of rights to, and the assumption of
obligations by, the substitute Lender; provided that any fees required to be paid by subsection 10.6(b) in connection
with such assignment shall be paid by the Borrower or the substitute Lender. In the case of a prepayment of an affected Loan,
the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest
to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Loan,
the Borrower shall first pay the affected Lender any additional amounts owing under subsections 3.10 and 3.11 (as well as any
commitment fees and other amounts then due and owing to such Lender, including any amounts under this subsection 3.13) prior to
such substitution or prepayment. In the case of the substitution of a Lender, if the Lender being replaced does not execute and
deliver to the Administrative Agent a duly completed Assignment and Acceptance and/or any other documentation necessary to reflect
such replacement by the later of (a) the date on which the assignee Lender executes and delivers such Assignment and Acceptance
and/or such other documentation and (b) the date as of which all obligations of the Borrower owing to such replaced Lender
relating to the Loans so assigned shall be paid in full by the assignee Lender to such Lender being replaced, then the Lender
being replaced shall be deemed to have executed and delivered such Assignment and Acceptance and/or such other documentation as
of such date and the Borrower shall be entitled (but not obligated) to execute and deliver such Assignment and Acceptance and/or
such other documentation on behalf of such Lender.
(e) If any Agent or Lender receives a refund directly attributable to Taxes for which the Borrower has made additional payments pursuant
to subsection 3.10(a) or 3.11(a), such Agent or such Lender, as the case may be, shall promptly pay such refund (together with
any interest with respect thereto received from the relevant taxing authority, but net of any reasonable cost incurred in connection
therewith) to the Borrower; provided, however, that the Borrower agrees promptly to return such refund
(together with any interest with respect thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes) to such
Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the
relevant taxing authority.
(f) The obligations of any Agent, Lender or Participant under this subsection 3.13 shall survive the termination of this Agreement
and the payment of the Loans and all amounts payable hereunder.
SECTION
4 REPRESENTATIONS AND WARRANTIES.
To
induce the Administrative Agent and each Lender to make the Extensions of Credit requested to be made by it on the Restatement
Effective Date and on each Borrowing Date thereafter, the Borrower hereby represents and warrants, on the Restatement Effective
Date, after giving effect to the Transactions, and on every Borrowing Date thereafter, to the Administrative Agent and each Lender
that:
4.1 Financial Condition. The audited consolidated balance sheets of Holding and its consolidated Subsidiaries as of January
2, 2016 and December 27, 2014 and the consolidated statements of operations, shareholders’ equity and cash flows of Holding
and its consolidated Subsidiaries for the fiscal years ended January 2, 2016, December 27, 2014 and December 28, 2013, reported
on by and accompanied by unqualified reports from Deloitte & Touche LLP, present fairly, in all material respects, the consolidated
financial condition as at such date, and the consolidated results of operations and consolidated cash flows for the respective
fiscal years then ended, of Holding and its consolidated Subsidiaries. All such financial statements, including the related schedules
and notes thereto, have been prepared in accordance with GAAP consistently applied throughout the periods covered thereby (except
as approved by a Responsible Officer of Holding, and disclosed in any such schedules and notes, and subject to the omission of
footnotes from such unaudited financial statements).
4.2 Solvent.
(a) As of the Restatement Effective Date, after giving effect to the consummation of the Transactions, the Borrower is Solvent.
(b) Since April 2, 2016, there has not been any event, change, circumstance or development which, individually or in the aggregate,
has had or would reasonably be expected to have, a Material Adverse Effect (after giving effect to (i) the consummation
of the Transactions, (ii) the making of the Extensions of Credit to be made on the Restatement Effective Date and the application
of the proceeds thereof as contemplated hereby, and (iii) the payment of actual or estimated fees, expenses, financing
costs and tax payments related to the Transactions contemplated hereby).
4.3 Corporate Existence; Compliance with Law. Each of the Loan Parties (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation except (other than with respect to the Borrower),
to the extent that the failure to be organized, existing and in good standing would not reasonably be expected to have a Material
Adverse Effect, (b) has the corporate or other organizational power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, except to
the extent that the failure to have such legal right would not be reasonably expected to have a Material Adverse Effect, (c) is
duly qualified as a foreign corporation or a limited liability company and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its business requires such qualification, other than in
such jurisdictions where the failure to be so qualified and in good standing would not be reasonably expected to have a Material
Adverse Effect and (d) is in compliance with all Requirements of Law, except to the extent that the failure to comply therewith
would not, in the aggregate, be reasonably expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. Each Loan Party has the corporate or other organizational power
and authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a party and, in the case of
the Borrower, to obtain Extensions of Credit hereunder, and each such Loan Party has taken all necessary corporate or other organizational
action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the
Borrower, to authorize the Extensions of Credit to it, if any, on the terms and conditions of this Agreement and any Notes. No
consent or authorization of, filing with, notice to or other similar act by or in respect of, any Governmental Authority or any
other Person is required to be obtained or made by or on behalf of any Loan Party in connection with the execution, delivery,
performance, validity or enforceability of the Loan Documents to which it is a party or, in the case of the Borrower, with the
Extensions of Credit to it, if any, hereunder, except for (a) consents, authorizations, notices and filings described in Schedule
4.4, all of which have been obtained or made prior to or on the Restatement Effective Date, (b) filings to perfect the Liens created
by the Security Documents, (c) filings pursuant to the Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et
seq.), in respect of Accounts of the Borrower and its Restricted Subsidiaries the Obligor in respect of which is the United States
of America or any department, agency or instrumentality thereof and (d) consents, authorizations, notices and filings which the
failure to obtain or make would not reasonably be expected to have a Material Adverse Effect. This Agreement has been duly executed
and delivered by the Borrower, and each other Loan Document to which any Loan Party is a party will be duly executed and delivered
on behalf of such Loan Party. This Agreement constitutes a legal, valid and binding obligation of the Borrower and each other
Loan Document to which any Loan Party is a party when executed and delivered will constitute a legal, valid and binding obligation
of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as enforceability may be limited
by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity
or at law).
4.5 No Legal Bar. The execution, delivery and performance of the Loan Documents by any of the Loan Parties, the Extensions
of Credit hereunder and the use of the proceeds thereof (a) will not violate any Requirement of Law or Contractual Obligation
of such Loan Party in any respect that would reasonably be expected to have a Material Adverse Effect and (b) will not result
in, or require, the creation or imposition of any Lien (other than Permitted Liens) on any of its properties or revenues pursuant
to any such Requirement of Law or Contractual Obligation.
4.6 No Material Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority
is pending or, to the knowledge of the Borrower, threatened by or against the Borrower or any of its Restricted Subsidiaries or
against any of their respective properties or revenues, which would be reasonably expected to have a Material Adverse Effect.
4.7 Ownership of Property; Liens. Each of the Borrower and its Restricted Subsidiaries has good title in fee simple to, or
a valid leasehold interest in, all its material real property, and good title to, or a valid leasehold interest in, all its other
material property, except where the failure to have such title would not reasonably be expected to have a Material Adverse Effect.
4.8 Intellectual Property. The Borrower and its Restricted Subsidiaries own, or have the legal right to use, all United States
patents, patent applications, trademarks, trademark applications, trade names, copyrights, technology, know-how and processes
necessary for each of them to conduct its business substantially as currently conducted (the “Intellectual Property”)
except for those the failure to own or have such legal right to use would not be reasonably expected to have a Material Adverse
Effect.
4.9 Taxes. To the knowledge of the Borrower, each of the Borrower and its Restricted Subsidiaries has filed or caused to be
filed all United States federal income tax returns and all other material tax returns that are required to be filed by it and
has paid (a) all taxes shown to be due and payable on such returns and (b) all taxes shown to be due and payable on any assessments
of which it has received notice made against it or any of its property and all other taxes, fees or other charges imposed on it
or any of its property by any Governmental Authority (other than any (i) taxes, fees or other charges with respect to which the
failure to pay, in the aggregate, would not have a Material Adverse Effect or (ii) taxes, fees or other charges the amount or
validity of which are currently being contested in good faith by appropriate proceedings diligently conducted and with respect
to which reserves in conformity with GAAP have been provided on the books of the Borrower or its Restricted Subsidiaries, as the
case may be).
4.10 Federal Regulations. No part of the proceeds of any Extensions of Credit will be used for any purpose that violates the
provisions of the Regulations of the Board, including Regulation T, Regulation U or Regulation X of the Board.
4.11 ERISA.
(a) With respect to any Plan (or, with respect to (vi) or (viii) below, as of the date such representation is made or deemed made),
none of the following events or conditions exists, has occurred, or is reasonably expected to occur, which either individually
or in the aggregate, would reasonably be expected to result in a Material Adverse Effect: (i) a Reportable Event; (ii)
an “accumulated funding deficiency” (within the meaning of Section 412 of the Code or Section 302 of ERISA); (iii)
any noncompliance with the applicable provisions of ERISA or the Code; (iv) a termination of a Single Employer Plan (other
than a standard termination pursuant to Section 4041(b) of ERISA); (v) a Lien on the property of the Borrower or its Restricted
Subsidiaries in favor of the PBGC or a Plan; (vi) any Underfunding with respect to any Single Employer Plan; (vii)
a complete or partial withdrawal from any Multiemployer Plan by the Borrower or any Commonly Controlled Entity; (viii)
any liability of the Borrower or any Commonly Controlled Entity under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the annual valuation date most closely preceding the date on which
this representation is made or deemed made; (ix) the Reorganization or Insolvency of any Multiemployer Plan; or (x)
any transactions that resulted or could reasonably be expected to result in any liability to the Borrower or any Commonly Controlled
Entity under Section 4069 of ERISA or Section 4212(c) of ERISA; provided that the representation made in clauses
(ii) and (ix) of this subsection 4.11(a) with respect to a Multiemployer Plan is based on knowledge of the Borrower.
(b) With respect to any Foreign Plan, none of the following events or conditions exists, has occurred, or is reasonably expected to
occur, which either individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect: (i)
substantial noncompliance with its terms and with the requirements of any and all applicable laws, statutes, rules, regulations
and orders; (ii) failure to be maintained, where required, in good standing with applicable regulatory authorities; (iii)
any obligation of the Borrower or its Restricted Subsidiaries in connection with the termination or partial termination of, or
withdrawal from, any Foreign Plan; (iv) any Lien on the property of the Borrower or its Restricted Subsidiaries in favor
of a Governmental Authority as a result of any action or inaction regarding a Foreign Plan; (v) for each Foreign Plan that
is a funded or insured plan, failure to be funded or insured on an ongoing basis to the extent required by applicable non-U.S.
law (using actuarial methods and assumptions which are consistent with the valuations last filed with the applicable Governmental
Authorities); (vi) any facts that, to the best knowledge of the Borrower and its Restricted Subsidiaries, exist that would
reasonably be expected to give rise to a dispute and any pending or threatened disputes that, to the best knowledge of the Borrower
and its Restricted Subsidiaries, would reasonably be expected to result in a material liability to the Borrower or any of its
Restricted Subsidiaries concerning the assets of any Foreign Plan (other than individual claims for the payment of benefits);
and (vii) failure to make all contributions in a timely manner to the extent required by applicable non-U.S. law.
4.12 Collateral. The Guarantee and Collateral Agreement is effective to create (to the extent described therein) in favor of
the Collateral Agent for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral
described therein, except as may be limited by applicable domestic or foreign bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. When (a) the actions specified
in Schedule 3 to the Guarantee and Collateral Agreement have been duly taken, (b) all applicable Instruments, Chattel Paper and
Documents (each as described therein) a security interest in which is perfected by possession have been delivered to, and/or are
in the continued possession of, the Collateral Agent, and (c) all Electronic Chattel Paper and Pledged Stock (each as defined
in the Guarantee and Collateral Agreement) a security interest in which is required to be or is perfected by “control”
(as described in the UCC) are under the “control” of the Collateral Agent or the Administrative Agent, as agent for
the Collateral Agent and as directed by the Collateral Agent, the security interests granted pursuant thereto shall constitute
(to the extent described therein) a perfected security interest in, all right, title and interest of each pledgor party thereto
in the Collateral described therein (excluding Commercial Tort Claims, as defined in the Guarantee and Collateral Agreement, other
than such Commercial Tort Claims set forth on Schedule 7 thereto (if any)) with respect to such pledgor. Notwithstanding any other
provision of this Agreement, capitalized terms that are used in this subsection 4.12 and not defined in this Agreement are so
used as defined in the applicable Security Document.
4.13 Investment Company Act. The Borrower is not an “investment company” within the meaning of the Investment Company
Act.
4.14 Subsidiaries. Schedule 4.14 sets forth all the Subsidiaries of the Borrower at the Restatement Effective Date, the jurisdiction
of their organization and the direct or indirect ownership interest of the Borrower therein.
4.15 Purpose of Term Loans. The proceeds of the (i) Initial Term Loans made on the Restatement Effective Date shall not be used
by the Borrower for any purpose other than (a) to fund all or a portion of the Transactions and (b) for general corporate purposes,
(ii) Incremental B-2019 Term Loans made on the Sixth Amendment Effective Date shall not be used by the Borrower for any purpose
other than (a) to pay the purchase price in connection with the Sixth Amendment Acquisition, (b) to finance the Sixth Amendment
Refinancing and (c) to pay the Sixth Amendment Transaction Costs and (iii) Incremental B-2021 Term Loans made on the NinthEleventh
Amendment Effective
Date shall not be used by the Borrower for any purpose other than (a) to prepay InitialExisting
Term Loans
(as defined in the Eleventh Amendment)
and (b) to pay fees,
costs and expenses incurred in connection therewith and in connection with the incurrence of the Incremental B-2021 Term Loans.
4.16 Environmental Matters. Other than as disclosed on Schedule 4.16 or exceptions to any of the following that would not, individually
or in the aggregate, reasonably be expected to give rise to a Material Adverse Effect:
(a) the Borrower and its Restricted Subsidiaries are in compliance with all Environmental Laws and Environmental Permits and all such
permits are in full force and effect;
(b) Materials of Environmental Concern are not present at, and have not been at, under or from any real property presently or formerly
owned, leased or operated by the Borrower or any of its Restricted Subsidiaries or at any other location, in a manner or amount
which would reasonably be expected to give rise to liability or other Environmental Costs of the Borrower or any of its Restricted
Subsidiaries under any applicable Environmental Law;
(c) there is no judicial, administrative, or arbitral proceeding (including any notice of violation or alleged violation) under any
Environmental Law to which the Borrower or any of its Restricted Subsidiaries, or to the knowledge of the Borrower or any of its
Restricted Subsidiaries is reasonably likely to be, named as a party that is pending or, to the knowledge of the Borrower or any
of its Restricted Subsidiaries, threatened;
(d) neither the Borrower nor its Restricted Subsidiaries are conducting or financing any investigation, removal, remedial or other
corrective action pursuant to any Environmental Law;
(e) neither the Borrower nor its Restricted Subsidiaries has treated, stored, used, handled, transported, Released, disposed or arranged
for disposal or transport for disposal of Materials of Environmental Concern at, on, under or from any currently or formerly owned
or leased real property; and
(f) neither the Borrower nor any of its Restricted Subsidiaries has entered into or agreed to any consent decree, order, or settlement
or other agreement, nor is subject to any judgment, decree, or order or other agreement, in any judicial, administrative, arbitral,
or other forum, relating to compliance with or liability under any Environmental Law.
4.17 No Material Misstatements. The written factual information, reports, financial statements, exhibits and schedules concerning
the Loan Parties furnished by or on behalf of the Borrower to the Administrative Agent, the Lead Arrangers and the Lenders in
connection with the negotiation of any Loan Document or included therein or delivered pursuant thereto, taken as a whole, did
not contain as of the Restatement Effective Date any material misstatement of fact and did not omit to state, as of the Restatement
Effective Date, any material fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not materially misleading in their presentation of the Borrower and its Restricted Subsidiaries taken as a whole. It
is understood that (a) no representation or warranty is made concerning the forecasts, estimates, pro forma information, projections
and statements as to anticipated future performance or conditions, and the assumptions on which they were based, or concerning
any information of a general economic nature or general information about the Borrower’s and its Subsidiaries’ industry,
contained in any such information, reports, financial statements, exhibits or schedules except that, in the case of such forecasts,
estimates, pro forma information, projections and statements, as of the date such forecasts, estimates, pro forma information,
projections and statements were generated, (i) such forecasts, estimates, pro forma information, projections and statements were
based on the good faith assumptions of the management of the Borrower and (ii) such assumptions were believed by such management
to be reasonable and (b) such forecasts, estimates, pro forma information and statements, and the assumptions on which they were
based, may or may not prove to be correct.
4.18 Anti-Terrorism. To the extent applicable, except as would not reasonably be expected to have a Material Adverse Effect,
the Borrower and each Restricted Subsidiary is in compliance with (i) the PATRIOT Act, (ii) the Trading with the Enemy Act, as
amended and (iii) any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”)
and any other enabling legislation or executive order relating thereto. Neither any Loan Party nor, except as would not reasonably
be expected to have a Material Adverse Effect, (i) any Restricted Subsidiary that is not a Loan Party or (ii) to the knowledge
of the Borrower, any director, officer or employee of the Borrower or any Restricted Subsidiary, is the target of any U.S. sanctions
administered by OFAC or a person on the list of “Specially Designated Nationals and Blocked Persons”. None of the
Borrower or any Restricted Subsidiary will knowingly use the proceeds of the Loans for the purpose of funding or financing any
activities or business of or with any Person that at the time of such funding or financing is either the target of any U.S. sanctions
administered by OFAC or a person on the list of “Specially Designated Nationals and Blocked Persons” in violation
of any such sanctions.
SECTION
5 [RESERVED].
SECTION
6 AFFIRMATIVE COVENANTS.
The
Borrower hereby agrees that, from and after the Restatement Effective Date, and thereafter until payment in full of the Loans
and any other amount then due and owing to any Lender or any Agent hereunder and under any Note, the Borrower shall and (except
in the case of delivery of financial information, reports and notices) shall cause each of its Material Restricted Subsidiaries
to:
6.1 Financial Statements. Furnish to the Administrative Agent for delivery to each Lender (and the Administrative Agent agrees
to make and so deliver such copies):
(a) as soon as available, but in any event not later than the date that is 105 days after the end of each fiscal year of the Borrower
ending on or after December 31, 2017 (or such longer period as would be permitted by the SEC if the Borrower (or, any Parent whose
financial statements satisfy the Borrower’s reporting obligations under this covenant) were then subject to SEC reporting
requirements as a non-accelerated filer), a copy of the consolidated balance sheet of the Borrower and its consolidated Subsidiaries
as at the end of such year and the related consolidated statements of operations and cash flows for such year, setting forth in
each case, in comparative form the figures for and as of the end of the previous year, reported on without a “going concern”
or like qualification or exception, or qualification arising out of the scope of the audit (provided that such report
may contain a “going concern” or like qualification or exception, or qualification arising out of the scope of the
audit, if such qualification or exception is related solely to an upcoming Maturity Date hereunder or under the ABL Facility,
the Senior Notes or other Indebtedness), by Deloitte & Touche LLP or other independent certified public accountants of nationally
recognized standing, together with a management’s discussion and analysis of financial information (which need not be prepared
in accordance with Item 303 of Regulation S-K of the Securities Act);
(b) as soon as available, but in any event not later than the date that is 60 days after the end of each of the first three quarterly
periods of each fiscal year of the Borrower (or such longer period as would be permitted by the SEC if the Borrower (or, any Parent
whose financial statements satisfy the Borrower’s reporting obligations under this covenant) were then subject to SEC reporting
requirements as a non-accelerated filer), the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries
as at the end of such quarter and the related unaudited consolidated statements of operations and cash flows of the Borrower and
its consolidated Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, setting forth
in each case, in comparative form the figures for and as of the corresponding periods of the previous year, certified by a Responsible
Officer of the Borrower as provided below, together with a management’s discussion and analysis of financial information
(which need not be prepared in accordance with Item 303 of Regulation S-K of the Securities Act); and
(c) to the extent applicable, concurrently with any delivery of consolidated financial statements under subsection 6.1(a) or 6.1(b),
related unaudited condensed consolidating financial statements reflecting the material adjustments necessary (as determined by
the Borrower in good faith) to eliminate the accounts of Unrestricted Subsidiaries (if any) from the accounts of the Borrower
and its Restricted Subsidiaries,
all
such financial statements delivered pursuant to subsection 6.1(a) or 6.1(b) to (and, in the case of any financial statements delivered
pursuant to subsection 6.1(b), shall be certified by a Responsible Officer of the Borrower to) fairly present in all material
respects the financial condition of the Borrower and its Subsidiaries in conformity with GAAP and to be (and, in the case of any
financial statements delivered pursuant to subsection 6.1(b) shall be certified by a Responsible Officer of the Borrower as being)
prepared in reasonable detail in accordance with GAAP applied consistently throughout the periods reflected therein and with prior
periods that began on or after the Restatement Effective Date (except as disclosed therein, and except, in the case of any financial
statements delivered pursuant to subsection 6.1(b), for the absence of certain notes).
