EX-10.20 3 enersys-2022refixfourthame.htm EX-10.20 Document
EXECUTION VERSION


FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Agreement”), dated as of March 22, 2023 (the “Fourth Amendment Effective Date”), is among, EnerSys, a Delaware corporation (the “Company”), the Designated Borrowers party hereto, the Guarantors party hereto, the Lenders party hereto, and Bank of America, N.A., as Administrative Agent and the L/C Issuer. All capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Existing Credit Agreement (as defined below) or the Amended Credit Agreement (as defined below), as applicable.
W I T N E S S E T H
WHEREAS, pursuant to that certain Credit Agreement, dated as of August 4, 2017 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time prior to the date hereof, the “Existing Credit Agreement”), among the Borrowers from time to time party thereto, the Guarantors from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and the L/C Issuer, the Lenders and the L/C Issuer have agreed to provide the Borrowers with the credit facilities provided for therein;
WHEREAS, the Borrowers have requested that the Lenders and the L/C Issuer amend the Existing Credit Agreement as set forth herein; and
WHEREAS, the Lenders and the L/C Issuer party hereto have agreed to amend the Existing Credit Agreement as set forth herein, subject to the terms and conditions specified in this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the parties hereto hereby agrees as follows:
1.Amendments to Existing Credit Agreement.
(a)The Existing Credit Agreement is amended in its entirety to read as set forth in Annex A attached hereto to delete the stricken text (indicated textually in the same manner as the following example: stricken text or stricken text) and insert the added text (indicated textually in the same manner as the following example: added text or added text) as shown therein (the Existing Credit Agreement, as so amended, the “Amended Credit Agreement”).
(b)Exhibit A-1 to the Existing Credit Agreement is hereby amended in its entirety to read in the form of Exhibit A-1 attached hereto.
(c)Except as set forth in Section 1(b) herein, no schedules or exhibits to the Existing Credit Agreement are modified or otherwise affected hereby.
(d)The parties hereto agree that, on and as of the Fourth Amendment Effective Date after giving effect to this Agreement, all Obligations outstanding on and as of the Fourth Amendment Effective Date shall in all respects be continuing and shall be deemed to be Obligations under the Amended Credit Agreement. Neither this Agreement nor the Amended Credit Agreement is a novation of the Existing Credit Agreement, or shall by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Administrative Agent, any Lender, or any other holder of the Obligations under the Existing Credit Agreement or any other Loan Document, and except as set forth herein, shall not alter, modify, amend, or in any way affect any of the terms, conditions, obligations, covenants, or agreements contained in the Existing Credit Agreement or any other Loan Document.
(e)Notwithstanding anything in this Agreement or the Amended Credit Agreement to the contrary, in lieu of any Borrower delivering a notice or taking any other action prescribed thereby, to the extent any Loan bearing interest at the LIBOR Rate is outstanding immediately
CHAR1\1981891v5



prior to the Fourth Amendment Effective Date, such Loan shall continue to bear interest at the LIBOR Rate, until the earlier of (x) the repayment of such Loan or (y) the end of the current Interest Period or payment period applicable to such Loan, in accordance with the terms of the Existing Credit Agreement.
2.Conditions Precedent to Effectiveness. This Agreement shall be effective on the Fourth Amendment Effective Date upon the satisfaction of the following conditions precedent:
(a)the Administrative Agent shall have received counterparts of this Agreement duly executed by the Company, the Designated Borrowers, the Guarantors, the Required Lenders, all Lenders (other than the Term A-3 Lenders), the Administrative Agent and the L/C Issuer; and
(b)the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, shall have received all fees due and payable in connection with this Agreement that are required to be paid on or before the Fourth Amendment Effective Date and, to the extent invoiced at least two (2) Business Days prior to the Fourth Amendment Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrowers hereunder and under the Amended Credit Agreement.
Without limiting the generality of Section 9.03(c) of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 2, each of the Lenders and the L/C Issuer that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender or the L/C Issuer unless the Administrative Agent shall have received notice from such Lender or the L/C Issuer prior to the proposed Fourth Amendment Effective Date specifying its objection thereto.
3.Miscellaneous.
(a)The Loan Documents and the obligations of the Credit Parties thereunder are hereby ratified and confirmed and shall remain in full force and effect according to their terms. This Agreement is a Loan Document.
(b)Each Credit Party (i) acknowledges and consents to all of the terms and conditions of this Agreement, (ii) affirms all of its obligations under the Loan Documents, (iii) this Agreement and all documents executed in connection herewith do not operate to reduce or discharge its obligations under the Loan Documents, (iv) agrees that the Collateral Documents shall continue to be in full force and effect and are not impaired or adversely affected by this Agreement in any manner whatsoever, (v) confirms its grant of security interests pursuant to the Collateral Documents to which it is a party as Collateral for the Obligations and (vi) acknowledges that all Liens granted (or purported to be granted) pursuant to the Collateral Documents shall remain and continue in full force and effect in respect of, and to secure, the Obligations.
(c)Each Credit Party hereby represents and warrants as follows:
    (i)    such Credit Party has the requisite power and authority to execute, deliver and carry out the terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performance of this Agreement;
(ii)    such Credit Party has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid and binding obligation of such Credit Party enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law);
2
CHAR1\1981891v5


    (iii)    neither the execution, delivery or performance by such Credit Party of this Agreement, nor compliance by such Credit Party with the terms and provisions thereof, nor the consummation of the transactions contemplated herein, (A) will contravene any material provision of any material applicable Law, (B) will violate or result in a default under any material indenture, agreement or instrument to which the Company or any of its Restricted Subsidiaries is a party or by which it or any of its property or assets are bound or to which it may be subject, (C) will result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of the Company or any of its Restricted Subsidiaries (other than pursuant to the Collateral Documents) or (D) will violate any provision of the certificate of incorporation, by-laws, certificate of limited liability company, limited liability company agreement or equivalent organizational document, as the case may be, of such Credit Party; and
    (iv)    except as may have been obtained or made on or prior to the Fourth Amendment Effective Date (and which remain in full force and effect on the Fourth Amendment Effective Date), no order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by, any Governmental Authority is required to authorize or is required in connection with (A) the execution, delivery and performance of this Agreement or (B) the legality, validity, binding effect or enforceability of this Agreement.
(d)Subject to Section 10.17 of the Amended Credit Agreement, this Agreement may be in the form of an Electronic Record and may be executed using Electronic Signatures (including facsimile and .pdf) and shall be considered an original, and shall have the same legal effect, validity and enforceability as a paper record. This Agreement 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 Agreement. The authorization under this Section 3(d) may include use or acceptance by the Administrative Agent, the L/C Issuer and each Lender of a manually signed paper copy of this Agreement which has been converted into electronic form (such as scanned into .pdf format), or an electronically signed copy of this Agreement converted into another format, for transmission, delivery and/or retention.
(e)If any provision of this Agreement is held to be illegal, invalid or unenforceable, (i) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (ii) the parties shall endeavor in good faith to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
(f)THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF LAWS OF ANY OTHER JURISDICTION.
(g)The terms of Sections 10.14 and 10.15 of the Existing Credit Agreement with respect to submission to jurisdiction, waiver of venue, and waiver of jury trial are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
[signature pages follow]

3
CHAR1\1981891v5

    

IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by a duly authorized officer as of the date first written above.
COMPANY:    ENERSYS,
a Delaware corporation
By:    /s/ Thomas L. O’Neill                
Name: Thomas L. O’Neill
Title: Vice President, Treasurer and Assistant Secretary
DESIGNATED BORROWER:    ALPHA TECHNOLOGIES LTD.,
a British Columbia company
By:    /s/ Thomas L. O’Neill                
Name: Thomas L. O’Neill
Title: Treasurer
GUARANTORS:    ENERSYS ADVANCED SYSTEMS INC.,
a Delaware corporation
By:    /s/ Thomas L. O’Neill                
Name: Thomas L. O’Neill
Title: Treasurer
ENERSYS CAPITAL INC.,
a Delaware corporation
By:    /s/ Thomas L. O’Neill                
Name: Thomas L. O’Neill
Title: Vice President and Treasurer
ENERSYS DELAWARE INC.,
a Delaware corporation
By:    /s/ Thomas L. O’Neill                
Name: Thomas L. O’Neill
Title: Treasurer and Assistant Secretary
ENERSYS ENERGY PRODUCTS INC.,
a Delaware corporation
By:    /s/ Thomas L. O’Neill                
Name: Thomas L. O’Neill
Title: Treasurer

[Signature Page to Fourth Amendment]


    

PURCELL SYSTEMS, INC.,
a Delaware corporation
By:    /s/ Thomas L. O’Neill                
Name: Thomas L. O’Neill
Title: Treasurer
ESFINCO, LLC,
a Delaware limited liability company
By: EnerSys Delaware Inc., its sole member
By:    /s/ Thomas L. O’Neill                
Name: Thomas L. O’Neill
Title: Treasurer and Assistant Secretary
HAWKER POWERSOURCE, INC.,
a Delaware corporation
By:    /s/ Thomas L. O’Neill                
Name: Thomas L. O’Neill
Title: Treasurer and Assistant Secretary
ALPHA TECHNOLOGIES SERVICES, INC.,
a Nevada corporation
By:    /s/ Thomas L. O’Neill                
Name: Thomas L. O’Neill
Title: Director and Authorized Signatory

[Signature Page to Fourth Amendment]


    

ADMINISTRATIVE AGENT:            BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/    Ronaldo Naval                
Name: Ronaldo Naval
Title: Vice President
BANK OF AMERICA, N.A., acting through its Canada Branch, as Canadian Administrative Agent
By: /s/    Medina Sales de Andrade        
Name: Medina Sales de Andrade
Title: Vice President



[Signature Page to Fourth Amendment]


    