The
Borrower’s obligations under subsections 6.1(a) and 6.1(b), at the Borrower’s option, may be satisfied, and shall
be deemed to have been satisfied, (x) in the case of subsection 6.1(a) with respect to any year (including with respect
to the requirement that such financial statements be reported on without a “going concern” or like qualification or
exception, or qualification arising out of the scope of the audit, so long as the report included in such Form 10-K does not contain
any “going concern” or like qualification or exception (other than a “going concern” or like qualification
or exception with respect to an upcoming Maturity Date hereunder)), by the furnishing of the Borrower’s or any Parent’s
annual report on Form 10-K for such year as filed with the SEC, and (y) in the case of subsection 6.1(b) with respect to
any quarter, by the furnishing of the Borrower’s or any Parent’s quarterly report on Form 10-Q for such quarter as
filed with the SEC; provided that, in the case of the furnishing of the reports of a Parent pursuant to clauses
(x) and (y) above, such reports shall be accompanied by information describing the non-equity differences between the financial
information relating to such Parent and its Subsidiaries, on the one hand, and the financial information relating to the Borrower
and its Subsidiaries, on the other hand, which information may be in a form substantially consistent with the disclosure of such
differences included in the Offering Memorandum, dated June 13, 2016, relating to the Senior Notes (as determined by the Borrower
in good faith, which determination shall be conclusive) and for the avoidance of doubt need not be audited or compliant with Regulation
S-X.
6.2 Certificates; Other Information. Furnish to the Administrative Agent for delivery to each Lender (and the Administrative
Agent agrees to make and so deliver such copies):
(a) concurrently with the delivery of the financial statements and reports referred to in subsections 6.1(a) and 6.1(b), a certificate
signed by a Responsible Officer of the Borrower (i) stating that, to the best of such Responsible Officer’s knowledge, the
Borrower and its Subsidiaries during such period has observed or performed all of its covenants and other agreements, and satisfied
every condition, contained in this Agreement or the other Loan Documents to which it is a party to be observed, performed or satisfied
by it, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default, except, in each case, as
specified in such certificate and (ii) [reserved];
(b) [reserved];
(c) within five Business Days after the same are filed, copies of all financial statements and periodic reports which the Borrower
may file with the SEC or any successor or analogous Governmental Authority;
(d) within five Business Days after the same are filed, copies of all registration statements and any amendments and exhibits thereto,
which the Borrower may file with the SEC or any successor or analogous Governmental Authority; and
(e) subject to the last sentence of subsection 6.6, promptly, such additional financial and other information as the Administrative
Agent may reasonably request in writing from time to time.
Documents
required to be delivered pursuant to subsection 6.1 or this subsection 6.2 may at the Borrower’s option be delivered electronically
and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents,
or provides a link thereto on the Borrower’s (or Holding’s or any Parent’s) website on the Internet at the website
address listed on Schedule 6.2 (or such other website address as the Borrower may specify by written notice to the Administrative
Agent from time to time); or (ii) on which such documents are posted on the Borrower’s (or Holding’s or any
Parent’s) behalf on an Internet or intranet website to which each Lender and the Administrative Agent have access (whether
a commercial, third-party website or whether sponsored by the Administrative Agent). Following the electronic delivery of any
such documents by posting such documents to a website in accordance with the preceding sentence (other than the posting by the
Borrower of any such documents on any website maintained for or sponsored by the Administrative Agent), the Borrower shall notify
the Administrative Agent of such delivery (which notice may be by facsimile or electronic mail) and the electronic location at
which such documents may be accessed; provided that, in the absence of bad faith, the failure to provide such notice
shall not constitute a Default hereunder.
6.3 Payment of Taxes. Pay, discharge or otherwise satisfy at or before they become delinquent, all its material Taxes, except
where the amount or validity thereof is currently being contested in good faith by appropriate proceedings diligently conducted
and reserves in conformity with GAAP with respect thereto have been provided on the books of the Borrower or any of its Restricted
Subsidiaries, as the case may be, and except to the extent that failure to do so, in the aggregate, would not reasonably be expected
to have a Material Adverse Effect.
6.4 Maintenance of Existence. Preserve, renew and keep in full force and effect its corporate or other organizational existence
and take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct
of the business of the Borrower and its Restricted Subsidiaries, taken as a whole, except as otherwise expressly permitted pursuant
to subsection 7.3 or 7.4, provided that the Borrower and its Restricted Subsidiaries shall not be required to maintain
any such rights, privileges or franchises and the Borrower’s Restricted Subsidiaries shall not be required to maintain such
existence, if the failure to do so would not reasonably be expected to have a Material Adverse Effect; and comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply therewith, in the aggregate, would not reasonably
be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. Keep all property useful and necessary in the business of the Loan Parties, taken as
a whole, in good working order and condition, except where failure to do so would not reasonably be expected to have a Material
Adverse Effect; use commercially reasonable efforts to (i) maintain with insurance companies (including any Captive Insurance
Subsidiary) insurance on, or self insure, all property material to the business of the Loan Parties, taken as a whole, in at least
such amounts and against at least such risks (but including in any event public liability and business interruption) as are consistent
with the past practices of the Loan Parties or otherwise as are usually insured against in the same general area by companies
engaged in the same or a similar business, and furnish to the Administrative Agent, upon written request, information in reasonable
detail as to the insurance carried; and (ii) ensure that, subject to any Intercreditor Agreement, at all times on and after the
date that is 30 days after the Restatement Effective Date (or such later date as may be agreed by the Administrative Agent in
its sole discretion) the Collateral Agent, for the benefit of the Secured Parties, shall be named as an additional insured with
respect to liability policies maintained by the Loan Parties and the Collateral Agent, for the benefit of the Secured Parties,
shall be named as loss payee with respect to the property insurance, in each case to the extent insuring the Collateral; provided
that, unless an Event of Default shall have occurred and be continuing, the Collateral Agent shall turn over to the Borrower
any amounts received by it as an additional insured or loss payee under any such property insurance maintained by such Loan Parties
(and, for the avoidance of doubt, any other proceeds from a Recovery Event), the disposition of such amounts to be subject to
the provisions of subsection 3.4(c) to the extent applicable, and, unless an Event of Default shall have occurred and be continuing,
the Collateral Agent agrees that the Borrower and/or the applicable Subsidiary Guarantor shall have the sole right to adjust or
settle any claims under such insurance.
6.6 Inspection of Property; Books and Records; Discussions. Permit representatives of the Administrative Agent to visit and
inspect any of its properties and examine and, to the extent reasonable, make abstracts from any of its books and records and
to discuss the business, operations, properties and financial and other condition of the Borrower and its Restricted Subsidiaries
with officers of the Borrower and its Restricted Subsidiaries and with its independent certified public accountants, in each case
at any reasonable time, upon reasonable notice; provided that (a) except during the continuation of an Event of Default,
only one such visit shall be at the Borrower'’s
expense, and (b) during the continuation of an Event of Default, the Administrative Agent or its representatives may do any of
the foregoing at the Borrower'’s
expense; and provided, further, that representatives of the Borrower may be present during any such visits, discussions
and inspections. Notwithstanding anything to the contrary in Section 6.2(e) or in this Section 6.6, none of the Borrower or any
Restricted Subsidiary will be required to disclose or permit the inspection or discussion of, any document, information or other
matter (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure
to the Administrative Agent or the Lenders (or their respective representatives) is prohibited by Requirement of Law or any binding
agreement or (iii) that is subject to attorney client or similar privilege or constitutes attorney work product.
6.7 Notices. Promptly give notice to the Administrative Agent and each Lender of:
(a) as soon as possible after a Responsible Officer of the Borrower knows thereof, the occurrence of any Default or Event of Default;
(b) as soon as possible after a Responsible Officer of the Borrower knows thereof, any litigation, investigation or proceeding which
may exist at any time between the Borrower or any of its Restricted Subsidiaries and any Governmental Authority, which would reasonably
be expected to be adversely determined, and if adversely determined, as the case may be, would reasonably be expected to have
a Material Adverse Effect;
(c) as soon as possible after a Responsible Officer of the Borrower knows thereof, any litigation or proceeding affecting the Borrower
or any of its Restricted Subsidiaries that would reasonably be expected to have a Material Adverse Effect;
(d) the following events, as soon as possible and in any event within 30 days after a Responsible Officer of the Borrower knows thereof:
(i) the occurrence or expected occurrence of any Reportable Event with respect to any Single Employer Plan, a failure to
make any required contribution to a Single Employer Plan or Multiemployer Plan, the creation of any Lien on the property of the
Borrower or its Restricted Subsidiaries in favor of the PBGC, or a Plan or any withdrawal from, or the full or partial termination,
Reorganization or Insolvency of, any Multiemployer Plan; or (ii) the institution of proceedings or the taking of any other
formal action by the PBGC or the Borrower or any of its Restricted Subsidiaries or any Commonly Controlled Entity or any Multiemployer
Plan which could reasonably be expected to result in the withdrawal from, or the termination, Reorganization or Insolvency of,
any Single Employer Plan or Multiemployer Plan; provided, however, that no such notice will be required
under clause (i) or (ii) above unless the event giving rise to such notice, when aggregated with all other such events under clause
(i) or (ii) above, would be reasonably expected to result in a Material Adverse Effect; and
(e) as soon as possible after a Responsible Officer of the Borrower knows of (i) any Release by the Borrower or any of its
Restricted Subsidiaries of any Materials of Environmental Concern required to be reported under applicable Environmental Laws
to any Governmental Authority, unless the Borrower reasonably determines that the total Environmental Costs arising out of such
would not reasonably be expected to have a Material Adverse Effect; (ii) any condition, circumstance, occurrence or event
not previously disclosed in writing to the Administrative Agent that would reasonably be expected to result in liability or expense
under applicable Environmental Laws, unless the Borrower reasonably determines that the total Environmental Costs arising out
of such condition, circumstance, occurrence or event would not reasonably be expected to have a Material Adverse Effect, or would
not reasonably be expected to result in the imposition of any lien or other material restriction on the title, ownership or transferability
of any facilities and properties owned, leased or operated by the Borrower or any of its Restricted Subsidiaries that would reasonably
be expected to result in a Material Adverse Effect; and (iii) any proposed action to be taken by the Borrower or any of
its Restricted Subsidiaries that would reasonably be expected to subject the Borrower or any of its Restricted Subsidiaries to
any material additional or different requirements or liabilities under Environmental Laws, unless the Borrower reasonably determines
that the total Environmental Costs arising out of such proposed action would not reasonably be expected to have a Material Adverse
Effect.
Each
notice pursuant to this subsection 6.7 shall be accompanied by a statement of a Responsible Officer of the Borrower (and, if applicable,
the relevant Commonly Controlled Entity or Subsidiary) setting forth details of the occurrence referred to therein and stating
what action the Borrower (or, if applicable, the relevant Commonly Controlled Entity or Subsidiary) proposes to take with respect
thereto.
6.8 Environmental Laws. (i) Comply substantially with, and require substantial compliance by all tenants, subtenants, contractors,
and invitees with respect to any property leased or subleased from, or operated by the Borrower or its Restricted Subsidiaries
with, all applicable Environmental Laws including all Environmental Permits and all orders and directions of any Governmental
Authority; (ii) obtain, comply substantially with and maintain any and all Environmental Permits necessary for its operations
as conducted and as planned; and (iii) require that all tenants, subtenants, contractors, and invitees obtain, comply substantially
with and maintain any and all Environmental Permits necessary for their operations as conducted and as planned, with respect to
any property leased or subleased from, or operated by the Borrower or its Restricted Subsidiaries. Noncompliance shall not constitute
a breach of this subsection 6.8, provided that, upon learning of any actual or suspected noncompliance, the Borrower and
any such affected Subsidiary shall promptly undertake reasonable efforts to achieve compliance, and provided, further,
that in any case such noncompliance would not reasonably be expected to have a Material Adverse Effect.
6.9 Addition of Subsidiaries.
(a) With respect to any Wholly Owned Domestic Subsidiary (other than an Excluded Subsidiary) created or acquired (including by reason
of any Foreign Subsidiary Holdco ceasing to constitute same) subsequent to the Restatement Effective Date by the Borrower or any
of its Domestic Subsidiaries (other than an Excluded Subsidiary), promptly notify the Administrative Agent of such occurrence
and, if the Administrative Agent or the Required Lenders so request, promptly (i) execute and deliver to the Collateral
Agent for the benefit of the Secured Parties such amendments to the Guarantee and Collateral Agreement as the Collateral Agent
shall reasonably deem necessary or reasonably advisable to grant to the Collateral Agent, for the benefit of the Secured Parties,
a perfected security interest (as and to the extent provided in the Guarantee and Collateral Agreement) in the Capital Stock of
such new Domestic Subsidiary, (ii) subject to the terms of the Intercreditor Agreement, deliver to the Collateral Agent
or the Secured Party Representative (as bailee for perfection on behalf of the Collateral Agent) the certificates (if any) representing
such Capital Stock, together with undated stock powers, executed and delivered in blank by a duly authorized officer of the parent
of such new Domestic Subsidiary and (iii) cause such new Domestic Subsidiary (A) to become a party to the Guarantee
and Collateral Agreement and (B) to take all actions reasonably deemed by the Collateral Agent to be necessary or advisable
to cause the Lien created by the Guarantee and Collateral Agreement in such new Domestic Subsidiary’s Collateral to be duly
perfected in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions
as may be reasonably requested by the Collateral Agent.
(b) (x) With respect to any Foreign Subsidiary or Unrestricted Subsidiary (other than an Excluded Subsidiary) created or acquired
subsequent to the Restatement Effective Date by the Borrower or any of its Domestic Subsidiaries (other than an Excluded Subsidiary),
the Capital Stock of which is owned directly by the Borrower or any of its Domestic Subsidiaries (other than an Excluded Subsidiary),
promptly notify the Administrative Agent of such occurrence and if the Administrative Agent or the Required Lenders so request
(it being understood that if the Administrative Agent does not so request with respect to any such Foreign Subsidiary or Unrestricted
Subsidiary that it believes is or is likely to become material to the Borrower and its Restricted Subsidiaries taken as a whole,
it will provide notice to the Lenders thereof), promptly (i) execute and deliver to the Collateral Agent a new pledge agreement
or such amendments to the Guarantee and Collateral Agreement as the Collateral Agent shall reasonably deem necessary or reasonably
advisable to grant to the Collateral Agent, for the benefit of the Lenders, a perfected security interest (as and to the extent
provided in the Guarantee and Collateral Agreement) in the Capital Stock of such new Foreign Subsidiary or Unrestricted Subsidiary
that is directly owned by the Borrower or any of its Domestic Subsidiaries (other than an Excluded Subsidiary) (provided
that in no event shall more than 65.0% of the Capital Stock of any such new Foreign Subsidiary that is so owned be required
to be so pledged and, provided, further, that no such pledge or security shall be required with respect
to any non-wholly owned Foreign Subsidiary or Unrestricted Subsidiary to the extent that the grant of such pledge or security
interest would violate the terms of any agreements under which the Investment by the Borrower or any of its Subsidiaries was made
therein) and (ii) subject to the terms of the Intercreditor Agreement, to the extent reasonably deemed advisable by the
Collateral Agent, deliver to the Collateral Agent or the Secured Party Representative (as bailee for perfection on behalf of the
Collateral Agent) the certificates, if any, representing such Capital Stock, together with undated stock powers, executed and
delivered in blank by a duly authorized officer of the parent of such new Foreign Subsidiary or Unrestricted Subsidiary and take
such other action as may be reasonably deemed by the Collateral Agent to be necessary or desirable to perfect the Collateral Agent’s
security interest therein.
(c) At its own expense, execute, acknowledge and deliver, or cause the execution, acknowledgement and delivery of, and thereafter
register, file or record in an appropriate governmental office, any document or instrument reasonably deemed by the Collateral
Agent to be necessary or desirable for the creation, perfection and priority and the continuation of the validity, perfection
and priority of the foregoing Liens or any other Liens created pursuant to the Security Documents.
(d) Notwithstanding anything to the contrary in this Agreement, nothing in this subsection 6.9 shall require that any Loan Party grant
a Lien with respect to any owned real property or fixtures in which such Subsidiary acquires ownership rights to the extent that
the Administrative Agent, in its reasonable judgment, determines that the granting of such a Lien is impracticable.
SECTION
7 NEGATIVE COVENANTS.
The
Borrower hereby agrees that, from and after the Restatement Effective Date, and thereafter until payment in full of the Loans
and any other amount then due and owing to any Lender or any Agent hereunder and under any Note:
7.1 Limitation on Indebtedness.
(a) The Borrower will not, and will not permit any Material Restricted Subsidiary to, Incur any Indebtedness; provided,
however, that (x) the Borrower or any Material Restricted Subsidiary may Incur Indebtedness if on the date
of the Incurrence of such Indebtedness, after giving effect to the Incurrence thereof, the Consolidated Coverage Ratio would be
equal to or greater than 2.00:1.00 and (y) the aggregate principal amount of Indebtedness Incurred pursuant to the preceding
clause (x) by Restricted Subsidiaries that are not Loan Parties shall not exceed the greater of $300.0 million and 7.0% of Consolidated
Tangible Assets at any time outstanding.