LENDERS:                    BANK OF AMERICA, N.A.,
as a Lender and the L/C Issuer
By: /s/    Oscar D. Cortez        
Name: Oscar D. Cortez
Title: Director



[Signature Page to Fourth Amendment]


    

TD BANK, N.A.,
as a Lender

By: /s/ Bernadette Collins    
Name:    Bernadette Collins
Title:    Senior Vice President



[Signature Page to Fourth Amendment]


    

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender

By: /s/ Barbara K. Angel    
Name:    Barbara K. Angel
Title:    Director



[Signature Page to Fourth Amendment]


    

JPMORGAN CHASE BANK, N.A.,
as a Lender

By: /s/ Anthony Galea    
Name:    Anthony Galea
Title:    Executive Director

JPMORGAN CHASE BANK, N.A., TORONTO BRANCH
as a Lender

By: /s/ Jeff Coleman    
Name:    Jeff Coleman
Title:    Executive Director



[Signature Page to Fourth Amendment]


    

PNC BANK, NATIONAL ASSOCIATION,
as a Lender

By: /s/ Domenic D’Ginto    
Name:    Domenic D’Ginto
Title:    Managing Director

PNC BANK, Canada Branch,
as a Lender

By: /s/    
Name:    Martin Peichl
Title:    Senior Vice President



[Signature Page to Fourth Amendment]


    

TRUIST BANK,
as a Lender

By: /s/ Jason Hembree    
Name:    Jason Hembree
Title:    Vice President



[Signature Page to Fourth Amendment]


    

CITIZENS BANK, N.A.,
as a Lender

By: /s/ Pamela Hansen    
Name:    Pamela Hansen
Title:    Senior Vice President



[Signature Page to Fourth Amendment]


    

THE HUNTINGTON NATIONAL BANK,
as a Lender

By: /s/ Phil Andresen    
Name:    Phil Andresen
Title:    Vice President



[Signature Page to Fourth Amendment]


    

MUFG BANK, LTD.,
as a Lender

By: /s/ Richard Ferrara    
Name:    Richard Ferrara
Title:    Vice President

MUFG BANK, LTD., CANADA BRANCH,
as a Lender

By: /s/ Samin Atique    
Name:    Samin Atique
Title:    Managing Director



[Signature Page to Fourth Amendment]


    

SANTANDER BANK, N.A.,
as a Lender

By: /s/ Puiki Lok    
Name:    Puiki Lok
Title:    Senior Vice President



[Signature Page to Fourth Amendment]


    

U.S. BANK NATIONAL ASSOCIATION,
as a Lender

By: /s/ Kenneth R. Fieler    
Name:    Kenneth R. Fieler
Title:    Vice President



[Signature Page to Fourth Amendment]


    

FULTON BANK, N.A.,
as a Lender

By: /s/ Michael J. Lessig    
Name:    Michael J. Lessig
Title:    Senior Vice President



[Signature Page to Fourth Amendment]


    

DZ BANK AG,
as a Lender

By: /s/ Oliver Hildenbrand    
Name:    Oliver Hildenbrand
Title:    Director

By: /s/ Alexander Dickhoff    
Name:    Alexander Dickhoff
Title:    Vice President



[Signature Page to Fourth Amendment]


    

FIFTH THIRD BANK, NATIONAL ASSOCIATION,
as a Lender

By: /s/ Patrick Flaherty    
Name:    Patrick Flaherty
Title:    Executive Director



[Signature Page to Fourth Amendment]


    

FIRST NATIONAL BANK OF PENNSYLVANIA,
as a Lender

By: /s/ Larry Bardo    
Name:    Larry Bardo
Title:    Senior Vice President



[Signature Page to Fourth Amendment]


    

HSBC BANK USA, NATIONAL ASSOCIATION,
as a Lender

By: /s/ Kyle O’Reilly    
Name:    Kyle O’Reilly
Title:    SVP #23203



[Signature Page to Fourth Amendment]


    

SVENSKA HANDELSBANKEN AB (PUBL), NEW YORK BRANCH,
as a Lender

By: /s/ Johan Sander    
Name:    Johan Sander
Title:    Vice President

By: /s/ Tamara Hunter    
Name:    Tamara Hunter
Title:    VP



[Signature Page to Fourth Amendment]


    

Annex A
Amended Credit Agreement
[see attached]
CHAR1\1981891v5


Annex A

Published CUSIP Numbers:
Deal: 29275VAG3
Revolver A: 29275VAH1
Revolver B: 29275VAJ7
Initial Term Loan: 29275VAK4
Initial Term A-2 Loan: 29275VAM0
Term A-3 Loan: 29275VAN8
CREDIT AGREEMENT
Dated as of August 4, 2017
among
    ENERSYS,    
The Other Borrowers Party Hereto,
The Guarantors Party Hereto,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer
and
The Other Lenders Party Hereto
TD BANK, N.A.
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agents

JPMORGAN CHASE BANK, N.A.,
PNC BANK, NATIONAL ASSOCIATION
and
TRUIST BANK,
as Co-Documentation Agents