(b) Notwithstanding the foregoing paragraph (a), the Borrower and its Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness Incurred pursuant to any Credit Facility (including, but not limited to, in respect of letters of credit or bankers’
acceptances issued or created thereunder) and Indebtedness Incurred other than pursuant to any Credit Facility, and (without limiting
the foregoing), in each case, any Refinancing Indebtedness in respect thereof, either (I) in a maximum principal amount
at any time outstanding not exceeding in the aggregate the amount equal to (A) $3,200.0 million, plus (B)
the amount equal to the greater of (x) $1,300.0 million and (y) an amount equal to (1) the Borrowing Base
less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Entities that are Restricted
Subsidiaries and then outstanding pursuant to subsection 7.1(b)(ix), plus (C) in the event of any refinancing of
any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including
accrued and unpaid interest) Incurred or payable in connection with such refinancing or (II) in an unlimited amount, if
on the date of the Incurrence of such Indebtedness (other than any such Refinancing Indebtedness), after giving effect to such
Incurrence (or, at the Borrower’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive
agreement providing the commitment to fund such Indebtedness after giving pro forma effect to the Incurrence of the entire committed
amount of such Indebtedness (such committed amount, a “Ratio Tested Committed Amount”), in which case such
Ratio Tested Committed Amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further
compliance with this clause) the Consolidated Secured Leverage Ratio would be equal to or less than 4.75:1.00; and (in the case
of this subclause (II)) any Refinancing Indebtedness with respect to any such Indebtedness (or unutilized commitment);
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower or (B) of the Borrower or any Restricted Subsidiary
to any Restricted Subsidiary; provided that, in the case of this subsection 7.1(b)(ii), any subsequent issuance
or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results
in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except
to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof
not permitted by this subsection 7.1(b)(ii);
(iii) Indebtedness represented by the Senior Notes issued on the Restatement Effective Date (and any Senior Notes issued in respect
thereof or in exchange therefor), any Indebtedness (other than the Indebtedness under the Senior Credit Facilities described in
subsection 7.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Restatement Effective Date and any
Refinancing Indebtedness Incurred in respect of any Indebtedness (or unutilized commitments) described in this subsection 7.1(b)(iii)
or subsection 7.1(a);
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto;
provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the acquisition
of Capital Stock of any Person at any time outstanding pursuant to this clause (iv) shall not exceed an amount equal to the greater
of $250.0 million and 5.4% of Consolidated Tangible Assets;
(v) Indebtedness (A) supported by a letter of credit issued pursuant to any Credit Facility in a principal amount not exceeding
the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors
of the Borrower or any of its Restricted Subsidiaries;
(vi) (A) Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness or any other obligation or liability of the
Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the Borrower or such Restricted Subsidiary, as
the case may be, in violation of this subsection 7.1), or (B) without limiting subsection 7.2, Indebtedness of the Borrower
or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the
Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the Borrower or such Restricted Subsidiary, as
the case may be, in violation of this subsection 7.1);
(vii) Indebtedness of the Borrower or any Restricted Subsidiary (A) arising from the honoring of a check, draft or similar instrument
of such Person drawn against insufficient funds in the ordinary course of business, or (B) consisting of guarantees, indemnities,
obligations in respect of earnouts or other purchase price adjustments, or similar obligations, Incurred in connection with the
acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of the Borrower or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances
or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course
of business (including those issued to governmental entities in connection with self-insurance under applicable workers’
compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds,
instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business,
including in respect of liabilities or obligations of franchisees, (C) Hedging Obligations, (D) Management Guarantees
or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay
obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and
other arrangements arising under standard business terms of any bank at which the Borrower or any Restricted Subsidiary maintains
an overdraft, cash pooling or other similar facility or arrangement, (H) Junior Capital, or (I) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise
Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing;
provided that (1) such Indebtedness is not recourse to the Borrower or any Restricted Subsidiary that is
not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), (2) in the event
such Indebtedness shall become recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary
(other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified
by the Borrower as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this
subsection 7.1 for so long as such Indebtedness shall be so recourse, and (3) in the event that at any time thereafter
such Indebtedness shall comply with the provisions of the preceding subclause (1), the Borrower may classify such Indebtedness
in whole or in part as Incurred under this subsection 7.1(b)(ix);
(x) Indebtedness of (A) the Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in
connection with, any acquisition of any assets (including Capital Stock), business or Person, or any merger or consolidation of
any Person with or into the Borrower or any Restricted Subsidiary, or (B) any Person that is acquired by or merged or consolidated
with or into the Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition,
merger or consolidation); provided that on the date of such acquisition, merger or consolidation, after giving effect
thereto, either (1) (x) the Consolidated Total Leverage Ratio of the Borrower would not exceed 6.75:1.00 or (y)
the Consolidated Total Leverage Ratio of the Borrower would equal or be less than the Consolidated Total Leverage Ratio of the
Borrower immediately prior to giving effect thereto or (2) (x) the Consolidated Coverage Ratio of the Borrower would
be at least 2.00:1.00 or (y) the Consolidated Coverage Ratio of the Borrower would equal or be greater than the Consolidated
Coverage Ratio of the Borrower immediately prior to giving effect thereto, and provided, further,
that if, at the Borrower’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive
agreement providing the commitment to fund such Indebtedness, pro forma effect is given to the Incurrence of the entire committed
amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to
time, without further compliance with this subsection 7.1(b)(x); and any Refinancing Indebtedness with respect to any such Indebtedness;
(xi) Indebtedness of any Foreign Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal
to the greater of $200.0 million and 4.5% of Consolidated Tangible Assets;
(xii) Contribution Indebtedness and any Refinancing Indebtedness with respect thereto;
(xiii) Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding
an amount equal to the greater of $280.0 million and 6.0% of Consolidated Tangible Assets;
(xiv) Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with subsection 7.1(a),
and any Refinancing Indebtedness with respect thereto;
(xv) Indebtedness of the Borrower or any Restricted Subsidiary Incurred as consideration in connection with any acquisition of assets
(including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted
Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not
exceeding an amount equal to the greater of $300.0 million and 7.0% of Consolidated Tangible Assets; and
(xvi) Indebtedness of the Borrower or any Restricted Subsidiary that is (A) secured by a Lien ranking junior to the Lien securing
the Term Loan Facility Obligations or (B) unsecured; provided in either case that, on the date of the Incurrence
thereof and after giving pro forma effect to such Incurrence, either (1) the Consolidated Total Leverage Ratio of the Borrower
shall not exceed 6.75:1.00 or (2) the Consolidated Coverage Ratio of the Borrower shall be at least 2.00:1.00; and provided,
further, that if, at the Borrower’s option, on the date of the initial borrowing of such Indebtedness, pro
forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter
be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this subsection 7.1(b)(xvi);
and any Refinancing Indebtedness with respect to any such Indebtedness.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant
to and in compliance with, this subsection 7.1, (i) any other obligation of the obligor on such Indebtedness (or of any
other Person who could have Incurred such Indebtedness under this subsection 7.1) arising under any Guarantee, Lien or letter
of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded
to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation
secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness meets the criteria of more than
one of the types of Indebtedness described in subsection 7.1(b), the Borrower, in its sole discretion, shall classify such item
of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses or subclauses of subsection
7.1(b) (including in part under one such clause or subclause and in part under another such clause or subclause); provided
that (if the Borrower shall so determine) any Indebtedness Incurred pursuant to subsection 7.1(b)(iv), 7.1(b)(xiii), 7.1(b)(xi)
or 7.1(b)(xv) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the
purposes of subsection 7.1(a) from and after the first date on which the Borrower or any Restricted Subsidiary could have Incurred
such Indebtedness under subsection 7.1(a) without reliance on such clause; (iii) in the event that Indebtedness could be
Incurred in part under subsection 7.1(a), the Borrower, in its sole discretion, may classify a portion of such Indebtedness as
having been Incurred under subsection 7.1(a) and the remainder of such Indebtedness as having been Incurred under subsection 7.1(b);
(iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the
amount of the liability in respect thereof determined in accordance with GAAP; (v) the principal amount of Indebtedness
outstanding under any clause of subsection 7.1(b), including for purposes of any determination of the “Maximum Incremental
Facilities Amount,” shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance
any such other Indebtedness; (vi) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness
Incurred to refinance Indebtedness initially Incurred) in reliance on any provision of subsection 7.1(b) measured by reference
to a percentage of Consolidated Tangible Assets at the time of Incurrence, and such refinancing would cause such percentage of
Consolidated Tangible Assets to be exceeded if calculated based on the Consolidated Tangible Assets on the date of such refinancing,
such percentage of Consolidated Tangible Assets shall not be deemed to be exceeded (and such refinancing Indebtedness shall be
deemed permitted) so long as the principal amount of such refinancing Indebtedness does not exceed an amount equal to the principal
amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other
costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing; and (vii)
if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness
initially Incurred) in reliance on any provision of subsection 7.1(b) measured by a dollar amount, such dollar amount shall not
be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) to the extent the principal amount of such
newly Incurred Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate
amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred
or payable in connection with such refinancing.
(d) For purposes of determining compliance with any provision of subsection 7.1(b) (or any category of Permitted Liens described in
the definition thereof) measured by a dollar amount or by reference to a percentage of Consolidated Tangible Assets, in each case,
for the Incurrence of Indebtedness or Liens securing Indebtedness denominated in a foreign currency, the Dollar-equivalent principal
amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect
on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving
or deferred draw Indebtedness, provided that (x) the Dollar-equivalent principal amount of any such Indebtedness
outstanding on the Restatement Effective Date shall be calculated based on the relevant currency exchange rate in effect on the
Restatement Effective Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign
currency (or in a different currency from such Indebtedness so being Incurred), and such refinancing would cause the applicable
provision of subsection 7.1(b) (or category of Permitted Liens) measured by a dollar amount or by reference to a percentage of
Consolidated Tangible Assets, as applicable, to be exceeded if calculated at the relevant currency exchange rate in effect on
the date of such refinancing, such provision of subsection 7.1(b) (or category of Permitted Liens) measured by a dollar amount
or by reference to a percentage of Consolidated Tangible Assets, as applicable, shall be deemed not to have been exceeded so long
as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount
(whichever is higher) of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting
discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with
such refinancing and (z) the Dollar-equivalent principal amount of Indebtedness denominated in a foreign currency and Incurred
pursuant to a Senior Credit Facility shall be calculated based on the relevant currency exchange rate in effect on, at the Borrower’s
option, (A) the Restatement Effective Date, (B) any date on which any of the respective commitments under such Senior
Credit Facility shall be reallocated between or among facilities or subfacilities hereunder or thereunder, or on which such rate
is otherwise calculated for any purpose thereunder or (C) the date of such Incurrence. The principal amount of any Indebtedness
Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be
calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated
that is in effect on the date of such refinancing.
7.2 Limitation on Liens. The Borrower shall not, and shall not permit any Material Restricted Subsidiary to, directly or indirectly,
create or permit to exist any Lien upon any of its property or assets, whether now owned or hereafter acquired, securing any Indebtedness,
except for the following Liens:
(a) Liens for taxes, assessments or other governmental charges not yet delinquent or the nonpayment of which in the aggregate would
not reasonably be expected to have a material adverse effect on the Borrower and its Restricted Subsidiaries, taken as a whole,
or that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained
on the books of the Borrower or a Subsidiary thereof, as the case may be, in accordance with GAAP;
(b) Liens with respect to outstanding motor vehicle fines, and carriers’, warehousemen’s, mechanics’, landlords’,
materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of obligations
that are not known to be overdue for a period of more than 60 days or that are bonded or that are being contested in good faith
and by appropriate proceedings;
(c) pledges, deposits or Liens in connection with workers’ compensation, professional liability insurance, insurance programs,
unemployment insurance and other social security and other similar legislation or other insurance-related obligations (including
pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements);
(d) pledges, deposits or Liens to secure the performance of bids, tenders, trade, government or other contracts (other than for borrowed
money), obligations for utilities, leases, licenses, statutory obligations, completion guarantees, surety, judgment, appeal or
performance bonds, other similar bonds, instruments or obligations, and other obligations of a like nature incurred in the ordinary
course of business;
(e) easements (including reciprocal easement agreements), rights-of-way, building, zoning and similar restrictions, utility agreements,
covenants, reservations, restrictions, encroachments, charges, and other similar encumbrances or title defects incurred, or leases
or subleases granted to others, in the ordinary course of business, which do not in the aggregate materially interfere with the
ordinary conduct of the business of the Borrower and its Subsidiaries, taken as a whole;
(f) Liens existing on, or provided for under written arrangements existing on, the Restatement Effective Date, or (in the case of
any such Liens securing Indebtedness of the Borrower or any of its Subsidiaries existing or arising under written arrangements
existing on the Restatement Effective Date) securing any Refinancing Indebtedness in respect of such Indebtedness so long as the
Lien securing such Refinancing Indebtedness is limited to all or part of the same property or assets (plus improvements, accessions,
proceeds or dividends or distributions in respect thereof) that secured (or under such written arrangements could secure) the
original Indebtedness;
(g) (i) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed
by any developer, landlord or other third party on property over which the Borrower or any Restricted Subsidiary of the Borrower
has easement rights or on any leased property and subordination or similar agreements relating thereto and (ii) any condemnation
or eminent domain proceedings affecting any real property;
(h) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Hedging Obligations, Bank
Products Obligations, Purchase Money Obligations or Capitalized Lease Obligations Incurred in compliance with subsection 7.1;
(i) Liens arising out of judgments, decrees, orders or awards in respect of which the Borrower or any Restricted Subsidiary shall
in good faith be prosecuting an appeal or proceedings for review, which appeal or proceedings shall not have been finally terminated,
or if the period within which such appeal or proceedings may be initiated shall not have expired;
(j) leases, subleases, licenses or sublicenses to or from third parties;
(k) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of (i) Indebtedness
Incurred in compliance with subsection 7.1(b)(i), (b)(iv), (b)(v), (b)(vii), (b)(viii), (b)(ix) or (b)(xi) or subsection 7.1(b)(iii)
(other than under the Senior Notes or any Refinancing Indebtedness Incurred in respect of Indebtedness described in subsection
7.1(a)), (ii) Indebtedness under or in respect of the Term Loan Facility, or any Refinancing Indebtedness in respect thereof,
(iii) Credit Facility Indebtedness Incurred in compliance with (x) subsection 7.1(b) (other than subsection 7.1(b)(x),
7.1(b)(xiii) or 7.1(b)(xvi)) or (y) subsection 7.1(b)(x), 7.1(b)(xiii) or 7.1(b)(xvi), provided that (in
the case of this clause (y)) any such Liens on Cash Flow Facilities Priority Collateral (as defined in the Intercreditor Agreement)
are junior in priority to the Liens thereon securing the Indebtedness hereunder, which priority may be effected pursuant to the
Intercreditor Agreement or otherwise, (iv) Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor,
(v) Indebtedness or other obligations of any Special Purpose Entity, or (vi) obligations in respect of Management
Advances or Management Guarantees; in each case under the foregoing clauses (i) through (vi) including Liens securing any Guarantee
of any thereof;
(l) Liens existing on property or assets of a Person at, or provided for under written arrangements existing at, the time such Person
becomes a Subsidiary of the Borrower (or at the time the Borrower or a Restricted Subsidiary acquires such property or assets,
including any acquisition by means of a merger or consolidation with or into the Borrower or any Restricted Subsidiary); provided,
however, that such Liens and arrangements are not created in connection with, or in contemplation of, such other
Person becoming such a Subsidiary (or such acquisition of such property or assets), and that such Liens are limited to all or
part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof)
that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens
relate; provided, further, that for purposes of this clause (l), if a Person other than the Borrower
is the Successor Company with respect thereto, any Subsidiary thereof shall be deemed to become a Subsidiary of the Borrower,
and any property or assets of such Person or any such Subsidiary shall be deemed acquired by the Borrower or a Restricted Subsidiary,
as the case may be, when such Person becomes such Successor Company;
(m) Liens on Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary or any joint venture that is not a Subsidiary
of the Borrower that secure Indebtedness or other obligations of such Unrestricted Subsidiary or joint venture, respectively;
(n) any encumbrance or restriction (including, but not limited to, pursuant to put and call agreements or buy/sell arrangements) with
respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(o) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Refinancing Indebtedness
Incurred in respect of any Indebtedness secured by, or securing any refinancing, refunding, extension, renewal or replacement
(in whole or in part) of any other obligation secured by, any other Permitted Liens; provided that any such new
Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions
in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the obligations
to which such Liens relate;
(p) Liens (i) arising by operation of law (or by agreement to the same effect) in the ordinary course of business, including
Liens arising under or by reason of the Perishable Agricultural Commodities Act of 1930, as amended from time to time, (ii)
on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or
partial payments by a third party relating to such property or assets, (iii) on receivables (including related rights),
(iv) on cash set aside at the time of the Incurrence of any Indebtedness or government securities purchased with such cash,
in either case to the extent that such cash or government securities pre-fund the payment of interest on such Indebtedness and
are held in an escrow account or similar arrangement to be applied for such purpose, (v) securing or arising by reason
of any netting or set-off arrangement entered into in the ordinary course of banking or other trading activities (including in
connection with purchase orders and other agreements with customers), (vi) in favor of the Borrower or any Subsidiary (other
than Liens on property or assets of the Borrower or any Subsidiary Guarantor in favor of any Subsidiary that is not a Subsidiary
Guarantor), (vii) arising out of conditional sale, title retention, consignment or similar arrangements for the sale of
goods entered into in the ordinary course of business, (viii) on inventory or other goods and proceeds securing obligations
in respect of bankers’ acceptances issued or created to facilitate the purchase, shipment or storage of such inventory or
other goods, (ix) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft, cash pooling or similar
obligations incurred in the ordinary course of business, (x) attaching to commodity trading or other brokerage accounts
incurred in the ordinary course of business, (xi) arising in connection with repurchase agreements permitted under subsection
7.1, on assets that are the subject of such repurchase agreements or (xii) in favor of any Special Purpose Entity in connection
with any Financing Disposition;
(q) other Liens securing Indebtedness or other obligations that in the aggregate at any time outstanding do not exceed an amount equal
to the greater of $85.0 million and 1.8% of Consolidated Tangible Assets at the time of Incurrence of such Indebtedness or other
obligations; and
(r) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) or other obligations Incurred in compliance
with subsection 7.1, provided that on the date of the Incurrence of such Indebtedness after giving effect to such
Incurrence (or on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the
commitment to fund such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount of such Indebtedness,
in which case such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without
further compliance with this subsection 7.2(r)), the Consolidated Secured Leverage Ratio shall not exceed 5.75:1.00; and
(s) Liens on the Collateral, if such Liens rank junior to the Liens on such Collateral in relation to the Lien securing the Loans
and the Subsidiary Guarantees, as applicable (so long as any such Liens (and related Obligations) are subject to an Intercreditor
Agreement).
(t) For purposes of determining compliance with this subsection 7.2, (s) a Lien need not be incurred solely by reference to
one category of Permitted Liens described in this subsection 7.2 but may be incurred under any combination of such categories
(including in part under one such category and in part under any other such category), (t) in the event that a Lien (or
any portion thereof) meets the criteria of one or more of such categories of Permitted Liens, the Borrower shall, in its sole
discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this subsection 7.2, (u)
the principal amount of Indebtedness secured by a Lien outstanding under any category of Permitted Liens shall be determined after
giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness, (v) any
Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the Incurrence of such Indebtedness shall
also be permitted to secure any increase in the amount of such Indebtedness in connection with the accrual of interest, the accretion
of accreted value, the payment of interest in the form of additional Indebtedness and the payment of dividends on Capital Stock
constituting Indebtedness in the form of additional shares of the same class of Capital Stock, (w) in the event that a
portion of Indebtedness secured by a Lien could be classified as secured in part pursuant to subsection 7.2(k)(i) in respect of
Indebtedness Incurred pursuant to subsection 7.1(b)(i) and clause (i) of the definition of “Maximum Incremental Facilities
Amount” (giving effect to the Incurrence of such portion of such Indebtedness), the Borrower, in its sole discretion, may
classify such portion of such Indebtedness (and any Obligations in respect thereof) as having been secured pursuant to subsection
7.2(k)(i) in respect of Indebtedness Incurred pursuant to subsection 7.1(b)(i) and clause (i) of the definition of “Maximum
Incremental Facilities Amount” and the remainder of the Indebtedness as having been secured pursuant to one or more of the
other clauses of this definition (other than subsection 7.2(r)), (x) in the event that a portion of Indebtedness secured
by a Lien could be classified in part pursuant to subsection 7.2(r) (giving effect to the Incurrence of such portion of Indebtedness),
the Borrower, in its sole discretion, may classify such portion of Indebtedness (and any Obligations in respect thereof) as having
been secured pursuant to subsection 7.2(r) and the remainder of the Indebtedness as having been secured pursuant to one or more
of the other clauses of this definition (other than subsection 7.2(k)(i) in respect of Indebtedness Incurred pursuant to subsection
7.1(b)(i) and clause (i) of the definition of “Maximum Incremental Facilities Amount”), (y) if any Indebtedness
or other obligation is secured by any Lien outstanding under any category of Permitted Liens measured by reference to a percentage
of Consolidated Tangible Assets at the time of incurrence of such Indebtedness or other obligations, and is refinanced by any
Indebtedness or other obligation secured by any Lien incurred by reference to such category of Permitted Liens, and such refinancing
would cause the percentage of Consolidated Tangible Assets to be exceeded if calculated based on the Consolidated Tangible Assets
on the date of such refinancing, such percentage of Consolidated Tangible Assets shall not be deemed to be exceeded (and such
refinancing Lien shall be deemed permitted) so long as the principal amount of such refinancing Indebtedness or other obligation
does not exceed an amount equal to the principal amount of such Indebtedness or other obligation being refinanced, plus
the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest)
incurred or payable in connection with such refinancing and (z) if any Indebtedness or other obligation is secured by any
Lien outstanding under any category of Permitted Liens measured by reference to a dollar amount, and is refinanced by any Indebtedness
or other obligation secured by any Lien incurred by reference to such category of Permitted Liens, and such refinancing would
cause such dollar amount to be exceeded, such dollar amount shall not be deemed to be exceeded (and such refinancing Lien shall
be deemed permitted) so long as the principal amount of such refinancing Indebtedness or other obligation does not exceed an amount
equal to the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts,
premiums and other costs and expenses (including accrued and unpaid interest) incurred or payable in connection with such refinancing.
7.3 Limitation on Fundamental Changes.
(a) The Borrower will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets
to, any Person, unless:
(i) the resulting, surviving or transferee Person (the “Successor Company”) will be a Person organized and existing
under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not
the Borrower) will expressly assume all the obligations of the Borrower under this Agreement by executing and delivering to the
Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative
Agent;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor
Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such
Restricted Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, either (A) the Borrower (or, if applicable, the Successor Company
with respect thereto) could Incur at least $1.00 of additional Indebtedness pursuant to subsection 7.1(a), or (B) the Consolidated
Coverage Ratio of the Borrower (or, if applicable, the Successor Company with respect thereto) would equal or exceed the Consolidated
Coverage Ratio of the Borrower immediately prior to giving effect to such transaction;
(iv) each applicable Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations
under its Subsidiary Guarantee in connection with such transaction and (y) any party to any such consolidation or merger)
shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming
its Subsidiary Guarantee under the Guarantee and Collateral Agreement (other than any Subsidiary Guarantee that will be discharged
or terminated in connection with such transaction); and
(v) The Borrower shall have delivered to the Administrative Agent a certificate signed by a Responsible Officer of the Borrower and
a legal opinion each to the effect that such consolidation, merger or transfer complies with the provisions described in this
paragraph, provided that (x) in giving such opinion such counsel may rely on such certificate of such Responsible
Officer as to compliance with the foregoing clauses (ii) and (iii) of this subsection 7.3(a) and as to any matters of fact, and
(y) no such legal opinion will be required for a consolidation, merger or transfer described in clause (d) of this subsection
7.3.
(b) Any Indebtedness that becomes an obligation of the Borrower (or, if applicable, the Successor Company with respect thereto) or
any Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary)
as a result of any such transaction undertaken in compliance with this subsection 7.3, and any Refinancing Indebtedness with respect
thereto, shall be deemed to have been Incurred in compliance with subsection 7.1.
(c) Upon any transaction involving the Borrower in accordance with subsection 7.3(a) in which the Borrower is not the Successor Company,
the Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this
Agreement, and thereafter the predecessor Borrower shall be relieved of all obligations and covenants under this Agreement, except
that the predecessor Borrower in the case of a lease of all or substantially all its assets will not be released from the obligation
to pay the principal of and interest on the Loans.
(d) Subsection 7.3(a) will not apply to any transaction in which the Borrower consolidates or merges with or into or transfers all
or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of reincorporating
or reorganizing the Borrower in another jurisdiction (so long as such jurisdiction is the United States of America, any State
thereof or the District of Columbia) or changing its legal structure to a corporation, limited liability company or other entity
or (y) a Restricted Subsidiary of the Borrower so long as all assets of the Borrower and the Restricted Subsidiaries immediately
prior to such transaction (other than Capital Stock of such Restricted Subsidiary) are owned by such Restricted Subsidiary and
its Restricted Subsidiaries immediately after the consummation thereof. Subsection 7.3(a) will not apply to any transaction in
which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its assets to the Borrower.
7.4 Limitation on Asset Dispositions; Proceeds from Asset Dispositions and Recovery Events.
(a) The Borrower will not, and will not permit any Material Restricted Subsidiary to, make any Asset Disposition unless:
(i) the Borrower or such Material Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person
assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to
the Fair Market Value of the shares and assets subject to such Asset Disposition, as such Fair Market Value (on the date a legally
binding commitment for such Asset Disposition was entered into) may be determined (and shall be determined, to the extent such
Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $25.0 million) in
good faith by the Borrower, which determination shall be conclusive (including as to the value of all noncash consideration),
(ii) in the case of any Asset Disposition (or series of related Asset Dispositions) having a Fair Market Value (on the date a legally
binding commitment for such Asset Disposition was entered into) of $25.0 million or more, at least 75.0% of the consideration
therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions), any consideration by way of
relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness)
for such Asset Disposition, together with all other Asset Dispositions since the Restatement Effective Date (on a cumulative basis)
received by the Borrower or such Material Restricted Subsidiary is in the form of cash, and
(iii) to the extent required by subsection 7.4(b), an amount equal to 100.0% (as may be adjusted pursuant to the final proviso of this
subsection 7.4(b)) of the Net Available Cash from such Asset Disposition is applied by the Borrower (or any Restricted Subsidiary,
as the case may be) as provided in such subsection.
(b) In the event that on or after the Restatement Effective Date, (x) the Borrower or any Restricted Subsidiary shall make
an Asset Disposition or (y) a Recovery Event shall occur, an amount equal to 100.0% (as may be adjusted pursuant to the
final proviso of this subsection 7.4(b)) of the Net Available Cash from such Asset Disposition or Recovery Event shall be applied
by the Borrower (or any Restricted Subsidiary, as the case may be) as follows:
(i) first, (x) to the extent the Borrower or such Restricted Subsidiary elects, to reinvest or commit to reinvest in
the business of the Borrower and its Restricted Subsidiaries (including any investment in Additional Assets by the Borrower or
any Restricted Subsidiary) within 450 days from the later of the date of such Asset Disposition or Recovery Event, as the case
may be, and the date of receipt of such Net Available Cash (or, if such reinvestment is in a project authorized by the Board of
Directors that will take longer than such 450 days to complete, the period of time necessary to complete such project) or (y)
in the case of any Asset Disposition by any Restricted Subsidiary that is not a Subsidiary Guarantor, to the extent that the Borrower
or any Restricted Subsidiary elects (or is required by the terms of any Indebtedness of any Restricted Subsidiary that is not
a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or Obligations in respect thereof or (in the case
of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness or Obligations
in respect thereof (in each case other than any such Indebtedness owed to the Borrower or a Restricted Subsidiary) within 450
days after the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash;
(ii) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (i) above,
within the longest of (1) 10 Business Days of determination of such balance, (2) the time required under any other
Indebtedness prepaid, repaid or purchased pursuant to this clause (ii), and (3) the time required by applicable law, toward
the prepayment of the Term Loans and (to the extent required by the terms thereof) to prepay, repay or purchase Additional Indebtedness
on a pro rata basis with the Term Loans in accordance with subsection 3.4(c) (and subject to subsections 3.4(d) and 3.4(e)) or
the agreements or instruments governing such Additional Indebtedness; and
(iii) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (i) and (ii)
above (including an amount equal to the amount of any prepayment otherwise contemplated by clause (ii) above in connection with
such Asset Disposition or Recovery Event that is declined by any Lender (the “Declined Excess Proceeds”)),
to fund (to the extent consistent with any other applicable provision of this Agreement) any general corporate purpose (including
but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations or the making
of other Restricted Payments);
provided,
however, that the Borrower (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional
Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such
investment shall be made no earlier than the earliest of notice to the Administrative Agent of the relevant Asset Disposition,
execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and
deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition;
provided, further, that the percentage first set forth above in this subsection 7.4(b) shall be reduced
to (I) 50.0% if the Consolidated Secured Leverage Ratio at the time of such Asset Disposition (or, at the Borrower’s
option, on the date a legally binding commitment for such Asset Disposition was entered into) is less than or equal to 3.00:1.00
and (II) 25.0% if the Consolidated Secured Leverage Ratio at the time of such Asset Disposition (or, at the Borrower’s
option, on the date a legally binding commitment for such Asset Disposition was entered into) is less than or equal to 2.00:1.00
(any Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with this subsection 7.4(b)
as a result of the application of this proviso shall collectively constitute “Leverage Excess Proceeds”).
(c) Notwithstanding the foregoing provisions of this subsection 7.4, the Borrower and its Restricted Subsidiaries shall not be required
to apply any Net Available Cash or equivalent amount in accordance with this subsection 7.4, (x) except to the extent that
the aggregate Net Available Cash from all Asset Dispositions and Recovery Events or equivalent amount that is not applied in accordance
with this subsection 7.4 (excluding all Leverage Excess Proceeds) exceeds $50.0 million and (y) in the case of any Asset
Disposition by, or Recovery Event relating to any asset of, the Borrower or any Restricted Subsidiary that is not a Subsidiary
Guarantor, to the extent that (i) any Net Available Cash from such Asset Disposition or Recovery Event is subject to any
restriction on the transfer of all or any portion thereof directly or indirectly to the Borrower, including by reason of applicable
law or agreement (other than any agreement entered into primarily for the purpose of imposing such a restriction) or (ii)
in the good faith determination of the Borrower (which determination shall be conclusive) the transfer of all or any portion of
any Net Available Cash from such Asset Disposition directly or indirectly to the Borrower could reasonably be expected to give
rise to or result in (A) any violation of applicable law, (B) any liability (criminal, civil, administrative or
other) for any of the officers, directors or shareholders of the Borrower, any Restricted Subsidiary or any Parent, (C)
any violation of the provisions of any joint venture or other material agreement governing or binding upon the Borrower or any
Restricted Subsidiary, (D) any material risk of any such violation or liability referred to in any of the preceding clauses
(A), (B) and (C), (E) any adverse tax consequence for the Borrower or any Restricted Subsidiary, or (F) any cost,
expense, liability or obligation (including any Tax) other than routine and immaterial out-of-pocket expenses.
(d) For the purposes of subsection 7.4(a)(ii), the following are deemed to be cash: (i) Temporary Cash Investments and Cash
Equivalents; (ii) the assumption of Indebtedness of the Borrower (other than Disqualified Stock of the Borrower) or any
Restricted Subsidiary and the release of the Borrower or such Restricted Subsidiary from all liability on payment of the principal
amount of such Indebtedness in connection with such Asset Disposition; (iii) Indebtedness of any Restricted Subsidiary
that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Borrower and each other
Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with
such Asset Disposition; (iv) securities received by the Borrower or any Restricted Subsidiary from the transferee that
are converted by the Borrower or such Restricted Subsidiary into cash within 180 days; (v) consideration consisting of
Indebtedness of the Borrower or any Restricted Subsidiary; (vi) Additional Assets; and (vii) any Designated Noncash
Consideration received by the Borrower or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair
Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an
aggregate amount at any time outstanding equal to the greater of $185.0 million and 4.0% of Consolidated Tangible Assets (with
the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment
for such Asset Disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent
changes in value).
7.5 Limitation on Dividends and Other Restricted Payments.
(a) The Borrower shall not, and shall not permit any Material Restricted Subsidiary to, directly or indirectly, (i) declare
or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with
any merger or consolidation to which the Borrower is a party) except (x) dividends or distributions payable solely in its
Capital Stock (other than Disqualified Stock) and (y) dividends or distributions payable to the Borrower or any Restricted
Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital
Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value
any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition
of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price
thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value,
prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than a
purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase,
redemption, defeasance or other acquisition or retirement) or (iv) make any Investment (other than a Permitted Investment)
in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement
or Investment being herein referred to as a “Restricted Payment”), if at the time the Borrower or such Restricted
Subsidiary makes such Restricted Payment and after giving effect thereto:
(i) an Event of Default shall have occurred and be continuing (or would result therefrom);
(ii) the Borrower could not Incur at least an additional $1.00 of Indebtedness pursuant to subsection 7.1(a); or
(iii) the aggregate amount of such Restricted Payment and all other Restricted Payments (the amount so expended, if other than in cash,
to be as determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a resolution
of the Board of Directors) declared or made subsequent to the Restatement Effective Date and then outstanding would exceed, without
duplication, the sum of:
(A) (i) 200.0 million plus (ii) an amount equal to 50.0% of the Consolidated Net Income accrued during the period (treated
as one accounting period) beginning on April 3, 2016 to the end of the most recent fiscal quarter ending prior to the date of
such Restricted Payment for which consolidated financial statements of the Borrower (or, any Parent whose financial statements
satisfy the Borrower’s reporting obligations under subsection 6.1(a) or 6.1(b)) are available (or, in case such Consolidated
Net Income shall be a negative number, 100.0% of such negative number); plus
(B) the aggregate Net Cash Proceeds and the fair value (as determined in good faith by the Borrower) of property or assets received
(x) by the Borrower as capital contributions to the Borrower after the Restatement Effective Date or from the issuance
or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock) after the Restatement Effective
Date (other than Excluded Contributions and Contribution Amounts) or (y) by the Borrower or any Restricted Subsidiary from
the Incurrence by the Borrower or any Restricted Subsidiary after the Restatement Effective Date of Indebtedness that shall have
been converted into or exchanged for Capital Stock of the Borrower (other than Disqualified Stock) or Capital Stock of any Parent,
plus the amount of any cash and the fair value (as determined in good faith by the Borrower) of any property or assets,
received by the Borrower or any Restricted Subsidiary upon such conversion or exchange; plus
(C) (i) the aggregate amount of cash and the fair value (as determined in good faith by the Borrower) of any property or assets
received from dividends, distributions, interest payments, return of capital, repayments of Investments or other transfers of
assets to the Borrower or any Restricted Subsidiary from any Unrestricted Subsidiary, including dividends or other distributions
related to dividends or other distributions made pursuant to subsection 7.5(b)(x), plus (ii) the aggregate amount
resulting from the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary (valued in each case as provided in
the definition of “Investment”); plus
(D) in the case of any disposition or repayment of any Investment constituting a Restricted Payment (without duplication of any amount
deducted in calculating the amount of Investments at any time outstanding included in the amount of Restricted Payments), the
aggregate amount of cash and the fair value (as determined in good faith by the Borrower) of any property or assets received by
the Borrower or a Restricted Subsidiary with respect to all such dispositions and repayments.
(b) The provisions of subsection 7.5(a) above do not prohibit any of the following (each, a “Permitted Payment”):
(i) (x) any purchase, redemption, repurchase, defeasance or other acquisition or retirement of Capital Stock of the Borrower
(“Treasury Capital Stock”) or Subordinated Obligations made by exchange (including any such exchange pursuant
to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional
shares) for, or out of the proceeds of the issuance or sale of, Capital Stock of the Borrower (other than Disqualified Stock and
other than Capital Stock issued or sold to a Subsidiary) (“Refunding Capital Stock”) or a capital contribution
to the Borrower, in each case other than Excluded Contributions and Contribution Amounts; provided that the Net
Cash Proceeds from such issuance, sale or capital contribution shall be excluded in subsequent calculations under subsection 7.5(a)(iii)(B)
above and (y) if immediately prior to such acquisition or retirement of such Treasury Capital Stock, dividends thereon
were permitted pursuant to subsection 7.5(b)(xi), dividends on such Refunding Capital Stock in an aggregate amount per annum not
exceeding the aggregate amount per annum of dividends so permitted on such Treasury Capital Stock;
(ii) any purchase, redemption, repurchase, defeasance or other acquisition or retirement of Subordinated Obligations (w) made
by exchange for, or out of the proceeds of the Incurrence of, Indebtedness of the Borrower or any of its Restricted Subsidiaries
or Refinancing Indebtedness Incurred in compliance with subsection 7.1, (x) from amounts as contemplated by subsection
3.4(e), (y) following the occurrence of a Change of Control (or other similar event described therein as a “change
of control”), but only if the Borrower shall have complied with subsection 7.8(a), or (z) constituting Acquired Indebtedness;
(iii) any dividend paid or redemption made within 60 days after the date of declaration thereof or of the giving of notice thereof,
as applicable, if at such date of declaration or the giving of such notice, such dividend or redemption would have complied with
this subsection 7.5;
(iv) Investments or other Restricted Payments in an aggregate amount outstanding at any time not to exceed the amount of Excluded Contributions;
(v) loans, advances, dividends or distributions by the Borrower to any Parent to permit any Parent to repurchase or otherwise acquire
its Capital Stock (including any options, warrants or other rights in respect thereof), or payments by the Borrower to repurchase
or otherwise acquire Capital Stock of any Parent or the Borrower (including any options, warrants or other rights in respect thereof),
in each case from current or former Management Investors (including any repurchase or acquisition by reason of the Borrower or
any Parent retaining any Capital Stock, option, warrant or other right in respect of tax withholding obligations, and any related
payment in respect of any such obligation), such payments, loans, advances, dividends or distributions not to exceed an amount
(net of repayments of any such loans or advances) equal to (w) (1) $50.0 million plus (2) $25.0 million
multiplied by the number of calendar years that have commenced since the Restatement Effective Date, plus (x)
the Net Cash Proceeds received by the Borrower since the Restatement Effective Date from, or as a capital contribution from, the
issuance or sale to Management Investors of Capital Stock (including any options, warrants or other rights in respect thereof),
to the extent such Net Cash Proceeds are not included in any calculation under subsection 7.5(a)(iii)(B)(x) above, plus
(y) the cash proceeds of key man life insurance policies received by the Borrower or any Restricted Subsidiary (or by any
Parent and contributed to the Borrower) since the Restatement Effective Date to the extent such cash proceeds are not included
in any calculation under subsection 7.5(a)(iii)(A) above; provided that any cancellation of Indebtedness owing to
the Borrower or any Restricted Subsidiary by any current or former Management Investor in connection with any repurchase or other
acquisition of Capital Stock (including any options, warrants or other rights in respect thereof) from any Management Investor
shall not constitute a Restricted Payment for purposes of this subsection 7.5 or any other provision of this Agreement;
(vi) the payment by the Borrower of, or loans, advances, dividends or distributions by the Borrower to any Parent to pay, dividends
on the common stock, units or equity of the Borrower or any Parent following a public offering of such common stock, units or
equity in an amount not to exceed in any fiscal year of the Borrower an amount equal to the greater of (x) 6.0% of the
aggregate gross proceeds received by the Borrower (whether directly, or indirectly through a contribution to common equity capital)
in or from such public offering (including from the IPO) and (y) 6.0% of Market Capitalization;
(vii) Restricted Payments (including loans or advances) in an aggregate amount outstanding at any time not to exceed an amount (net
of repayments of any such loans or advances) equal to the greater of $150.0 million and 3.2% of Consolidated Tangible Assets;
(viii) loans, advances, dividends or distributions to any Parent or other payments by the Borrower or any Restricted Subsidiary (A)
to satisfy or permit any Parent to satisfy obligations under the Management Agreements, (B) pursuant to the Tax Sharing
Agreement, or (C) to pay or permit any Parent to pay any Parent Expenses or any Related Taxes;
(ix) payments by the Borrower, or loans, advances, dividends or distributions by the Borrower to any Parent to make payments, to holders
of Capital Stock of the Borrower or any Parent in lieu of issuance of fractional shares of such Capital Stock;
(x) the declaration or payment or making of dividends or other distributions of, or Investments paid for or made with, Capital Stock,
Indebtedness or other securities of Unrestricted Subsidiaries;
(xi) (A) the declaration or payment of dividends on any Designated Preferred Stock of the Borrower issued after the Restatement
Effective Date; provided that at the time of such issuance and after giving effect thereto on a pro forma basis,
the Consolidated Coverage Ratio would be equal to or greater than 2.00:1.00; (B) the declaration or payment of dividends
on Refunding Capital Stock that is Preferred Stock, provided that at the time of the declaration of such dividend
and after giving effect thereto on a pro forma basis, the Consolidated Coverage Ratio would be equal to or greater than 2.00:1.00,
or (C) loans, advances, dividends or distributions to any Parent to permit dividends on any Designated Preferred Stock
of any Parent issued after the Restatement Effective Date, in an amount (net of repayments of any such loans or advances) not
exceeding the aggregate cash proceeds received by the Borrower from the issuance or sale of such Designated Preferred Stock of
such Parent;
(xii) Investments in Unrestricted Subsidiaries in an aggregate amount outstanding at any time not exceeding an amount equal to the greater
of $85.0 million and 1.8% of Consolidated Tangible Assets;
(xiii) distributions or payments of Special Purpose Financing Fees;
(xiv) any Restricted Payment pursuant to or in connection with the Transactions;
(xv) the declaration or payment of dividends to holders of any class or series of Disqualified Stock, or of any Preferred Stock of
a Restricted Subsidiary, Incurred in accordance with subsection 7.1;
(xvi) [reserved];
(xvii) [reserved];
(xviii) Investments or other Restricted Payments in an aggregate amount outstanding at any time not to exceed an amount equal to the sum
of Leverage Excess Proceeds plus Declined Excess Proceeds; and
(xix) any Restricted Payment; provided that on a pro forma basis after giving effect to such Restricted Payment the Consolidated
Total Leverage Ratio would be equal to or less than 3.25:1.00;
provided
that (A) in the case of subsections 7.5(b)(iii), (vi), (ix) and (xvii), the net amount of any such Permitted Payment
shall be included in subsequent calculations of the amount of Restricted Payments, (B) in all cases other than pursuant
to clause (A) the net amount of any such Permitted Payment shall be excluded in subsequent calculations of the amount of Restricted
Payments and (C) solely with respect to subsections 7.5(b)(vii), (xvii) and (xix), no Event of Default shall have occurred
and be continuing at the time of any such Permitted Payment after giving effect thereto. The Borrower, in its sole discretion,
may classify any Investment or other Restricted Payment as being made in part under one of the clauses or subclauses of this covenant
(or, in the case of any Investment, the clauses or subclauses of Permitted Investments) and in part under one or more other such
clauses or subclauses.
Notwithstanding
any other provision of this Agreement, this Agreement shall not restrict any redemption or other payment by the Borrower or any
Restricted Subsidiary made as a mandatory principal redemption or other payment in respect of Subordinated Obligations pursuant
to an “AHYDO saver” provision of any agreement or instrument in respect of Subordinated Obligations, and the Borrower’s
determination in good faith of the amount of any such “AHYDO saver” mandatory principal redemption or other payment
shall be conclusive and binding for all purposes hereunder.
7.6 Limitation on Transactions with Affiliates.
(a) The Borrower will not, and will not permit any Material Restricted Subsidiary to, directly or indirectly, enter into or conduct
any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering
of any service) with any Affiliate of the Borrower (an “Affiliate Transaction”) involving aggregate consideration
in excess of $20.0 million unless (i) the terms of such Affiliate Transaction are not materially less favorable to the
Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with
a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess
of $50.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Board of Directors. For purposes
of this paragraph, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this subsection 7.6(a)
if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there
are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm
with respect to such Affiliate Transaction.