CITIZENS BANK, N.A.,
THE HUNTINGTON NATIONAL BANK,
MUFG BANK, LTD.
and
U.S. BANK NATIONAL ASSOCIATION,
as Co-Managers



Arranged by:
BOFA SECURITIES, INC.,
TD SECURITIES (USA) LLC
and
WELLS FARGO SECURITIES, LLC,
as Joint Lead Arrangers and Joint Bookrunners

CHAR1\1981890v5


TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS    1
1.01    Defined Terms    1
1.02    Other Interpretive Provisions    50
1.03    Accounting Terms    5251
1.04    Rounding    5352
1.05    Exchange Rates; Currency Equivalents; Rates    5352
1.06    Additional Alternative Currencies    5453
1.07    Change of Currency    5554
1.08    Times of Day    55
1.09    Letter of Credit Amounts    55
1.10    Certain Determinations    5655
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS    56
2.01    Loans    56
2.02    Borrowings, Conversions and Continuations    58
2.03    Letters of Credit    60
2.04    Swing Line Loans    69
2.05    Prepayments    7271
2.06    Termination or Reduction of Commitments    7574
2.07    Repayment of Loans    76
2.08    Interest    78
2.09    Fees    8079
2.10    Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate    80
2.11    Evidence of Debt    81
2.12    Payments Generally; Administrative Agent’s Clawback    8281
2.13    Sharing of Payments by Lenders    8483
2.14    Cash Collateral    84
2.15    Defaulting Lenders    85
2.16    Designated Borrowers    8887
2.17    Refinancing Facilities    89
2.18    Incremental Facilities    9190
2.19    Amend and Extend Transactions    95
2.20    ESG Adjustments    9796
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY    9897
3.01    Taxes    9897
3.02    Illegality    103102
3.03    Inability to Determine Rates    104103
3.04    Increased Costs    109
3.05    Compensation for Losses    111110
3.06    Mitigation Obligations; Replacement of Lenders    111
3.07    Survival    112111
ARTICLE IV CONDITIONS PRECEDENT    112111
4.01    Conditions to Effectiveness and Initial Credit Extension    112
4.02    Conditions to all Credit Extensions    114
ARTICLE V REPRESENTATIONS AND WARRANTIES    115114
5.01    Company Status    115114
5.02    Power and Authority    115
5.03    No Violation    115
5.04    Litigation    115
5.05    Use of Proceeds; Margin Regulations    116115
5.06    Governmental Approvals    116
5.07    Investment Company Act    116
5.08    True and Complete Disclosure    116
CHAR1\1981890v5


5.09    Financial Condition; Financial Statements    117116
5.10    Security Interests    117
5.11    Compliance with ERISA    118117
5.12    Subsidiaries    119118
5.13    Intellectual Property    119118
5.14    Compliance with Statutes, Agreements, Etc    119118
5.15    Environmental Matters    119
5.16    Properties    120119
5.17    Labor Relations    120119
5.18    Tax Returns and Payments    120119
5.19    Insurance    120
5.20    Sanctions    120
5.21    Anti-Corruption Laws    120
5.22    Affected Financial Institution Status    121120
5.23    Covered Entity Status    121120
5.24    Beneficial Ownership Certification    121120
ARTICLE VI AFFIRMATIVE COVENANTS    121120
6.01    Information Covenants    121120
6.02    Books, Records and Inspections    123
6.03    Insurance    123
6.04    Payment of Taxes    124123
6.05    Preservation of Existence    124
6.06    Compliance with Statutes, Etc    124
6.07    Compliance with Environmental Laws    124
6.08    ERISA    125124
6.09    Good Repair    125
6.10    Additional Security; Further Assurances    126125
6.11    Use of Proceeds    127
6.12    Performance of Obligations    127
6.13    Anti-Corruption Laws; Sanctions    128127
6.14    Unrestricted Subsidiaries    128127
ARTICLE VII NEGATIVE COVENANTS    128
7.01    Changes in Business; Fiscal Year    129128
7.02    Consolidation; Merger; Sale or Purchase of Assets, Etc    129128
7.03    Liens    132
7.04    Indebtedness    135
7.05    Advances; Investments; Loans    140139
7.06    Dividends    143
7.07    Transactions with Affiliates    146145
7.08    Consolidated Interest Coverage Ratio    146
7.09    Consolidated Total Net Leverage Ratio    147146
7.10    Limitation on Voluntary Payments and Modifications of Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements; Issuances of Capital Stock, Etc    147146
7.11    Limitations on Certain Restrictions on Subsidiaries    148147
7.12    Sanctions    149148
7.13    Anti-Corruption Laws    149
7.14    Canadian Defined Benefit Pension Plan    149
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES    149
8.01    Events of Default    149
8.02    Application of Funds    152151
ARTICLE IX ADMINISTRATIVE AGENT    153152
9.01    Appointment and Authority    153152
9.02    Rights as a Lender    153
9.03    Exculpatory Provisions    153
9.04    Reliance by Administrative Agent    155154
CHAR1\1981890v5