(b) The provisions of subsection 7.6(a) will not apply to:
(i) any Restricted Payment Transaction;
(ii) (1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement,
benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former
management member, employee, officer, director or consultant of or to the Borrower, any Restricted Subsidiary or any Parent heretofore
or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance,
retirement, savings or other similar plans, programs or arrangements, (2) payments, compensation, performance of indemnification
or contribution obligations, the making or cancellation of loans, in the ordinary course of business to any such management members,
employees, officers, directors or consultants, (3) any issuance, grant or award of stock, options, other equity-related
interests or other securities, to any such management members, employees, officers, directors or consultants, (4) the payment
of reasonable fees to directors of the Borrower or any of its Subsidiaries or any Parent (as determined in good faith by the Borrower,
such Subsidiary or such Parent), (5) any transaction with an officer or director of the Borrower or any of its Subsidiaries
or any Parent in the ordinary course of business not involving more than $100,000 in any one case, or (6) Management Advances
and payments in respect thereof (or in reimbursement of any expenses referred to in the definition of such term);
(iii) any transaction between or among any of the Borrower, one or more Restricted Subsidiaries, or one or more Special Purpose Entities;
(iv) any transaction arising out of agreements or instruments in existence on the Restatement Effective Date (other than any Tax Sharing
Agreement or Management Agreement referred to in subsection 7.6(b)(vii)), and any payments made pursuant thereto;
(v) any transaction in the ordinary course of business on terms that are fair to the Borrower and its Restricted Subsidiaries in the
reasonable determination of the Board of Directors or senior management of the Borrower, or are not materially less favorable
to the Borrower or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person
who is not an Affiliate of the Borrower;
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Borrower
or any Restricted Subsidiary and any Affiliate of the Borrower controlled by the Borrower that is a joint venture or similar entity;
(vii) (1) the execution, delivery and performance of any obligations under any Tax Sharing Agreement and any Management Agreements,
and (2) payments to CD&R or KKR or any of their respective Affiliates (x) for any management, consulting or
advisory services, or in respect of financing, underwriting or placement services or other investment banking activities (if any),
(y) in connection with any acquisition, disposition, merger, recapitalization or similar transactions, which payments are
approved by a majority of the Board of Directors in good faith, and (z) of all out-of-pocket expenses incurred in connection
with such services or activities;
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees
and expenses paid or payable in connection with the Transactions, including the fees and out-of-pocket expenses of CD&R, KKR
and their respective Affiliates;
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Borrower or Junior Capital or any capital contribution
to the Borrower; and
(x) any investment by any Investor in securities of the Borrower or any of its Restricted Subsidiaries (and payment of out-of-pocket
expenses incurred by any Investor in connection therewith) so long as such securities are being offered generally to other investors
on the same or more favorable terms.
7.7 [Reserved].
7.8 Change of Control; Limitation on Modifications of Debt Instruments. The Borrower will not, and will not permit any Material
Restricted Subsidiary to:
(a) in the event of the occurrence of a Change of Control, repurchase or repay any Indebtedness then outstanding pursuant to any Senior
Notes unless the Borrower shall have (i) made payment in full of the Term Loans and any other amounts then due and owing
to any Lender or the Administrative Agent and under any Term Loan Note or (ii) made an offer to pay the Term Loans and
any amounts then due and owing to each Lender and the Administrative Agent hereunder and under any Term Loan Note in respect of
each and shall have made payment in full thereof to each such Lender or the Administrative Agent that has accepted such offer
in respect of each such Lender that has accepted such offer. Upon the Borrower having made all payments of Term Loans and other
amounts then due and owing to any Lender required by the preceding sentence, any Event of Default arising under subsection 8(j)
by reason of such Change of Control shall be deemed not to have occurred or be continuing; or
(b) effect any extension, refinancing, refunding, replacement or renewal of Indebtedness under the ABL Loan Documents, unless such
refinancing Indebtedness, to the extent secured by any assets of any Loan Party (other than any such assets that constitute ABL
Accounts Collateral as defined in the Guarantee and Collateral Agreement), is secured only by assets of the Loan Parties that
constitute Collateral for the obligations of the Borrower hereunder and under the other Loan Documents pursuant to a security
agreement subject to the Intercreditor Agreement or, another applicable intercreditor agreement that is no less favorable to the
Secured Parties than the Intercreditor Agreement (as the same may be amended, supplemented, waived or otherwise modified from
time to time, a “Replacement Intercreditor Agreement”).
SECTION
8 EVENTS OF DEFAULT.
If
any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when due in accordance with the terms hereof (whether at stated maturity,
by mandatory prepayment or otherwise); or the Borrower shall fail to pay any interest on any Loan, or any other amount payable
hereunder, within five days after any such interest or other amount becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document (or in any amendment,
modification or supplement hereto or thereto) or that is contained in any certificate furnished at any time by or on behalf of
any Loan Party pursuant to this Agreement or any such other Loan Document shall prove to have been incorrect in any material respect
on or as of the date made or deemed made and the circumstances giving rise to such misrepresentation, if capable of alteration,
are not altered so as to make such representation or warranty correct in all material respects by the date falling 30 days after
the date on which written notice thereof shall have been given to the Borrower by the Administrative Agent or the Required Lenders;
or
(c) Any Loan Party shall default in the observance or performance of any agreement contained in Section 7; or
(d) Any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other
Loan Document (other than as provided in subsections 8(a) through 8(c)), and such default shall continue unremedied for a period
of, in the case of a default with respect to reporting obligations under subsection 6.1, 180 days, and in the case of any other
default, 30 days, in each case after the date on which written notice thereof shall have been given to the Borrower by the Administrative
Agent or the Required Lenders; or
(e) (i) Any Loan Party or any of its Restricted Subsidiaries shall default in any payment of principal of or interest on any
Indebtedness for borrowed money, or any Loan Party or any of its Material Restricted Subsidiaries shall default in any payment
of principal of or interest on any Indebtedness, in each case (excluding the Loans, any other Indebtedness under this Agreement,
and any Indebtedness owed to the Borrower or any Loan Party) in excess of $150.0 million beyond the period of grace (not to exceed
30 days), if any, provided in the instrument or agreement under which such Indebtedness was created; or (ii) any Loan Party
or any of its Material Restricted Subsidiaries shall default in the observance or performance of any other agreement or condition
relating to any Indebtedness referred to in clause (i) above (excluding the Loans, any other Indebtedness under this Agreement,
and any Indebtedness owed to the Borrower or any Loan Party) or contained in any instrument or agreement evidencing, securing
or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition
is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders)
to cause, with the giving of notice or lapse of time if required, such Indebtedness to become due prior to its stated maturity
(an “Acceleration”; and the term “Accelerated” shall have a correlative meaning), and (x)
such time shall have lapsed and, if any notice (a “Default Notice”) shall be required to commence a grace period
or declare the occurrence of an event of default before notice of Acceleration may be delivered, such Default Notice shall have
been given, (y) such default shall not have been remedied or waived by or on behalf of such holder or holders, and (z)
such Indebtedness shall have been Accelerated and such Acceleration shall not have been rescinded (provided that clause (ii) shall
not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness, if such sale or transfer is permitted hereunder or (y) any termination event or similar
event pursuant to the terms of any Hedge Agreement); or
(f) If (i) any Loan Party or any of its Material Restricted Subsidiaries shall commence any case, proceeding or other action
(A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief
with respect to it or its debts (excluding, in each case, the solvent liquidation or reorganization of any Foreign Subsidiary
of the Borrower that is not a Loan Party), or (B) seeking appointment of a receiver, interim receiver, receivers, receiver
and manager, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets,
or any Loan Party or any of its Material Restricted Subsidiaries shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against any Loan Party or any of its Material Restricted Subsidiaries any case, proceeding
or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed, undischarged, unstayed or unbonded for a period of 60 days;
or (iii) there shall be commenced against any Loan Party or any of its Material Restricted Subsidiaries any case, proceeding
or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial
part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof; or (iv) any Loan Party or any of its Material Restricted
Subsidiaries shall take any corporate or other similar organizational action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Loan Party or
any of its Material Restricted Subsidiaries shall be generally unable to, or shall admit in writing its general inability to,
pay its debts as they become due; or
(g) (i) Any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise
on the assets of either of the Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is in the reasonable
opinion of the Administrative Agent likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv)
any Single Employer Plan shall terminate for purposes of Title IV of ERISA other than a standard termination pursuant to Section
4041(b) of ERISA, (v) either of the Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion of the
Administrative Agent is reasonably likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization
of, a Multiemployer Plan, or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, would
be reasonably expected to result in a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against any Loan Party or any of its Material Restricted Subsidiaries involving
in the aggregate at any time a liability (net of any insurance or indemnity payments actually received in respect thereof prior
to or within 60 days from the entry thereof, or to be received in respect thereof in the event any appeal thereof shall be unsuccessful)
of $150.0 million or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 60 days from the entry thereof; or
(i) (i) The Guarantee and Collateral Agreement shall, or any other Security Document covering a significant portion of the
Collateral (at any time after its execution, delivery and effectiveness) shall, cease for any reason to be in full force and effect
(other than pursuant to the terms hereof or thereof), or any Loan Party in each case that is a party to such Security Document
shall so assert in writing or (ii) the Lien created by any of the Security Documents shall cease to be perfected and enforceable
in accordance with its terms or of the same effect as to perfection and priority purported to be created thereby with respect
to any significant portion of the Collateral (other than in connection with any termination of such Lien in respect of any Collateral
as permitted hereby or by any Security Document), and such failure of such Lien to be perfected and enforceable with such priority
shall have continued unremedied for a period of 20 days; or
(j) A Change of Control shall have occurred;
then,
and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of subsection 8(f) with
respect to the Borrower, the Commitments, if any, shall automatically immediately terminate and the Loans (with accrued interest
thereon) and all other amounts owing under this Agreement shall immediately become due and payable and (B) if such event
is any other Event of Default, (i) with the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Commitments, if any, to
be terminated forthwith, whereupon the Commitments, if any, shall immediately terminate, and/or (ii) with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall,
by notice to the Borrower, declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement to be due and payable forthwith, whereupon the same shall immediately become due and payable.
Except
as expressly provided above in this Section 8, to the maximum extent permitted by applicable law, presentment, demand, protest
and all other notices of any kind are hereby expressly waived.
SECTION
9 THE AGENTS AND THE OTHER REPRESENTATIVES.
9.1 Appointment. Each Lender hereby irrevocably designates and appoints Citicorp, as the Administrative Agent and Collateral
Agent of such Lender under this Agreement and the other Loan Documents, and each such Lender irrevocably authorizes Citicorp,
as Administrative Agent for such Lender, to take such action on its behalf under the provisions of this Agreement and the other
Loan Documents and to exercise such powers and perform such duties as are expressly delegated to or required of the Administrative
Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Agents and the Lead Arrangers shall not
have any duties or responsibilities, except, in the case of the Administrative Agent and the Collateral Agent, those expressly
set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Agents
or the Lead Arrangers. Each of the Agents may perform any of their respective duties under this Agreement, the other Loan Documents
and any other instruments and agreements referred to herein or therein by or through its respective officers, directors, agents,
employees or affiliates or delegate any and all such rights and powers to, any one or more sub-agents appointed by such Agent
(it being understood and agreed, for avoidance of doubt and without limiting the generality of the foregoing, that the Administrative
Agent and Collateral Agent may perform any of their respective duties under the Security Documents by or through one or more of
their respective affiliates). The exculpatory provisions of this Section 9 shall apply to any such sub-agent and the officers,
directors, agents, employees or affiliates of each Agent and any such sub-agent, and shall apply to their respective activities
in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Notwithstanding
the foregoing, the Administrative Agent agrees to act as the U.S. federal withholding Tax agent in respect of all amounts payable
by it under the Loan Documents.
9.2 Delegation of Duties. In performing its functions and duties under this Agreement, each Agent shall act solely as agent
for the Lenders and, as applicable, the other Secured Parties, and no Agent assumes any (and shall not be deemed to have assumed
any) relationship of agency or trust with or for the Borrower or any of its Subsidiaries. Each Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact (including the Collateral Agent in
the case of the Administrative Agent), and shall be entitled to advice of counsel concerning all matters pertaining to such duties.
No Agent shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact or counsel selected by it with
reasonable care.
9.3 Exculpatory Provisions. None of the Administrative Agent or any Lead Arrangers nor any of their officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (a) liable for any action taken or omitted to be taken by such Person under or
in connection with this Agreement or any other Loan Document (except for the gross negligence or willful misconduct of such Person
or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates) or (b) responsible in any manner to any
of the Lenders for (i) any recitals, statements, representations or warranties made by the Borrower or any other Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent or any Lead Arranger under or in connection with, this
Agreement or any other Loan Document, (ii) the value, validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any Notes or any other Loan Document, (iii) any failure of the Borrower or any other Loan Party to perform its obligations
hereunder or under any other Loan Document, (iv) the performance or observance of any of the terms, provisions or conditions of
this Agreement or any other Loan Document, (v) the satisfaction of any of the conditions precedent set forth in any Loan Documents
or (vi) the existence or possible existence of any Default or Event of Default. Neither any Agent nor any Lead Arranger shall
be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of the
Borrower or any other Loan Party. Each Lender agrees that, except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder or given to the Administrative Agent for the account of or
with copies for the Lenders, the Agents and the Lead Arrangers shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects
or creditworthiness of the Borrower or any other Loan Party which may come into the possession of the Agents and the Lead Arrangers
or any of their officers, directors, employees, agents, attorneys-in-fact or Affiliates.
9.4 Reliance by the Agents. The Agents shall be entitled to rely, and shall be fully protected (and shall have no liability
to any Person) in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to the Borrower),
independent accountants and other experts selected by any Agent. The Agents may deem and treat the payee of any Note as the owner
thereof for all purposes unless such Note shall have been transferred in accordance with subsection 10.6 and all actions required
by such subsection in connection with such transfer shall have been taken. Any request, authority or consent of any Person or
entity who, at the time of making such request or giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any Note or Notes
issued in exchange therefor. The Agents shall be fully justified as between itself and the Lenders in failing or refusing to take
any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required
Lenders and/or such other requisite percentage of the Lenders as is required pursuant to subsection 10.1(a) as it deems appropriate
or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action. The Agents shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement and any Notes and the other Loan Documents in accordance with a request of the
Required Lenders and/or such other requisite percentage of the Lenders as is required pursuant to subsection 10.1(a), and such
request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
9.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default hereunder unless the Administrative Agent has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the
event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders.
The Administrative Agent shall take such action reasonably promptly with respect to such Default or Event of Default as shall
be directed by the Required Lenders and/or such other requisite percentage of the Lenders as is required pursuant to subsection
10.1(a); provided that unless and until the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the Lenders.
9.6 Acknowledgements and Representations by Lenders. Each Lender expressly acknowledges that none of the Administrative Agent
or the Lead Arrangers nor any of their officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Agents or any Lead Arranger hereafter taken, including any review of the affairs of
the Borrower or any other Loan Party, shall be deemed to constitute any representation or warranty by the Agents or such Lead
Arranger to any Lender. Each Lender represents to the Administrative Agent and warrants to the Agents, the Lead Arrangers and
each of the Loan Parties that it has had the opportunity to review each document made available to it on the Electronic Platform
in connection with this Agreement and has acknowledged and accepted the terms and conditions applicable to the recipients thereof.
Each Lender further represents to the Agent, the Lead Arrangers and each of the Loan Parties that, independently and without reliance
upon the Agents, the Lead Arrangers or any other Lender, and based on such documents and information as it has deemed appropriate,
it has made and will make, its own appraisal of and investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and the other Loan Parties, it has made its own decision to make its Loans hereunder
and enter into this Agreement and it will make its own decisions in taking or not taking any action under this Agreement and the
other Loan Documents and, except as expressly provided in this Agreement, neither the Agents nor any Lead Arranger shall have
any duty or responsibility, either initially or on a continuing basis, to provide any Lender or the holder of any Note with any
credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any
time or times thereafter. Each Lender represents to each other party hereto that it is a bank, savings and loan association or
other similar savings institution, insurance company, investment fund or company or other financial institution which makes or
acquires commercial loans in the ordinary course of its business, that it is participating hereunder as a Lender for such commercial
purposes, and that it has the knowledge and experience to be and is capable of evaluating the merits and risks of being a Lender
hereunder. Each Lender acknowledges and agrees to comply with the provisions of subsection 10.6 applicable to the Lenders hereunder.
9.7 Indemnification.
(a) The Lenders agree to indemnify each Agent (or any Affiliate thereof), ratably according to their respective Total Credit Percentages
in effect on the date on which indemnification is sought under this subsection 9.7, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including at any time following the payment of the Loans) be imposed on, incurred by or asserted against any
Agent (or any Affiliate thereof) in any way relating to or arising out of this Agreement, any of the other Loan Documents or the
transactions contemplated hereby or thereby or any action taken or omitted by any Agent (or any Affiliate thereof) under or in
connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent arising from (i) such Agent’s gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final nonappealable decision) or (ii) claims made or legal proceedings commenced against such Agent by
any security holder or creditor thereof arising out of and based upon rights afforded any such security holder or creditor solely
in its capacity as such. All amounts due under this subsection 9.7 shall be payable not later than three Business Days after demand
therefor. The agreements in this subsection 9.7(a) shall survive the payment of the Loans and all other amounts payable hereunder.
(b) Any Agent shall be fully justified in failing or refusing to take any action hereunder and under any other Loan Document (except
actions expressly required to be taken by it hereunder or under the Loan Documents) unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may incur by reason of taking
or continuing to take any such action.
9.8 The Agents and Other Representatives in Their Individual Capacity. The Agents, the Lead Arrangers and their Affiliates
may make loans to, accept deposits from and generally engage in any kind of business with the Borrower or any other Loan Party
as though such Agent and the Lead Arrangers were not such Agent or the Lead Arrangers hereunder and under the other Loan Documents.
With respect to Loans made or renewed by them and any Note issued to them, the Agents and the Lead Arrangers shall have the same
rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though they were
not an Agent or a Lead Arranger, and the terms “Lender” and “Lenders” shall include the Agents and the
Lead Arrangers in their individual capacities.
9.9 Collateral Matters.
(a) Each Lender authorizes and directs the Collateral Agent to enter into (x) the Security Documents, the Intercreditor Agreement,
and any Replacement Intercreditor Agreement for the benefit of the Lenders and the other Secured Parties, (y) any amendments,
amendments and restatements, restatements or waivers of or supplements to or other modifications to the Security Documents, any
Intercreditor Agreement and any Replacement Intercreditor Agreement or enter into a separate intercreditor agreement in connection
with the incurrence by any Loan Party or any Subsidiary thereof of Additional Indebtedness (each an “Intercreditor Agreement
Supplement”) to permit such Additional Indebtedness to be secured by a valid, perfected lien (with such priority as
may be designated by the relevant Loan Party or Subsidiary, to the extent such priority is permitted by the Loan Documents) and
(z) any Incremental Commitment Amendment as provided in subsection 2.5, any Increase Supplement as provided in subsection
2.5, any Lender Joinder Agreement as provided in subsection 2.5, any Extension Amendment as provided in subsection 2.6, any agreement
required in connection with a Permitted Debt Exchange Offer pursuant to subsection 2.7 and any Specified Refinancing Amendment
as provided in subsection 2.8. Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed
to agree, that, except as otherwise set forth herein, any action taken by the Administrative Agent, the Collateral Agent or the
Required Lenders in accordance with the provisions of this Agreement, the Security Documents, any Intercreditor Agreement or any
Replacement Intercreditor Agreement (both as amended by any Intercreditor Agreement Supplement), any Incremental Commitment Amendment,
any Increase Supplement, any Lender Joinder Agreement, any Extension Amendment, any agreement required in connection with a Permitted
Debt Exchange Offer or any Specified Refinancing Amendment, and the exercise by the Agents or the Required Lenders of the powers
set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding
upon all of the Lenders. The Administrative Agent and the Collateral Agent are hereby authorized on behalf of all of the Lenders,
without the necessity of any notice to or further consent from any Lender, from time to time, to take any action with respect
to any Collateral or Security Documents which may be necessary to perfect and maintain perfected the security interest in and
liens upon the Collateral granted pursuant to the Security Documents. Each Lender agrees that it will not have any right individually
to enforce or seek to enforce any Security Document or to realize upon any Collateral for the Loans unless instructed to do so
by the Collateral Agent, it being understood and agreed that such rights and remedies may be exercised only by the Collateral
Agent. The Collateral Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining
of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any guarantee by
any Subsidiary (including extensions beyond the Restatement Effective Date or in connection with assets acquired, or Subsidiaries
formed or acquired, after the Restatement Effective Date) where it determines that such action cannot be accomplished without
undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the
Security Documents.
(b) The Lenders hereby authorize the Administrative Agent and the Collateral Agent, as applicable, in each case at its option and
in its discretion, to (A) release any Lien granted to or held by such Agent upon any Collateral (i) upon payment
and satisfaction of all of the obligations under the Loan Documents at any time arising under or in respect of this Agreement
or the Loan Documents or the transactions contemplated hereby or thereby that are then due and unpaid, (ii) constituting
property being sold or otherwise disposed of (to Persons other than a Loan Party) upon the sale or other disposition thereof in
compliance with subsection 7.4, (iii) owned by any Restricted Subsidiary of the Borrower which becomes an Excluded Subsidiary
or ceases to be a Restricted Subsidiary of the Borrower or constituting Capital Stock or other equity interests of an Excluded
Subsidiary, (iv) if approved, authorized or ratified in writing by the Required Lenders (or such greater amount, to the
extent required by subsection 10.1) or (iv) as otherwise may be expressly provided herein or in the relevant Security Documents;
(B) enter into any intercreditor agreement (including any Intercreditor Agreement and any Replacement Intercreditor Agreement)
on behalf of, and binding with respect to, the Lenders and their interest in designated assets, to give effect to any Special
Purpose Financing, including to clarify the respective rights of all parties in and to designated assets; (C) to subordinate
any Lien on any Excluded Assets (as defined in the Guarantee and Collateral Agreement) (or to confirm in writing the absence of
any Lien thereon) or on any property granted to or held by such Agent under any Loan Document, to the holder of any Permitted
Lien; and (D) to release any Restricted Subsidiary of the Borrower from its Obligations under any Loan Documents to which
it is a party (including its Subsidiary Guarantee) if such Person ceases to be a Restricted Subsidiary of the Borrower or becomes
an Excluded Subsidiary. Upon request by the Administrative Agent or the Collateral Agent, at any time, the Lenders will confirm
in writing such Agent’s authority to release particular types or items of Collateral pursuant to this subsection 9.9.