9.05    Delegation of Duties    155
9.06    Resignation of Administrative Agent    155
9.07    Non-Reliance on Administrative Agent and Other Lenders    157156
9.08    No Other Duties, Etc    157
9.09    Administrative Agent May File Proofs of Claim    158157
9.10    Collateral and Guaranty Matters    159158
9.11    Secured Swap Agreements and Secured Cash Management Agreements    159
9.12    Certain ERISA Matters    160159
9.13    Recovery of Erroneous Payments    161160
ARTICLE X MISCELLANEOUS    161
10.01    Amendments, Etc    161
10.02    Notices; Effectiveness; Electronic Communication    163
10.03    No Waiver; Cumulative Remedies; Enforcement    165
10.04    Expenses; Indemnity; Damage Waiver    166
10.05    Payments Set Aside    168
10.06    Successors and Assigns    168
10.07    Treatment of Certain Information; Confidentiality    174
10.08    Right of Setoff    175
10.09    Interest Rate Limitation    175
10.10    Integration; Effectiveness    176175
10.11    Survival of Representations and Warranties    176
10.12    Severability    176
10.13    Replacement of Lenders    176
10.14    Governing Law; Jurisdiction; Etc    177
10.15    Waiver of Jury Trial    179178
10.16    No Advisory or Fiduciary Responsibility    179
10.17    Electronic Execution    179
10.18    USA PATRIOT Act and Canadian AML Acts    181180
10.19    Judgment Currency    181
10.20    Acknowledgement and Consent to Bail-In of Affected Financial Institutions    181
10.21    Acknowledgement Regarding Any Supported QFCs    182181
10.22    Appointment of Company    182
ARTICLE XI GUARANTY    183182
11.01    The Guaranty    183182
11.02    Obligations Unconditional    183
11.03    Reinstatement    184
11.04    Certain Additional Waivers    184
11.05    Remedies    184
11.06    Rights of Contribution    184
11.07    Guarantee of Payment; Continuing Guarantee    185
11.08    Keepwell    185


CHAR1\1981890v5


SCHEDULES
1.01    Existing Letters of Credit
2.01    Commitments and Applicable Percentages; L/C Commitment
5.12    Subsidiaries
5.19    Insurance
7.03    Liens Existing on the Second Amendment Effective Date
7.04     Indebtedness Existing on the Second Amendment Effective Date
7.05    Investments Existing on the Second Amendment Effective Date
10.02    Administrative Agent’s Office; Certain Addresses for Notices
Article IEXHIBITS
Form of
A-1    Loan Notice
A-2    Swing Line Loan Notice
B-1    Revolving Note (Domestic)
B-2    Revolving Note (Foreign)
B-3    Initial Term Note
B-4    Incremental Term Note
B-5    Swing Line Note
B-6    Initial Term A-2 Note
B-7    Term A-3 Note
C    Compliance Certificate
D    Assignment and Assumption
E    Guaranty Supplement
F    Borrower Request and Assumption Agreement
G    Borrower Notice
H    U.S. Tax Compliance Certificates
I    Secured Party Designation Notice
J    Incremental Term Loan Lender Joinder Agreement
K    Solvency Certificate
L    Shareholder Subordinated Note

CHAR1\1981890v5



CREDIT AGREEMENT
Article IIThis CREDIT AGREEMENT (“Agreement”) is entered into as of August 4, 2017, among ENERSYS, a Delaware corporation (the “Company”), the other Borrowers from time to time party hereto, the Guarantors party hereto, each Lender from time to time party hereto, and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
Article IIIThe Company has requested that the Lenders provide credit facilities for the purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set forth herein.
Article IVIn consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I    
DEFINITIONS AND ACCOUNTING TERMS
1.01    Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
2023 Unsecured Notes” means the 5.00% senior notes due 2023, issued pursuant to the First Supplemental Indenture, dated as of April 23, 2015, supplementing that certain Indenture, dated as of April 23, 2015, among the Company, the guarantors named therein and U.S. Bank Trust Company, National Association (as successor to MUFG Union Bank, N.A.), as trustee.
Acquisition” means any transaction, or any series of related transactions, consummated on or after the Closing Date, by which any Person (i) acquires any going business or all or substantially all of the assets of any firm, corporation, partnership, limited liability company or division or other business unit or segment thereof, whether through purchase of assets, merger or otherwise, or (ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the outstanding ownership interests of a partnership or limited liability company.
Act” has the meaning specified in Section 10.18.
Administrative Agent” means Bank of America (or any of its designated branch offices or affiliates, including Bank of America acting through its Canada branch for the Initial Term A-2 Loan) in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify the Company and the Lenders.
Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
CHAR1\1981890v5