(c) The Lenders hereby authorize the Administrative Agent and the Collateral Agent, as the case may be, in each case at its option
and in its discretion, to enter into any amendment, amendment and restatement, restatement, waiver, supplement or modification,
and to make or consent to any filings or to take any other actions, in each case as contemplated by subsection 10.17. Upon request
by any Agent, at any time, the Lenders will confirm in writing the Administrative Agent’s and the Collateral Agent’s
authority under this subsection.
(d) No Agent shall have any obligation whatsoever to the Lenders to assure that the Collateral exists or is owned by the Borrower
or any of its Subsidiaries or is cared for, protected or insured or that the Liens granted to any Agent herein or pursuant hereto
have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority,
or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the
rights, authorities and powers granted or available to the Agents in this subsection 9.9 or in any of the Security Documents,
it being understood and agreed by the Lenders that in respect of the Collateral, or any act, omission or event related thereto,
each Agent may act in any manner it may deem appropriate, in its sole discretion, given such Agent’s own interest in the
Collateral as Lender and that no Agent shall have any duty or liability whatsoever to the Lenders, except for its gross negligence
or willful misconduct.
(e) Notwithstanding any provision herein to the contrary, any Security Document may be amended (or amended and restated), restated,
waived, supplemented or modified as contemplated by and in accordance with subsection 10.1 or subsection 10.17 with the written
consent of the Administrative Agent or the Collateral Agent (as applicable) party thereto and the Loan Party party thereto.
(f) The Collateral Agent may, and hereby does, appoint the Administrative Agent as its agent for the purposes of holding any Collateral
and/or perfecting the Collateral Agent’s security interest therein and for the purpose of taking such other action with
respect to the Collateral as such Agents may from time to time agree.
9.10 Successor Agent. Subject to the appointment of a successor as set forth herein, the Administrative Agent and the
Collateral Agent may resign as Administrative Agent or Collateral Agent, respectively, upon 10 days’ notice to the Lenders
and the Borrower and if the Administrative Agent or the Collateral Agent is a Defaulting Lender or an Affiliate of a Defaulting
Lender, either the Required Lenders or the Borrower may, upon 10 days’ notice to the Administrative Agent, remove such Agent.
If the Administrative Agent or Collateral Agent shall resign or be removed as Administrative Agent or Collateral Agent, as applicable,
under this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent
for the Lenders, which successor agent shall be subject to approval by the Borrower (which approval shall not be unreasonably withheld
or delayed if such successor is a commercial bank with a consolidated combined capital and surplus of at least $5,000.0 million),
whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent or the Collateral Agent,
as applicable, and the term “Administrative Agent” or “Collateral Agent,” as applicable, shall mean such
successor agent effective upon such appointment and approval, and the former Agent’s rights, powers and duties as Administrative
Agent or Collateral Agent, as applicable, shall be terminated, without any other or further act or deed on the part of such former
Agent or any of the parties to this Agreement or any holders of the Loans. After any retiring Agent’s resignation or removal
as Agent, the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement and the other Loan Documents.
9.11 Other Representatives. None of the entities identified as Lead Arrangers shall have any duties or responsibilities
hereunder or under any other Loan Document in its capacity as such.
9.12 Withholding Tax. To the extent required by any applicable law, the Administrative Agent may withhold from any payment
to any Lender an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any other authority of
the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from amounts
paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or not properly
executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption
from, or reduction of, withholding tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to
the extent that the Administrative Agent has not already been reimbursed by the Borrower and without limiting the obligation of
the Borrower to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including
any interest, additions to tax or penalties thereto, together with all expenses incurred, including legal expenses and any other
out-of-pocket expenses. The agreements in this subsection 9.12 shall survive the resignation and/or replacement of the Administrative
Agent, and assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all other Obligations.
9.13 Approved Electronic Communications. Each of the Lenders and the Loan Parties agrees, that the Administrative Agent
may, but shall not be obligated to, make the Approved Electronic Communications available to the Lenders by posting such Approved
Electronic Communications on IntraLinks™ or a substantially similar electronic platform chosen by the Administrative Agent
to be its electronic transmission system (the “Approved Electronic Platform”). The Approved Electronic Communications
and the Approved Electronic Platform are provided (subject to subsection 10.16) “as is” and “as available.”
Each of the Lenders
and (subject to subsection 10.16) each of the Loan Parties agrees that the Administrative Agent may, but (except as may be required
by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform
in accordance with the Administrative Agent’s generally-applicable document retention procedures and policies.
SECTION 10
MISCELLANEOUS.
10.1 Amendments and Waivers.
(a)
Neither this Agreement nor any other Loan Document, nor any terms hereof or thereof, may be amended, supplemented, modified
or waived except in accordance with the provisions of this subsection 10.1. The Required Lenders may, or, with the written consent
of the Required Lenders, the Administrative Agent and the Collateral Agent may, from time to time, (x) enter into with the
respective Loan Parties hereto or thereto, as the case may be, written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this Agreement or to the other Loan Documents or changing, in
any manner the rights or obligations of the Lenders or the Loan Parties hereunder or thereunder or (y) waive at any Loan
Party’s request, on such terms and conditions as the Required Lenders, the Administrative Agent or the Collateral Agent,
as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any
Default or Event of Default and its consequences; provided, however, that amendments pursuant to subsections
10.1(d) and 10.1(f) may be effected without the consent of the Required Lenders to the extent provided therein; provided
further that no such waiver and no such amendment, supplement or modification shall:
(i)
reduce or forgive the amount or extend the scheduled date of maturity of any Loan or of any scheduled installment thereof
or reduce the stated rate of any interest, commission or fee payable hereunder (other than as a result of any waiver of the applicability
of any post-default increase in interest rates) or extend the scheduled date of any payment thereof or increase the amount or extend
the expiration date of any Lender’s Commitment or change the currency in which any Loan is payable, in each case without
the consent of each Lender directly and adversely affected thereby (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitment of all Lenders shall
not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of
any Lender shall not constitute an increase in the Commitment of such Lender);
(ii)
amend, modify or waive any provision of this subsection 10.1(a) or reduce the percentage specified in the definition of
Required Lenders, or consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement
and the other Loan Documents (other than pursuant to subsection 7.3 or subsection 10.6(a)), in each case without the written consent
of all the Lenders;
(iii)
release Guarantors accounting for substantially all of the value of the Guarantee of the Obligations pursuant to the Guarantee
and Collateral Agreement, or all or substantially all of the Collateral, in each case without the consent of all of the Lenders,
except as expressly permitted hereby or by any Security Document;
(iv) require any Lender to make Loans having an Interest Period of longer than six months without the consent of such Lender;
or
(v)
amend, modify or waive any provision of Section 9 without the written consent of the then Administrative Agent and of any
Lead Arranger directly and adversely affected thereby;
provided, further,
that, notwithstanding the foregoing and in addition to the Liens on the Collateral that the Collateral Agent is authorized to release
pursuant to subsection 9.9(b), the Collateral Agent may, in its discretion, release the Lien on Collateral valued in the aggregate
not in excess of $30.0 million in any fiscal year without the consent of any Lender.
(b)
Any waiver and any amendment, supplement or modification pursuant to this subsection 10.1 shall apply to each of the Lenders
and shall be binding upon the Loan Parties, the Lenders, the Administrative Agent and all future holders of the Loans. In the case
of any waiver, each of the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and
not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent
thereon.
(c)
Notwithstanding any provision herein to the contrary, (x) no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder or under any of the Loan Documents, except to the extent the consent of such
Lender would be required under clause (i) in the further proviso to the second sentence of subsection 10.1(a) and (y) no
Disqualified Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder or under any of the
Loan Documents.
(d)
Notwithstanding any provision herein to the contrary, this Agreement and the other Loan Documents may be amended (i)
to cure any ambiguity, mistake, omission, defect, or inconsistency with the consent of the Borrower and the Administrative Agent,
(ii) in accordance with subsection 2.5 to incorporate the terms of any Incremental Commitments (including to add a new revolving
facility or letter of credit facility under this Agreement with respect to any Incremental Revolving Commitment) with the written
consent of the Borrower and Lenders providing such Incremental Commitments, (iii) in accordance with subsection 2.5 to effectuate
an Extension with the written consent of the Borrower and the Extending Lenders, (iv) in accordance with subsection 2.8
to incorporate the terms of any Specified Refinancing Commitments with the consent of the Borrower and the applicable Specified
Refinancing Lenders, and (v) with the consent of the Borrower and the Administrative Agent (in each case such consent not
to be unreasonably withheld or delayed), in the event any mandatory prepayment or redemption provision in respect of the Net Cash
Proceeds of Asset Dispositions or Recovery Events included or to be included in any Incremental Commitment Amendment would result
in Incremental Term Loans being prepaid or redeemed on a more than ratable basis with the Initial Term Loans, the Incremental B-2019
Term Loans and/or the Incremental B-2021 Term Loans in respect of the Net Cash Proceeds from any such Asset Disposition or Recovery
Event prepayment to the extent such Net Cash Proceeds are required to be applied to repay Term Loans hereunder pursuant to subsection
3.4(c), to provide for mandatory prepayments of the Initial Term Loans, the Incremental B-2019 Term Loans and/or the Incremental
B-2021 Term Loans such that, after giving effect thereto, the prepayments made in respect of such Incremental Term Loans are not
on more than a ratable basis. Without limiting the generality of the foregoing, any other provision of this Agreement and the other
Loan Documents, including subsection 3.4(a), 3.8(a) or 10.7 hereof, may be amended as set forth in the immediately preceding sentence
pursuant to any Incremental Commitment Amendment, any Extension Amendment or any Specified Refinancing Amendment, as the case may
be, to provide for non-pro rata borrowings and payments of any amounts hereunder as between any Tranches, including any Term Loans,
any Incremental Commitments or Incremental Loans, any Extended Tranche and any Specified Refinancing Tranche, or to provide for
the inclusion, as appropriate, of the Lenders of any Extended Tranche, Specified Refinancing Tranche, Incremental Commitments or
Incremental Loans in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder. The Administrative
Agent hereby agrees (if requested by the Borrower) to execute any amendment referred to in this subsection 10.1(d) or an acknowledgement
thereof.
(e)
Notwithstanding any provision herein to the contrary, this Agreement may be amended (or deemed amended) or amended and restated
with the written consent of the Required Lenders, the Administrative Agent and the Borrower (x) to add one or more additional
credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued
interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the existing
Facilities and the accrued interest and fees in respect thereof, (y) to include, as appropriate, the Lenders holding such
credit facilities in any required vote or action of the Required Lenders or of the Lenders of each Facility or Tranche hereunder
and (z) to provide class protection for any additional credit facilities.
(f)
Notwithstanding any provision herein to the contrary, any Security Document may be amended (or amended and restated), restated,
waived, supplemented or modified to better implement the intentions of this Agreement and the other Loan Documents or as required
by local law to give effect to or to protect any security interest for the benefit of the Secured Parties in any property so that
the security interests comply with applicable law, or as contemplated by subsection 10.17, in each case with the written consent
of the Agent party thereto and the Loan Party party thereto.
(g)
If, in connection with any proposed change, waiver, discharge or termination of or to any of the provisions of this Agreement
and/or any other Loan Document as contemplated by subsection 10.1(a), the consent of each Lender or each directly and adversely
affected Lender, as applicable, is required and the consent of the Required Lenders at such time is obtained but the consent of
one or more of such other Lenders whose consent is required is not obtained (each such other Lender, a “Non-Consenting
Lender”), then the Borrower may, on notice to the Administrative Agent and the Non-Consenting Lender, (A) replace
such Non-Consenting Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to subsection 10.6
(with the assignment fee and any other costs and expenses to be paid by the Borrower in such instance) all of its rights and obligations
under this Agreement to one or more assignees; provided that neither the Administrative Agent nor any Lender shall
have any obligation to the Borrower to find a replacement Lender; provided, further, that the
applicable assignee shall have agreed to the applicable change, waiver, discharge or termination of this Agreement and/or the other
Loan Documents; and provided, further, that all obligations of the Borrower owing to the Non-Consenting
Lender relating to the Loans and participations so assigned shall be paid in full by the assignee Lender (or, at its option, by
the Borrower) to such Non-Consenting Lender concurrently with such Assignment and Acceptance or (B) prepay the Loans of
such Non-Consenting Lender, in whole or in part, subject to subsection 3.12, without premium or penalty. In connection with any
such replacement under this subsection 10.1(g), if the Non-Consenting Lender does not execute and deliver to the Administrative
Agent a duly completed Assignment and Acceptance and/or any other documentation necessary to reflect such replacement by the later
of (a) the date on which the replacement Lender executes and delivers such Assignment and Acceptance and/or such other documentation
and (b) the date as of which all obligations of the Borrower owing to the Non-Consenting Lender relating to the Loans and
participations so assigned shall be paid in full by the assignee Lender to such Non-Consenting Lender, then such Non-Consenting
Lender shall be deemed to have executed and delivered such Assignment and Acceptance and/or such other documentation as of such
date and the Borrower shall be entitled (but not obligated) to execute and deliver such Assignment and Acceptance and/or such other
documentation on behalf of such Non-Consenting Lender.
(h)
Notwithstanding anything to the contrary herein, at any time and from time to time, upon notice to the Administrative Agent
(who shall promptly notify the applicable Lenders) specifying in reasonable detail the proposed terms thereof, the Borrower may
make one or more loan modification offers to all the Lenders of any Tranche that would, if and to the extent accepted by any such
Lender, (a) change the Applicable Margin, premium and/or fees payable with respect to the Loans and Commitments under such
Facility (in each case solely with respect to the Loans and Commitments of accepting Lenders in respect of which an acceptance
is delivered), (b) add any additional or different financial or other covenants or other provisions that are agreed between
the Borrower, the Administrative Agent and the accepting Lenders; and (c) treat the Loans and Commitments so modified as
a new “Facility” and a new “Tranche” for all purposes under this Agreement; provided that
(i) such loan modification offer is made to each Lender under the applicable Facility on the same terms and subject to the
same procedures as are applicable to all other Lenders under such Facility (which procedures in any case shall be reasonably satisfactory
to the Administrative Agent) and (ii) no loan modification shall affect the rights or duties of, or any fees or other amounts
payable to, the Administrative Agent, without its prior written consent. In connection with any such loan modification, the Borrower
and each accepting Lender shall execute and deliver to the Administrative Agent such agreements and other documentation as the
Administrative Agent shall reasonably specify to evidence the acceptance of the applicable loan modification offer and the terms
and conditions thereof, and this Agreement and the other Loan Documents shall be amended in a writing (which may be executed and
delivered by the Borrower and the Administrative Agent and shall be effective only with respect to the applicable Loans and Commitments
of Lenders that shall have accepted the relevant loan modification offer (and only with respect to Loans and Commitments as to
which any such Lender has accepted the loan modification offer) (each such accepting Lender, a “Modifying Lender”))
to the extent necessary or appropriate, in the judgment of the Administrative Agent, to reflect the existence of, and to give effect
to the terms and conditions of, the applicable loan modification (including the addition of such modified Loans and/or Commitments
as a “Facility” or a “Tranche” hereunder). No Lender shall have any obligation whatsoever to accept any
loan modification offer, and may reject any such offer in its sole discretion (each such non-accepting Lender, a “Non-Modifying
Lender”). The Borrower shall have the right, at its sole expense and effort (A) to seek one or more Persons reasonably
satisfactory to the Administrative Agent and the Borrower to each become a substitute Lender and assume all or part of the Commitment
of any Non-Modifying Lender and the Borrower, the Administrative Agent and any such substitute Lender shall execute and deliver,
and such Non-Modifying Lender shall thereupon be deemed to have executed and delivered, a duly completed Assignment and Acceptance
to effect such substitution or (B) upon notice to the Administrative Agent, and, at the Borrower’s option, to prepay
the Loans and/or terminate the Commitments of such Non-Modifying Lender, in whole or in part, without premium or penalty.
10.2 Notices.
(a)
All notices, requests, and demands to or upon the respective parties hereto to be effective shall be in writing (including
telecopy or electronic mail), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made
when delivered by hand, or three days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice or
electronic mail, when received, or, in the case of delivery by a nationally recognized overnight courier, when received, addressed
as follows in the case of the Borrower, Administrative Agent and the Collateral Agent, to their respective addresses on file with
the Administrative Agent (which addresses the Borrower shall be entitled to receive from the Administrative Agent upon request)
in the case of the other parties hereto, or to such other address as may be hereafter notified by the respective parties hereto
and any future holders of the Loans:
| The Borrower: | US Foods, Inc.
9399 W. Higgins Road
Suite 500
Rosemont IL 60018
Attention: General Counsel
Telephone: (847) 720-8000 |
| with copies to: | Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, New York 10019
Attention: Joseph D. Zavaglia
Facsimile: 212-474-3700
Telephone: 212-474-1724 |
| The Administrative Agent: | Citicorp North America, Inc.
1615 Brett Road, Ops III
New Castle, DE 19720
Facsimile: (212) 994-0961
Telephone: (302) 894-6010
Email: glagentofficeops@citi.com |
| The Collateral Agent: | Citicorp North America, Inc.
CRMS Documentation Unit
580 Crosspoint Pkwy
Getzville, NY 14068
Email: crms.us.icg.documentation@citi.com |
provided that any notice,
request or demand to or upon the Administrative Agent or the Lenders pursuant to subsection 2.3, 3.2, 3.4 or 3.8 shall not be effective
until received.
(b)
Without in any way limiting the obligation of any Loan Party and its Subsidiaries to confirm in writing any telephonic notice
permitted to be given hereunder, the Administrative Agent may prior to receipt of written confirmation act without liability upon
the basis of such telephonic notice, believed by the Administrative Agent in good faith to be from a Responsible Officer of such
party.
(c)
Effectiveness of Facsimile Documents and Signatures. Loan Documents may be transmitted and/or signed by facsimile
or other electronic means (i.e., a “pdf” or “tiff”). The effectiveness of any such documents and signatures
shall, subject to applicable Law, have the same force and effect as manually signed originals and shall be binding on each Loan
Party, each Agent and each Lender. The Administrative Agent may also require that any such documents and signatures be confirmed
by delivery of a signed original thereof; provided that the failure to request or deliver the same shall not limit
the effectiveness of any facsimile or other electronic document or signature.
(d)
Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished
by electronic communication (including electronic mail and Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices to any Lender pursuant to Section 2
if such Lender, has notified the Administrative Agent that it is incapable of receiving notices under such Section by electronic
communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications
to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes (with the
Borrower’s consent), (i) notices and other communications sent to an e-mail address shall be deemed received upon
the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication
is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet
or intranet website shall be deemed received upon the posting thereof.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative
Agent, any Lender or any Loan Party, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate
as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations and warranties made hereunder and in the other Loan
Documents (or in any amendment, modification or supplement hereto or thereto) and in any certificate delivered pursuant hereto
or such other Loan Documents shall survive the execution and delivery of this Agreement and the making of the Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the Agents and the Lead Arrangers for
(1) all their reasonable and documented out-of-pocket costs and expenses incurred in connection with (i) the syndication of the
Facilities and the development, preparation, execution and delivery of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, (ii) the consummation
and administration of the transactions (including the syndication of the Term Loan Commitments contemplated hereby and thereby)
and (iii) efforts to monitor the Loans and verify, protect, evaluate, assess, appraise, collect, sell, liquidate or otherwise dispose
of any of the Collateral in accordance with the terms of the Loan Documents, and (2) the reasonable and documented fees and disbursements
of Cahill Gordon & Reindel LLP, and such other special or local counsel, consultants, advisors, appraisers and auditors
whose retention (other than during the continuance of an Event of Default) is approved by the Borrower, (b) to pay or reimburse
each Lender, the Lead Arrangers and the Agents for all their reasonable and documented out-of-pocket costs and expenses incurred
in connection with the enforcement of any rights under this Agreement, the other Loan Documents and any other documents prepared
in connection herewith or therewith, including the fees and disbursements of counsel to the Agents (limited to one firm of counsel
for the Agents and, if necessary, one firm of local counsel in each appropriate jurisdiction, in each case for the Agents), (c)
to pay, indemnify, or reimburse each Lender, the Lead Arrangers and the Agents for, and hold each Lender, the Lead Arrangers and
the Agents harmless from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from
any delay in paying, stamp, excise and other similar taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any
such other documents, and (d) to pay, indemnify or reimburse each Lender, the Lead Arrangers, each Agent, and each Related Party
of any of the foregoing persons (each, an “Indemnitee”) for, and hold each Indemnitee harmless from and against, any
and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (in the case of fees and disbursements of counsel, limited to one firm of counsel for all Indemnitees
and, if necessary, one firm of local counsel in each appropriate jurisdiction, in each case for all Indemnitees (and, in the case
of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs the Borrower of such conflict
and thereafter, after receipt of the Borrower’s consent (which shall not be unreasonably withheld), retains its own counsel,
of another firm of counsel for such affected Indemnitee)) with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating
to the use of proceeds of the Loans, or the violation of, noncompliance with or liability under, any Environmental Law attributable
to the operations of the Borrower or any of its Subsidiaries or any property or facility owned, leased or operated by the Borrower
or any of its Subsidiaries (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”), provided
that the Borrower shall not have any obligation hereunder to the any Agent, any Lead Arranger or any Lender (or any Related Party
of any such Agent, Lead Arranger or Lender) with respect to Indemnified Liabilities arising from (i) the gross negligence, bad
faith or willful misconduct (as determined by a court of competent jurisdiction in a final and nonappealable judgment) of such
Agent or Lender (or any Related Party of such Agent or Lender), (ii) claims made or legal proceedings commenced against any Agent,
Lead Arranger or Lender (or any Related Party of any thereof) by any security holder or creditor thereof arising out of and based
upon rights afforded any such security holder or creditor solely in its capacity as such, (iii) any material breach of any Loan
Document by such Agent, Lead Arranger or Lender (or any Related Party of any thereof) as determined by a court of competent jurisdiction
in a final and nonappealable decision or (iv) claims against such Indemnitee or any Related Party brought by any other Indemnitee
that do not involve claims against any Lead Arranger or Agent in its capacity as such. To the fullest extent permitted under applicable
law, neither the Borrower nor any Indemnitee shall be liable for any consequential or punitive damages in connection with the Facilities.
All amounts due under this subsection 10.5 shall be payable not later than 30 days after written demand therefor. Statements reflecting
amounts payable by the Loan Parties pursuant to this subsection 10.5 shall be submitted to the address of the Borrower set forth
in subsection 10.2, or to such other Person or address as may be hereafter designated by the Borrower in a notice to the Administrative
Agent. Notwithstanding the foregoing, except as provided in clauses (b) and (c) above, the Borrower shall have no obligation under
this subsection 10.5 to any Indemnitee with respect to any Taxes imposed, levied, collected, withheld or assessed by any Governmental
Authority. The agreements in this subsection 10.5 shall survive repayment of the Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that (i) other than in accordance with subsection 7.3, the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and
any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in accordance with subsection 2.6(e), 3.13(d), 10.1(g)
or 10.1(h) or this subsection 10.6.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
other than a Conduit Lender may, in the ordinary course of business and in accordance with applicable law, assign (other than to
a Disqualified Lender or any natural person) to one or more assignees (each, an “Assignee”) all or a portion
of its rights and obligations under this Agreement (including any Tranche of Commitment and/or Loans, pursuant to an Assignment
and Acceptance) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A)
the Borrower; provided that no consent of the Borrower shall be required for an assignment to a Lender, an
affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of Default under subsection 8(a) or 8(f) with respect
to the Borrower has occurred and is continuing, any other Person; provided, further, that if any Lender
assigns all or a portion of its rights and obligations under this Agreement to one of its affiliates in connection with or in contemplation
of the sale or other disposition of its interest in such affiliate, the Borrower’s prior written consent shall be required
for such assignment; and
(B)
the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment
to a Lender or an affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A)
except in the case of an assignment to a Lender, an affiliate of a Lender or an Approved Fund or an assignment of the entire
remaining amount of the assigning Lender’s Commitments or Loans under any Tranche, the amount of Commitments or Loans of
the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than $1.0 million unless the Borrower and the Administrative
Agent otherwise consent, provided that (1) no such consent of the Borrower shall be required if an Event of
Default under subsection 8(a) or 8(f) with respect to the Borrower has occurred and is continuing and (2) such amounts shall
be aggregated in respect of each Lender and its affiliates or Approved Funds, if any;
(B)
the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance;
(C)
the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire;
(D) any assignment of Incremental Commitments or Loans to an Affiliated Lender shall also be subject to the requirements of
subsections 10.6(h) and 10.6(i); and
(E)
any Term Loans acquired by Holding, the Borrower or any Restricted Subsidiary shall be retired and cancelled promptly upon
acquisition thereof.
(iii) For the purposes of this subsection 10.6, the term “Approved Fund” has the following meaning: any Person
(other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions
of credit in the ordinary course and 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. Notwithstanding the foregoing, no Lender
shall be permitted to make assignments under this Agreement to any Disqualified Lender and any such assignment shall be void ab
initio, except to the extent the Borrower has consented to such assignment in writing (in which case such Lender will not be
considered a Disqualified Lender solely for that particular assignment).
(iv) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below, from and after the effective date specified
in each Assignment and Acceptance the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of (and bound by any
related obligations under) subsections 3.10, 3.11, 3.12, 3.13 and 10.5, and bound by its continuing obligations under subsection
10.16). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection
10.6 shall, to the extent it would comply with subsection 10.6(c), be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with subsection 10.6(c).
(v) The Borrower hereby designates the Administrative Agent, and the Administrative Agent agrees, to serve as the Borrower’s
agent, solely for purposes of this subsection 10.6, to maintain at one of its offices in New York, New York a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments
of, and interest and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).
The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative 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, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, the
Collateral Agent and (with respect to its own interest only) any Lender, at any reasonable time and from time to time upon reasonable
prior notice. Notwithstanding anything herein to the contrary, any assignment by a Lender to a Disqualified Lender shall be deemed
null and void ab initio and the Register shall be modified to reflect a reversal of such assignment, and the Borrower shall
be entitled to pursue any remedy available to them (whether at law or in equity, including specific performance to unwind such
assignment) against the Lender and such Disqualified Lender. In no event shall the Administrative Agent be obligated to ascertain,
monitor or inquire as to whether any prospective assignee is a Disqualified Lender or an Affiliated Lender nor shall the Administrative
Agent be obligated to monitor the aggregate amount of Term Loans held by Affiliated Lenders.
(vi) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an Assignee (unless such
assignment is being made in accordance with subsection 2.6(e), 3.13(d), 10.1(g) or 10.1(h), in which case the effectiveness of
such Assignment and Acceptance shall not require execution by assigning Lender), the Assignee’s completed administrative
questionnaire (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in this
subsection10.6(b) and any written consent to such assignment required by this subsection10.6(b), the Administrative Agent shall
accept such Assignment and Acceptance, record the information contained therein in the Register and give prompt notice of such
assignment and recordation to the Borrower. No assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(vii) On or prior to the effective date of any assignment pursuant to this subsection 10.6(b), the assigning Lender shall surrender
any outstanding Notes held by it all or a portion of which are being assigned. Any Notes surrendered by the assigning Lender shall
be returned by the Administrative Agent to the Borrower marked “cancelled.”
Notwithstanding the
foregoing provisions of this subsection 10.6(b) or any other provision of this Agreement, if the Borrower shall have consented
thereto in writing (such consent not to be unreasonably withheld), the Administrative Agent shall have the right, but not the obligation,
to effectuate assignments of Initial Term Loans, Initial Term Loan Commitments, Incremental Loans and Incremental Commitments via
an electronic settlement system acceptable to the Administrative Agent and the Borrower as designated in writing from time to time
to the Lenders by the Administrative Agent (the “Settlement Service”). At any time when the Administrative Agent
elects, in its sole discretion, to implement such Settlement Service, each such assignment shall be effected by the assigning Lender
and proposed Assignee pursuant to the procedures then in effect under the Settlement Service, which procedures shall be subject
to the prior written approval of the Borrower and shall be consistent with the other provisions of this subsection 10.6(b). Each
assigning Lender and proposed Assignee shall comply with the requirements of the Settlement Service in connection with effecting
any assignment of Initial Term Loans, Initial Term Loan Commitments, Incremental Loans and Incremental Commitments pursuant to
the Settlement Service. If so elected by each of the Administrative Agent and the Borrower in writing (it being understood that
the Borrower shall have no obligation to make such an election), the Administrative Agent’s and the Borrower’s approval
of such Assignee shall be deemed to have been automatically granted with respect to any transfer effected through the Settlement
Service. Assignments and assumptions of the Initial Term Loans, Initial Term Loan Commitments, Incremental Loans and Incremental
Commitments shall be effected by the provisions otherwise set forth herein until Administrative Agent notifies Lenders of the Settlement
Service as set forth herein. The Borrower may withdraw its consent to the use of the Settlement Service at any time upon at least
10 Business Days prior written notice to the Administrative Agent, and thereafter assignments and assumptions of the Initial Term
Loans, Initial Term Loan Commitments, Incremental Loans and Incremental Commitments shall be effected by the provisions otherwise
set forth herein.
Furthermore, no Assignee,
which as of the date of any assignment to it pursuant to this subsection 10.6(b) would be entitled to receive any greater payment
under subsection 3.10, 3.11 or 10.5 than the assigning Lender would have been entitled to receive as of such date under such subsections
with respect to the rights assigned, shall be entitled to receive such greater payments unless the assignment was made after an
Event of Default under subsection 8(a) or 8(f) with respect to the Borrower has occurred and is continuing or the Borrower has
expressly consented in writing to waive the benefit of this provision at the time of such assignment.
(c)
(i) Any Lender other than a Conduit Lender may, in the ordinary course of
its business and in accordance with applicable law, without the consent of the Borrower or the Administrative Agent, sell participations
(other than to a Disqualified Lender or a natural person) to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Term
Loan Commitments and the Term Loans owing to it); provided that (A) such Lender’s obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (C) such Lender shall remain the holder of any such Loan for all purposes under this Agreement
and the other Loan Documents, (D) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (E) except
with respect to such matters as to which a Participant has been provided a consent right in accordance with the proviso to the
next succeeding sentence, such Lender shall not provide notice to, or otherwise communicate with, such Participant regarding any
matter relating to this Agreement, any other Loan Document or the Facilities, and (F) in the case of any participation to
a Permitted Affiliated Assignee, such participation shall be governed by the provisions of subsection 10.6(h)(ii) to the same extent
as if each reference therein to an assignment of a Loan were to a participation of a Loan and the references to Affiliated Lender
were to such Permitted Affiliated Assignee in its capacity as a participant. Any agreement pursuant to which a Lender sells such
a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement may provide that, to the
extent of such participation, such Lender will not, without the consent of the Participant, agree to any amendment, modification
or waiver that (1) requires the consent of each Lender directly and adversely affected thereby pursuant to clause (i) or
(iii) of the proviso to the second sentence of subsection 10.1(a) and (2) directly and adversely affects such Participant.
Subject to paragraph (ii) of this subsection 10.6(c), the Borrower agrees that each Participant shall be entitled to the benefits
of (and shall have the related obligations under) subsections 3.10, 3.11, 3.12, 3.13 and 10.5 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to subsection10.6(b). To the extent permitted by law, each Participant
also shall be entitled to the benefits of subsection 10.7(b) as though it were a Lender, provided that such Participant
shall be subject to subsection 10.7(a) as though it were a Lender. Notwithstanding the foregoing, no Lender shall be permitted
to sell participations under this Agreement to any Disqualified Lender and any such participation shall be void ab initio,
except to the extent the Borrower has consented to such participation in writing (in which case such Lender will not be considered
a Disqualified Lender solely for that particular participation). Any attempted participation which does not comply with subsection
10.6 shall be null and void. Notwithstanding the foregoing, each Loan Party and the Lenders acknowledge and agree that the Administrative
Agent shall not have any responsibility to determine the compliance of any Lender with the requirements of this subsection 10.6(c)
(it being understood that each Lender shall be responsible for ensuring its own compliance with the requirements of this subsection
10.6(c)).
(ii)
Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register
on which it enters the name and address of each Participant and the principal amounts (and related interest amount) of each Participant’s
interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided
that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of
any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its
other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that
such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States
Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall
treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this
Agreement notwithstanding any notice to the contrary.
(iii)
No Loan Party shall be obligated to make any greater payment under subsection 3.10, 3.11 or 10.5 than it would have been
obligated to make in the absence of any participation, unless the sale of such participation is made with the prior written consent
of the Borrower and the Borrower expressly waives the benefit of this provision at the time of such participation. No Participant
shall be entitled to the benefits of subsection 3.11 to the extent such Participant fails to comply with subsection 3.11(b) and/or
3.11(c) or to provide the forms and certificates referenced therein to the Lender that granted such participation and such failure
increases the obligation of the Borrower under subsection 3.11.
(iv) Subject to paragraph (ii) of this subsection 10.6(c), any Lender other than a Conduit Lender may also sell participations
on terms other than the terms set forth in paragraph (i) of this subsection 10.6(c), provided such participations
are on terms and to Participants satisfactory to the Borrower and the Borrower has consented to such terms and Participants in
writing.
(d)
Any Lender, without the consent of the Borrower or the Administrative Agent, 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, and this subsection shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute (by foreclosure or otherwise) any such pledgee or Assignee for such Lender
as a party hereto.
(e)
No assignment or participation made or purported to be made to any Assignee or Participant shall be effective without the
prior written consent of the Borrower if it would require the Borrower to make any filing with any Governmental Authority or qualify
any Loan or Note under the laws of any jurisdiction, and the Borrower shall be entitled to request and receive such information
and assurances as it may reasonably request from any Lender or any Assignee or Participant to determine whether any such filing
or qualification is required or whether any assignment or participation is otherwise in accordance with applicable law.
(f)
Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it may have funded hereunder to its designating
Lender without the consent of the Borrower or the Administrative Agent and without regard to the limitations set forth in subsection
10.6(b). The Borrower, each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender
or join any other Person in instituting against a Conduit Lender any domestic or foreign bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any state, federal or provincial bankruptcy or similar law, for one year and one day
after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided,
however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each
other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such
Conduit Lender during such period of forbearance. Each such indemnifying Lender shall pay in full any claim received from the
Borrower pursuant to this subsection 10.6(f) within 30 Business Days of receipt of a certificate from a Responsible Officer of
the Borrower specifying in reasonable detail the cause and amount of the loss, cost, damage or expense in respect of which the
claim is being asserted, which certificate shall be conclusive absent manifest error. Without limiting the indemnification obligations
of any indemnifying Lender pursuant to this subsection 10.6(f), in the event that the indemnifying Lender fails timely to compensate
the Borrower for such claim, any Loans held by the relevant Conduit Lender shall, if requested by the Borrower, be assigned promptly
to the Lender that administers the Conduit Lender and the designation of such Conduit Lender shall be void.
(g)
If the Borrower wishes to replace the Loans or Commitments under any Facility or Tranche in whole or in part with ones having
different terms, it shall have the option, with the consent of the Administrative Agent and subject to at least three Business
Days’ (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) advance notice
to the Lenders of such Facility or Tranche, as applicable, instead of prepaying the Loans or reducing or terminating the Commitments
to be replaced, to (i) require the Lenders of such Facility or Tranche to assign such Loans or Commitments to the Administrative
Agent or its designees and (ii) amend the terms thereof in accordance with subsection 10.1 (with such replacement, if applicable,
being deemed to have been made pursuant to subsection 10.1(f)). Pursuant to any such assignment, all Loans and Commitments to
be replaced shall be purchased at par (allocated among the Lenders of such Facility or Tranche in the same manner as would be
required if such Loans were being optionally prepaid or such Commitments were being optionally reduced or terminated by the Borrower),
accompanied by payment of any accrued interest and fees thereon and any amounts owing pursuant to subsection 3.12. By receiving
such purchase price, the Lenders of such Facility or Tranche, as applicable, shall automatically be deemed to have assigned the
Loans or Commitments under such Facility or Tranche pursuant to the terms of the form of Assignment and Acceptance attached hereto
as Exhibit E, and accordingly no other action by such Lenders shall be required in connection therewith. The provisions
of this paragraph are intended to facilitate the maintenance of the perfection and priority of existing security interests in
the Collateral during any such replacement.
(h)
(i) Notwithstanding anything to the contrary contained herein, (x) any Lender
may, at any time, assign all or a portion of its rights and obligations under this Agreement in respect of its Loans or Commitments
to any Parent, the Borrower, any Subsidiary or an Affiliated Lender and (y) any Parent, the Borrower and any Subsidiary
may, from time to time, purchase or prepay Loans, in each case, on a non-pro rata basis through (1) Dutch auction procedures
open to all applicable Lenders on a pro rata basis in accordance with customary procedures to be agreed between the Borrower and
the Administrative Agent (or other applicable agent managing such auction); provided that (A) any such Dutch
auction by the Borrower or its Subsidiaries shall be made in accordance with subsection 3.4(i) and (B) any such Dutch auction
by any Parent shall be made on terms substantially similar to subsection 3.4(j) or on other terms to be agreed between such Parent
and the Administrative Agent (or other applicable agent managing such auction) or (2) open market purchases; provided
further that:
(ii)
such Affiliated Lender and such other Lender shall execute and deliver to the Administrative Agent an assignment agreement substantially
in the form of Exhibit F hereto (an “Affiliated Lender Assignment and Acceptance”) and the Administrative
Agent shall record such assignment in the Register;
(iii)
at the time of such assignment after giving effect to such assignment, the aggregate principal amount of all Term Loans held (or
participated in) by Affiliated Lenders that are not Affiliated Debt Funds shall not exceed 30.0% of the aggregate principal amount
of all Term Loans outstanding under this Agreement; and
(iv)
any such Loans acquired by (x) Holding, the Borrower or a Restricted Subsidiary shall be retired or cancelled promptly
upon the acquisition thereof and (y) an Affiliated Lender may, with the consent of the Borrower, be contributed to the
Borrower, whether through a Parent or otherwise, and exchanged for debt or equity securities of the Borrower or such Parent that
are otherwise permitted to be issued at such time pursuant to the terms of this Agreement, so long as any Term Loans so acquired
by the Borrower shall be retired and cancelled promptly upon the acquisition thereof.
(v)
Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender that is not an Affiliated Debt Fund shall have
any right to (A) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative
Agent or any Lender to which representatives of the Loan Parties are not invited, (B) receive any information or material
prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and/or one or more
Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives or
(C) receive advice of counsel to the Administrative Agent, the Collateral Agent or any other Lender or challenge their
attorney client privilege.
(vi)
Notwithstanding anything in subsection 10.1 or the definition of “Required Lenders” to the contrary, for purposes
of determining whether the Required Lenders have (A) consented (or not consented) to any amendment or waiver of any provision
of this Agreement or any other Loan Document or any departure by any Loan Party therefrom, (B) otherwise acted on any matter
related to any Loan Document, or (C) directed or required the Administrative Agent or any Lender to undertake any action
(or refrain from taking any action) with respect to or under any Loan Document, an Affiliated Lender that is not an Affiliated
Debt Fund shall be deemed to have voted its interest as a Lender without discretion in the same proportion as the allocation of
voting with respect to such matter by Lenders who are not such Affiliated Lenders; provided that, (I) to
the extent Lenders are being compensated by the Borrower for consenting to an amendment, modification, waiver or any other action,
each Affiliated Lender who has been deemed to have voted its Loans in accordance with this subsection 10.6(h)(iii) shall be entitled
to be compensated on the same basis as each consenting Lender as if it had voted all of its Loans in favor of the applicable amendment,
modification, waiver or other action); and (II) no amendment, modification, waiver, consent or other action with respect
to any Loan Document shall deprive such Affiliated Lender of its ratable share of any payments of Loans of any class to which
such Affiliated Lender is entitled under the Loan Documents without such Affiliated Lender providing its consent; provided,
further, that such Affiliated Lender shall have the right to approve any amendment, modification, waiver or consent
that (x) disproportionately and adversely affects such Affiliated Lender in its capacity as a Lender or affects such Affiliated
Lender differently in its capacity as a Lender than other Lenders or (y) is of the type described in subsections 10.1(a)(i)
through 10.1(a)(iv); and in furtherance of the foregoing, (x) the Affiliated Lender agrees to execute and deliver to the
Administrative Agent any instrument reasonably requested by the Administrative Agent to evidence the voting of its interest as
a Lender in accordance with the provisions of this subsection 10.6(h)(iii); provided that if the Affiliated Lender
fails to promptly execute such instrument such failure shall in no way prejudice any of the Administrative Agent’’s
rights under this subsection 10.6(h)(iii) and (y) the Administrative Agent is hereby appointed (such appointment being
coupled with an interest) by such Affiliated Lender as such Affiliated Lender’s attorney-in-fact, with full authority in
the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative
Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary
to carry out the provisions of this subsection 10.6(h)(iii).