Aggregate Revolving A Commitments” means the aggregate Revolving A Commitments of all the Revolving A Lenders. The aggregate principal amount of the Aggregate Revolving A Commitments in effect on the Second Amendment Effective Date is EIGHT HUNDRED TWENTY MILLION DOLLARS ($820,000,000).
Aggregate Revolving B Commitments” means the aggregate Revolving B Commitments of all the Revolving B Lenders. The aggregate principal amount of the Aggregate Revolving B Commitments in effect on the Second Amendment Effective Date is THIRTY MILLION DOLLARS ($30,000,000).
Aggregate Revolving Commitments” means the Aggregate Revolving A Commitments and/or the Aggregate Revolving B Commitments, as applicable.
Agreed Currency” means Dollars or any Alternative Currency, as applicable.
Agreement” means this Credit Agreement.
Alternative Currency” means each of Canadian Dollars, Euro, Sterling and each other currency (other than Dollars) that is approved in accordance with Section 1.06.
Alternative Currency Authority” means, with respect to any Alternative Currency, the applicable administrator for the Relevant Rate for such Alternative Currency or any Governmental Authority having jurisdiction over the Administrative Agent or such administrator.
Alternative Currency Conforming Changes” means, with respect to the use, administration of or any conventions associated with SONIA, EURIBOR, the CDOR Rate or any proposed Successor Rate for an Alternative Currency (other than Canadian Dollars), as applicable, any conforming changes to the definitions of “SONIA”, “EURIBOR”, “CDOR Rate”, “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including the definition of “Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice for such Alternative Currency (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate for such Alternative Currency exists, in such other manner of administration as the Administrative Agent (in consultation with the Company) determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
Alternative Currency Daily Rate” means, for any day, with respect to any Credit Extension:
(a)    denominated in Sterling, the rate per annum equal to SONIA determined pursuant to the definition thereof plus the SONIA Adjustment; and
(b)    denominated in any other Alternative Currency (to the extent such Loans denominated in such currency will bear interest at a daily rate), the daily rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the relevant Lenders pursuant to Section 1.06(a) plus the adjustment (if any) determined by the Administrative Agent and the relevant Lenders pursuant to Section 1.06(a);
Article Vprovided, that, (i) if any Alternative Currency Daily Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement and (ii) any change in an Alternative Currency Daily Rate shall be effective from and including the date of such change without further notice.
Alternative Currency Daily Rate Loan” means a Loan that bears interest at a rate based on the definition of “Alternative Currency Daily Rate.” All Alternative Currency Daily Rate Loans must be denominated in an Alternative Currency.
CHAR1\1981890v5


Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the L/C Issuer, as the case may be, by reference to Bloomberg (or such other publicly available service for displaying exchange rates), to be the exchange rate for the purchase of such Alternative Currency with Dollars at approximately 11:00 a.m. on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided, that, if no such rate is available, the “Alternative Currency Equivalent” shall be determined by the Administrative Agent or the L/C Issuer, as the case may be, using any reasonable method of determination it deems appropriate in its reasonable discretion (and such determination shall be conclusive absent manifest error).
Alternative Currency Loan” means an Alternative Currency Daily Rate Loan or an Alternative Currency Term Rate Loan, as applicable.
Alternative Currency Term Rate” means, for any Interest Period, with respect to any Credit Extension:
(a)    denominated in Euros, the rate per annum equal to the Euro Interbank Offered Rate, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (“EURIBOR”) on the day that is two TARGET Days preceding the first day of such Interest Period with a term equivalent to such Interest Period;
(b)    denominated in Canadian Dollars, the rate per annum equal to the Canadian Dollar Offered Rate, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (the “CDOR Rate”) on the first day of such Interest Period (or if such day is not a Business Day, then on the immediately preceding Business Day) with a term equivalent to such Interest Period; and
(c)    denominated in any other Alternative Currency (to the extent such Loans denominated in such currency will bear interest at a term rate), the term rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the relevant Lenders pursuant to Section 1.06(a) plus the adjustment (if any) determined by the Administrative Agent and the relevant Lenders pursuant to Section 1.06(a);
Article VIprovided, that, if any Alternative Currency Term Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
Alternative Currency Term Rate Loan” means a Loan that bears interest at a rate based on the definition of “Alternative Currency Term Rate.” All Alternative Currency Term Rate Loans must be denominated in an Alternative Currency.
Applicable Percentage” means, with respect to any Lender at any time, (a) with respect to such Revolving A Lender’s Revolving A Commitment, the percentage of the Aggregate Revolving A Commitments represented by such Revolving A Lender’s Revolving A Commitment at such time, subject to adjustment as provided in Section 2.15; provided that if the commitment of each Revolving A Lender to make Revolving A Loans and the obligation of the L/C Issuer to make L/C Credit Extensions thereunder have been terminated pursuant to Section 8.01 or if the Aggregate Revolving A Commitments have expired, then the Applicable Percentage of each Revolving A Lender shall be determined based on the Applicable Percentage of such Revolving A Lender most recently in effect, giving effect to any subsequent assignments, (b) with respect to such Revolving B Lender’s Revolving B Commitment, the percentage of the Aggregate Revolving B Commitments represented by such Revolving B Lender’s Revolving B Commitment at such time, subject to adjustment as provided in Section 2.15, provided that if the commitment of each Revolving B Lender to make Revolving B Loans and the obligation of the L/C Issuer to make L/C Credit Extensions thereunder have been terminated pursuant to Section 8.01 or if the Aggregate Revolving B Commitments have expired, then the Applicable Percentage of each Revolving B Lender shall be determined based on the Applicable Percentage of such Revolving B Lender most
CHAR1\1981890v5