(vii)
Each Affiliated Lender that is not an Affiliated Debt Fund, solely in its capacity as a Lender, hereby agrees, and each Affiliated
Lender Assignment and Acceptance agreement shall provide a confirmation that, if any of Holding, the Borrower or any Restricted
Subsidiary shall be subject to any voluntary or involuntary bankruptcy, reorganization, insolvency or liquidation proceeding (each,
a “Bankruptcy Proceeding”), (i) such Affiliated Lender shall not take any step or action in such Bankruptcy
Proceeding to object to, impede, or delay the exercise of any right or the taking of any action by the Administrative Agent (or
the taking of any action by a third party that is supported by the Administrative Agent) in relation to such Affiliated Lender’’s
claim with respect to its Term Loans (“Claim”) (including objecting to any debtor in possession financing,
use of cash collateral, grant of adequate protection, sale or disposition, compromise, or plan of reorganization) so long as such
Affiliated Lender in its capacity as a Lender is treated in connection with such exercise or action on the same or better terms
as the other Lenders and (ii) (with respect to any matter requiring the vote of Lenders during the pendency of a Bankruptcy
Proceeding (including voting on any plan of reorganization), the Term Loans held by such Affiliated Lender (and any Claim with
respect thereto) shall be deemed to be voted in accordance with subsection 10.6(h)(iii) above so long as such Affiliate Lender
in its capacity as a Lender is treated in connection with the exercise of such right or taking of such action on the same or better
terms as other Lenders. For the avoidance of doubt, the Lenders and each Affiliated Lender that is not an Affiliated Debt Fund
agree and acknowledge that the provisions set forth in this subsection 10.6(h)(iv) and the related provisions set forth in each
Affiliated Lender Assignment and Acceptance constitute a “subordination agreement” as such term is contemplated by,
and utilized in, Section 510(a) of the United States Bankruptcy Code, and, as such, it is their intention that this subsection
10.6(h)(iv) would be enforceable for all purposes in any case where Holding, the Borrower or any Restricted Subsidiary has filed
for protection under any law relating to bankruptcy, insolvency or reorganization or relief of debtors applicable to Holding,
the Borrower or such Restricted Subsidiary, as applicable. Each Affiliated Lender that is not an Affiliated Debt Fund hereby irrevocably
appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’’s
attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender
(solely in respect of Loans, Commitments and participations therein and not in respect of any other claim or status such Affiliated
Lender may otherwise have), from time to time in the Administrative Agent’’s
discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry
out the provisions of this subsection 10.6(h)(iv); and
(viii)
Each Lender making an assignment to, or taking an assignment from, an Affiliated Lender acknowledges and agrees that in connection
with such assignment, (1) such Affiliated Lender then may have, and later may come into possession of Excluded Information,
(2) such Lender has independently and, without reliance on the Affiliated Lender, Holding, the Borrower, any of its Subsidiaries,
the Administrative Agent or any of their respective Affiliates, has made its own analysis and determination to enter into such
assignment notwithstanding such Lender’s lack of knowledge of the Excluded Information and (3) none of Holding, the
Borrower, its Subsidiaries, the Administrative Agent, or any of their respective Affiliates shall have any liability to such Lender,
and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against Holding, the
Borrower, its Subsidiaries, the Administrative Agent, and their respective Affiliates, under applicable laws or otherwise, with
respect to the nondisclosure of the Excluded Information. Each Lender entering into such an assignment further acknowledges that
the Excluded Information may not be available to the Administrative Agent or the other Lenders.
(i)
Notwithstanding anything to the contrary in this Agreement, subsection 10.1 or the definitions of “Required Lenders”,
(x) with respect to any assignment or participation to or by an Affiliated Debt Fund, such assignment or participation
shall be made pursuant to an open market purchase and (y) for purposes of determining whether the Required Lenders have
(i) consented (or not consented) to any amendment, supplement, modification, waiver, consent or other action with respect
to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted on any matter
related to any Loan Document, or (iii) directed or required the Administrative Agent, Collateral Agent or any Lender to
undertake any action (or refrain from taking any action) with respect to or under any Loan Document, all Term Loans held by Affiliated
Debt Funds may not account for more than 50.0% of the Term Loans of consenting Lenders included in determining whether the Required
Lenders have consented to any action pursuant to subsection 10.1.
(j)
Notwithstanding the foregoing provisions of this subsection 10.6, nothing in this subsection 10.6 is intended to or should be
construed to limit the Borrower’s right to prepay the Loans as provided hereunder, including under subsection 3.4.
| 10.7 | Adjustments;
Set-off; Calculations; Computations. |
(a)
If any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part of its Term Loans
owing to it, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in subsection 8(f), or otherwise (except pursuant to subsection 2.2(b),
2.2(c), 2.2(d), 2.5, 2.6, 2.7, 2.8, 3.4, 3.9, 3.10, 3.11, 3.12, 3.13(d), 10.1(g), 10.1(h) or 10.6), in a greater proportion than
any such payment to or collateral received by any other Lender, if any, in respect of such other Lender’s Term Loans owing
to it, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders an interest (by participation,
assignment or otherwise) in such portion of each such other Lender’s Term Loans owing to it, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender
to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without
interest.
(b)
In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice
to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by applicable law, upon the occurrence
of an Event of Default under subsection 8(a) to set-off and appropriate and apply against any amount then due and payable under
subsection 8(a) by the Borrower any and all deposits (general or special, time or demand, provisional or final), in any currency,
and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account
of the Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not affect the validity of such set-off
and application.
(a)
If, for the purpose of obtaining or enforcing judgment against any Loan Party in any court in any jurisdiction, it becomes necessary
to convert into any other currency (such other currency being hereinafter in this subsection 10.8 referred to as the “Judgment
Currency”) an amount due under any Loan Document in any currency (the “Obligation Currency”) other
than the Judgment Currency, the conversion shall be made at the rate of exchange prevailing on the Business Day immediately preceding
the date of actual payment of the amount due, in the case of any proceeding in the courts of any other jurisdiction that will
give effect to such conversion being made on such date, or the date on which the judgment is given, in the case of any proceeding
in the courts of any other jurisdiction (the applicable date as of which such conversion is made pursuant to this subsection 10.8
being hereinafter in this subsection 10.8 referred to as the “Judgment Conversion Date”).
(b)
If, in the case of any proceeding in the court of any jurisdiction referred to in subsection 10.8(a), there is a change in the
rate of exchange prevailing between the Judgment Conversion Date and the date of actual receipt for value of the amount due, the
applicable Loan Party shall pay such additional amount (if any, but in any event not a lesser amount) as may be necessary to ensure
that the amount actually received in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment,
will produce the amount of the Obligation Currency which could have been purchased with the amount of the Judgment Currency stipulated
in the judgment or judicial order at the rate of exchange prevailing on the Judgment Conversion Date. Any amount due from any
Loan Party under this subsection 10.8(b) shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of any of the Loan Documents.
(c)
The term “rate of exchange” in this subsection 10.8 means the rate of exchange at which the Administrative Agent,
on the relevant date at or about 12:00 Noon (New York time), would be prepared to sell, in accordance with its normal course foreign
currency exchange practices, the Obligation Currency against the Judgment Currency.
10.9
Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of such counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties shall be delivered to the Borrower and the Administrative
Agent.
10.10
Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
10.11
Integration. This Agreement and the other Loan Documents represent the entire agreement of each of the Loan Parties party
hereto, the Agents and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations
or warranties by any of the Loan Parties party hereto, the Agents or any Lender relative to the subject matter hereof not expressly
set forth or referred to herein or in the other Loan Documents.
10.12
GOVERNING LAW. THIS AGREEMENT AND ANY NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY
NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY
STATUTE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
10.13
Submission to Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:
(a)
submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents
to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the general jurisdiction of
the Supreme Court of the State of New York for the County of New York (the “New York Supreme Court”), and the
United States District Court for the Southern District of New York (the “Federal District Court,” and together
with the New York Supreme Court, the ““New
York Courts”“),
and appellate courts from either of them;
(b)
consents that any such action or proceeding may be brought in such courts and waives, to the maximum extent not prohibited by
law, any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient forum and agrees not to plead or claim the same;
(c)
agrees that the New York Courts and appellate courts from either of them shall be the exclusive forum for any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it is a party, and that it shall not initiate (or
collusively assist in the initiation of) any such action or proceeding in any court other than the New York Courts and appellate
courts from either of them; provided that
(i)
if all such New York Courts decline jurisdiction over any Person, or decline (or in the case of the Federal District Court, lack)
jurisdiction over any subject matter of such action or proceeding, a legal action or proceeding may be brought with respect thereto
in another court having such jurisdiction;
(ii)
in the event that a legal action or proceeding is brought against any party hereto or involving any of its property or assets
in another court (without any collusive assistance by such party or any of its Subsidiaries or Affiliates), such party shall be
entitled to assert any claim or defense (including any claim or defense that this subsection 10.13(c) would otherwise require
to be asserted in a legal action or proceeding in a New York Court) in any such action or proceeding;
(iii)
the Agents and the Lenders may bring any legal action or proceeding against any Loan Party in any jurisdiction in connection with
the exercise of any rights under any Security Documents, provided that any Loan Party shall be entitled to assert
any claim or defense (including any claim or defense that this subsection 10.13(c) would otherwise require to be asserted in a
legal action or proceeding in a New York Court) in any such action or proceeding; and
(iv)
any party hereto may bring any legal action or proceeding in any jurisdiction for the recognition and enforcement of any judgment;
(d)
agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the Borrower, the applicable Lender or the Administrative
Agent, as the case may be, at the address specified in subsection 10.2 or at such other address of which the Administrative Agent,
any such Lender and the Borrower shall have been notified pursuant thereto;
(e)
agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or (subject
to subsection 10.13(c)) shall limit the right to sue in any other jurisdiction; and
(f)
waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding
referred to in this subsection 10.13 any consequential or punitive damages.
| 10.14 | Acknowledgements.
The Borrower hereby acknowledges that: |
(a)
it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents;
(b)
neither the Administrative Agent nor any Agent, Lead Arranger or Lender has any fiduciary relationship with or duty to the Borrower
arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Administrative
Agent and Lenders, on the one hand, and the Borrower, on the other hand, in connection herewith or therewith is solely that of
creditor and debtor; and
(c)
no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated
hereby and thereby among the Lenders or among the Borrower and the Lenders.
10.15
WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
(a)
Each Agent and each Lender agrees to keep confidential any information (x) provided to it by or on behalf of the Borrower
or any of its Subsidiaries pursuant to or in connection with the Loan Documents or (y) obtained by such Lender based on
a review of the books and records of the Borrower or any of its Subsidiaries; provided that nothing herein shall
prevent any Lender from disclosing any such information (i) to any Agent, any Lead Arranger or any other Lender, (ii)
to any Transferee, or prospective Transferee or any creditor or any actual or prospective counterparty (or its advisors) to any
swap or derivative transaction relating to the Borrower and its obligations that agrees to comply with the provisions of this
subsection (or with other confidentiality provisions satisfactory to and consented to in writing by the Borrower) pursuant to
a written instrument (or electronically recorded agreement from any Person listed above in this clause (ii), which Person has
been approved by the Borrower (such approval not be unreasonably withheld), in respect to any electronic information (whether
posted or otherwise distributed on IntraLinks or any other electronic distribution system)) for the benefit of the Borrower (it
being understood that each relevant Lender shall be solely responsible for obtaining such instrument (or such electronically recorded
agreement)), (iii) to its affiliates and the employees, officers, directors, agents, attorneys, accountants and other professional
advisors of it and its affiliates, provided that such Lender shall inform each such Person of the agreement under
this subsection 10.16 and take reasonable actions to cause compliance by any such Person referred to in this clause (iii) with
this Agreement (including, where appropriate, to cause any such Person to acknowledge its agreement to be bound by the agreement
under this subsection 10.16), (iv) upon the request or demand of any Governmental Authority having jurisdiction over such
Lender or its affiliates or to the extent required in response to any order of any court or other Governmental Authority or as
shall otherwise be required pursuant to any Requirement of Law, provided that such Lender shall, unless prohibited
by any Requirement of Law, notify the Borrower of any disclosure pursuant to this clause (iv) as far in advance as is reasonably
practicable under such circumstances, (v) which has been publicly disclosed other than in breach of this Agreement, (vi)
in connection with the exercise of any remedy hereunder, under any Loan Document or under any Interest Rate Agreement, (vii)
in connection with periodic regulatory examinations and reviews conducted by the National Association of Insurance Commissioners
or any Governmental Authority having jurisdiction over such Lender or its affiliates (to the extent applicable), (viii)
in connection with any litigation to which such Lender (or, with respect to any Interest Rate Protection Agreement, any affiliate
of any Lender party thereto) may be a party, subject to the proviso in clause (iv), and (ix) if, prior to such information
having been so provided or obtained, such information was already in an Agent’s or a Lender’s possession on a nonconfidential
basis without a duty of confidentiality to the Borrower (or any of its Affiliates) being violated. Notwithstanding any other provision
of this Agreement, any other Loan Document or any Assignment and Acceptance, the provisions of this subsection 10.16 shall survive
with respect to each Agent and Lender until the second anniversary of such Agent or Lender ceasing to be an Agent of a Lender,
respectively.
(b)
Each Lender acknowledges that any such information referred to in subsection 10.16(a), and any information (including requests
for waivers and amendments) furnished by the Borrower or the Administrative Agent pursuant to or in connection with this Agreement
and the other Loan Documents, may include material nonpublic information concerning the Borrower, the other Loan Parties and their
respective Affiliates or their respective securities. Each Lender represents and confirms that such Lender has developed compliance
procedures regarding the use of material nonpublic information; that such Lender will handle such material nonpublic information
in accordance with those procedures and applicable law, including United States federal and state securities laws; and that such
Lender has identified to the Administrative Agent a credit contact who may receive information that may contain material nonpublic
information in accordance with its compliance procedures and applicable law.
10.17
Incremental Indebtedness; Additional Indebtedness. In connection with the incurrence by any Loan Party or any Subsidiary
thereof of any Incremental Indebtedness, Specified Refinancing Indebtedness or Additional Indebtedness, each of the Administrative
Agent and the Collateral Agent agrees to execute and deliver any Replacement Intercreditor Agreement or Intercreditor Agreement
Supplement and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications
to, any Security Document, and to make or consent to any filings or take any other actions in connection therewith, as may be
reasonably deemed by the Borrower to be necessary or reasonably desirable for any Lien on the assets of any Loan Party permitted
to secure such Additional Indebtedness, Specified Refinancing Indebtedness or Incremental Indebtedness to become a valid, perfected
lien (with such priority as may be designated by the relevant Loan Party or Subsidiary, to the extent such priority is permitted
by the Loan Documents) pursuant to the Security Document being so amended, amended and restated, restated, waived, supplemented
or otherwise modified or otherwise.
10.18
USA Patriot Act Notice. Each Lender hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. Law 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify,
and record information that identifies the Borrower and each Subsidiary Guarantor, which information includes the name of the
Borrower and each Subsidiary Guarantor and other information that will allow such Lender to identify the Borrower and each Subsidiary
Guarantor in accordance with the Patriot Act, and the Borrower agrees to provide such information from time to time to any Lender.
10.19
Special Provisions Regarding Pledges of Capital Stock in, and Promissory Notes Owed by, Persons Not Organized in the United
States. To the extent any Security Document requires or provides for the pledge of promissory notes issued by, or Capital
Stock in, any Person organized under the laws of a jurisdiction outside the United States, it is acknowledged that no actions
have been or will be required to be taken to perfect, under local law of the jurisdiction of the Person who issued the respective
promissory notes or whose Capital Stock is pledged, under the Security Documents.
10.20
Electronic Execution of Assignments and Certain Other Documents. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Acceptance or Affiliated Lender Assignment and Acceptance
or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures
or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as an
originally executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided
for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
10.21
Miscellaneous. This Agreement is not intended to be, and is not, a “Senior Interim Loan Agreement”, a “Senior
Interim Loan Facility”, a “Senior Subordinated Interim Loan Agreement” or a “Senior Subordinated Interim
Loan Facility” under or as defined in the ABL Credit Agreement. Each of the other Loan Documents is not intended to be,
and is not, a “Senior Interim Loan Agreement”, a “Senior Interim Loan Facility”, a “Senior Subordinated
Interim Loan Agreement” or a “Senior Subordinated Interim Loan Facility” under or as defined in the ABL Credit
Agreement.
10.22
Effect of Amendment and Restatement on Original Credit Agreement. On the Restatement Effective Date, the Original Term
Loan Credit Agreement shall be amended and restated in its entirety by this Agreement, and the Original Term Loan Credit Agreement
shall thereafter be of no further force and effect and shall be deemed replaced and superseded in all respects by this Agreement.
The parties hereto acknowledge and agree that (1) this Agreement and the other Loan Documents, whether executed and delivered
in connection herewith or otherwise, do not constitute a novation, satisfaction, payment, re-borrowing or termination of the “Obligations”
under the Original Term Loan Credit Agreement or the other Loan Documents as in effect prior to the Restatement Effective Date
and which remain outstanding as of the Restatement Effective Date, nor do they operate as a waiver of any right, power or remedy
of any Lender under any Loan Document, (2) the “Obligations” under the Original Term Loan Credit Agreement and the
other Loan Documents are in all respects continuing (as amended and restated hereby and which are in all respects hereafter subject
to the terms herein) and (3) the Liens and security interests as granted under the applicable Loan Documents securing payment
of the Obligations (as defined in the Guarantee and Collateral Agreement) are in all respects continuing, unaltered and in full
force, and effect and with the same priority to secure such Obligations, whether heretofore or hereafter incurred, and are reaffirmed
hereby.
10.23
Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan
Document, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under any
Loan Document, to the extent such liability is unsecured (all such liabilities, other than any Excluded Liability, the “Covered
Liabilities”), may be subject to Write-down and Conversion Powers and agrees and consents to, and acknowledges and agrees
to be bound by:
(a)
the application of Write-Down and Conversion Powers to any Covered Liability arising under any Loan Document which may be payable
to it by any Lender that is an EEA Financial Institution; and
(b)
the effects of any Bail-in Action on any such Covered Liability, including, if applicable:
(i)
a reduction in full or in part or cancellation of any such Covered Liability;
(ii)
a conversion of all, or a portion of, such Covered Liability into shares or other instruments of ownership in such EEA 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 Covered Liability
under any Loan Document; or
(iii)
the variation of the terms of such Covered Liability in connection with the exercise of Write-Down and Conversion Powers.
Notwithstanding
anything to the contrary herein, nothing contained in this subsection 10.23 shall modify or otherwise alter the rights or obligations
with respect to any liability that is not a Covered Liability.
10.24
Acknowledgment Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee
or otherwise, of Hedging Obligations or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”
and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution
power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall
Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution
Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding
that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or
of the United States or any other state of the United States):
(a)
In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any
interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported
QFC or such QFC Credit Support ) from such Covered Party will be effective to the same extent as the transfer would be effective
under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and
rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party
or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights
under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against
such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S.
Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state
of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties
with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or
any QFC Credit Support.
(b)
As used in this Section 10.24, the following terms shall have the following meanings:
“BHC
Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance
with, 12 U.S.C. 1841(k)) of such party.
“Covered
Entity” means any of the following:
(i)
a “covered entity” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 252.82(b);
(ii)
a “covered bank” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 47.3(b); or
(iii)
a “covered FSI” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 382.2(b).
“Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§
252.81, 47.2 or 382.1, as applicable.
“QFC”
has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with,
12 U.S.C. 5390(c)(8)(D).
[Remainder
of Page Intentionally Left Blank – Signature Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized
officers, as of the date first written above.
AGENT: | CITICORP
NORTH AMERICA, INC.
as Administrative Agent and Collateral Agent |
BORROWER: |
US
FOODS, INC. |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
|
|
|
AGENT: |
CITICORP
NORTH AMERICA, INC.
as Administrative Agent and Collateral Agent |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
v3.23.2
Cover
|
Aug. 22, 2023 |
Cover [Abstract] |
|
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Aug. 22, 2023
|
Entity File Number |
001-37786
|
Entity Registrant Name |
US Foods Holding Corp.
|
Entity Central Index Key |
0001665918
|
Entity Tax Identification Number |
26-0347906
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
9399 W. Higgins Road
|
Entity Address, Address Line Two |
Suite 100
|
Entity Address, City or Town |
Rosemont
|
Entity Address, State or Province |
IL
|
Entity Address, Postal Zip Code |
60018
|
City Area Code |
(847)
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Local Phone Number |
720-8000
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Written Communications |
false
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Soliciting Material |
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Pre-commencement Tender Offer |
false
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Pre-commencement Issuer Tender Offer |
false
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Title of 12(b) Security |
Common Stock, Par Value $0.01
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USFD
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Security Exchange Name |
NYSE
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Entity Emerging Growth Company |
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Entity Information, Former Legal or Registered Name |
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