recently in effect, giving effect to any subsequent assignments, (c) with respect to such Lender’s portion of the outstanding Initial Term Loan at any time, the percentage (carried out to the ninth decimal place) of the outstanding principal amount of the Initial Term Loan held by such Lender at such time, subject to adjustment as provided in Section 2.15, (d) with respect to such Lender’s portion of the outstanding Initial Term A-2 Loan at any time, the percentage (carried out to the ninth decimal place) of the outstanding principal amount of the Initial Term A-2 Loan held by such Lender at such time, subject to adjustment as provided in Section 2.15, (e) with respect to such Lender’s Term A-3 Loan Commitments and/or such Lender’s portion of the outstanding Term A-3 Loan, as applicable, (i) at any time during the Term A-3 Loan Availability Period, the percentage (carried out to the ninth decimal place) of the aggregate Term A-3 Loan Commitments and the outstanding Term A-3 Loan represented by such Lender’s Term A-3 Loan Commitment and the outstanding principal amount of the Term A-3 Loan held by such Lender at such time and (ii) at any time thereafter, the percentage (carried out to the ninth decimal place) of the outstanding principal amount of the Term A-3 Loan held by such Lender at such time, and (f) with respect to such Lender’s portion of any outstanding Incremental Term Loan (other than the Term A-3 Loan) at any time, the percentage (carried out to the ninth decimal place) of the outstanding principal amount of such Incremental Term Loan held by such Lender at such time, subject to adjustment as provided in Section 2.15. The Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01, in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.02 or 2.17, as applicable.
Applicable Rate” means with respect to:
(a)    any Incremental Term Loan made pursuant to any Incremental Term Loan Lender Joinder Agreement, the percentage(s) per annum set forth in such Incremental Term Loan Lender Joinder Agreement;
(b)    Revolving Loans, Swing Line Loans, the Initial Term Loan, the Initial Term A-2 Loan, the Term A-3 Loan, the Commitment Fee, the Term A-3 Loan Ticking Fee, and Letter of Credit Fees, the following percentages per annum, based upon the Consolidated Total Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.01(c):
Pricing
Level
Consolidated Total Net Leverage RatioRevolving Loans, Swing Line Loans, Initial Term Loan, and Initial Term A-2 LoanTerm A-3 LoanCommitment Fee and Term A-3 Loan Ticking Fee
LIBOR
Rate
Term SOFR Loans, Alternative Currency Loans and Letter of Credit Fees
Base
Rate Loans and Canadian Prime Rate Loans
Term SOFR LoansBase
Rate Loans
1< 1.25 to 1.001.125%0.125%1.375%0.375%0.175%
2
> 1.25 to 1.00 but
< 2.00 to 1.00
1.250%0.250%1.500%0.500%0.200%
3
> 2.00 to 1.00 but
< 2.50 to 1.00
1.500%0.500%1.750%0.750%0.250%
4
> 2.50 to 1.00 but
< 3.25 to 1.00
1.750%0.750%2.000%1.000%0.300%
5
> 3.25 to 1.00 but
< 4.00 to 1.00
2.000%1.000%2.250%1.250%0.325%
6
> 4.00 to 1.00
2.250%1.250%2.500%1.500%0.350%
Article VIIAny increase or decrease in the Applicable Rate resulting from a change in the Consolidated Total Net Leverage Ratio shall become effective as of the first Business Day immediately
CHAR1\1981890v5


following the date a Compliance Certificate is delivered pursuant to Section 6.01(c); provided that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Lenders, Pricing Level 5 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered. Subject to the proviso in the immediately preceding sentence, the Applicable Rate in effect from the Third Amendment Effective Date through the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.01(c) for the fiscal quarter of the Company ending October 2, 2022 shall be determined based upon Pricing Level 4.
Article VIIINotwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).
Applicable Time” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Arrangers” means BofA Securities, TD Securities (USA) LLC and Wells Fargo Securities, LLC, in their capacities as joint lead arrangers and joint bookrunners.
Asset Sale” means any Disposition by the Company or any of its Restricted Subsidiaries made pursuant to Section 7.02(e), (s), (u), (x) or (aa) to any Person other than the Company or any other Restricted Subsidiary of any asset (including, without limitation, any capital stock or other Equity Interests of another Person, but excluding the sale by such Person of its own Equity Interests) of the Company or such Restricted Subsidiary; provided, that, any Immaterial Asset Sale shall not constitute an “Asset Sale”.
Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit D or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
Attorney Costs” means and includes all reasonable and documented fees, expenses and disbursements of any law firm or other external counsel.
Attributable Indebtedness” means, on any date, (a) in respect of any Synthetic Lease Obligation of any Person, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease and (b) in respect of any Capitalized Lease Obligation of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
Audited Financial Statements” means the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended March 31, 2021, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Company and its Subsidiaries, including the notes thereto.
Authorized Officer” means, with respect to (a) delivering financial information and officer’s certificates pursuant to this Agreement, the chief financial officer, the chief executive officer, the chief operating officer, the corporate controller, any treasurer or other financial officer of the Company and (b) any other matter in connection with this Agreement or any other Loan Document, any officer (or a person or persons so designated by such officer) of the applicable Credit Party, in each case to the extent reasonably acceptable to the Administrative Agent, or any other officer or employee of the applicable
CHAR1\1981890v5


Credit Party designated in an incumbency certificate delivered to the Administrative Agent or pursuant to an agreement between the applicable Credit Party and the Administrative Agent. Any document delivered hereunder that is signed by an Authorized Officer of a Credit Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Credit Party and such Authorized Officer shall be conclusively presumed to have acted on behalf of such Credit Party.
Availability Period” means, (a) with respect to the Revolving A Commitments, the period from and including the Closing Date to the earliest of (i) the Maturity Date, (ii) the date of termination of the Aggregate Revolving A Commitments in their entirety pursuant to Section 2.06, and (iii) the date of termination of the commitment of each Revolving A Lender to make Revolving A Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions under the Revolving A Tranche pursuant to Section 8.01 and (b) with respect to the Revolving B Commitments, the period from and including the Closing Date to the earliest of (i) the Maturity Date, (ii) the date of termination of the Aggregate Revolving B Commitments in their entirety pursuant to Section 2.06, and (iii) the date of termination of the commitment of each Revolving B Lender to make Revolving B Loans and the obligation of the L/C Issuer to make L/C Credit Extensions under the Revolving B Tranche pursuant to Section 8.01.
Available Amount” means, at any date, an amount equal to (a) the sum of (i) an amount, not less than zero in the aggregate, equal to 50% of Consolidated Net Income of the Company and its Restricted Subsidiaries for the period (taken as one accounting period) from April 1, 2017 to the end of the fiscal quarter most recently ended in respect of which a Compliance Certificate has been delivered as required hereunder plus (ii) on the date of receipt by the Company after the Closing Date of Net Cash Proceeds from any sale or issuance of common stock or Qualified Preferred Stock of the Company or any contribution to the common equity capital of the Company, the amount of such Net Cash Proceeds to the extent such Net Cash Proceeds do not increase the Available JV Basket Amount plus (iii) the Net Cash Proceeds received by the Borrowers and their respective Restricted Subsidiaries of Dispositions of Investments made using the Available Amount to the extent such Net Cash Proceeds are not required to prepay the Loans pursuant to Section 2.05(b) in an amount not to exceed the amount of the original Investment plus (iv) returns received in cash or Cash Equivalents by the Borrowers and their respective Restricted Subsidiaries on Investments made using the Available Amount (including Investments in Unrestricted Subsidiaries) in an amount not to exceed the amount of the original Investment plus (v) any Declined Amounts minus (b) the sum of the amount of (i) any Investment made (or deemed made) pursuant to Section 7.05(p) plus (ii) any Dividend made in reliance on Section 7.06(e), in each case, as of such date.
Available JV Basket Amount” means, on any date of determination, an amount equal to the sum of (a) the greater of (i) $325,000,000 and (ii) 7.50% of Consolidated Total Assets, plus (b) on the date of receipt by the Company after the Closing Date of Net Cash Proceeds from any sale or issuance of common stock or Qualified Preferred Stock of the Company or any contribution to the common equity capital of the Company, the amount of such Net Cash Proceeds to the extent such Net Cash Proceeds do not increase the Available Amount minus (c) the aggregate amount of Investments made (including for such purpose the fair market value of any assets contributed to any Joint Venture or Unrestricted Subsidiary (in each case, as determined in good faith by the Company), net of Indebtedness and, without duplication, Capitalized Lease Obligations assigned to, and assumed by, the respective Joint Venture or Unrestricted Subsidiary in connection therewith) pursuant to Section 7.05(n) after the Closing Date, minus (d) the aggregate amount of Indebtedness or other obligations (whether absolute, accrued, contingent or otherwise and whether or not due) of any Joint Venture or Unrestricted Subsidiary for which the Company or any of its Restricted Subsidiaries (other than the respective Joint Venture or Unrestricted Subsidiary, as applicable) is liable, minus (e) all payments made by the Company or any of its Restricted Subsidiaries (other than the respective Joint Venture or Unrestricted Subsidiary, as applicable) in respect of Indebtedness or other obligations of the respective Joint Venture or Unrestricted Subsidiary, as applicable, (including, without limitation, payments in respect of obligations described in preceding clause (d)) after the Closing Date, plus (f) the amount of any increase to the Available JV Basket Amount made after the Closing Date in accordance with the provisions of Section 7.05(n).
Available Tenor” means, as of any date of determination and with respect to the then-current Canadian Benchmark, as applicable, (a) if the then-current Canadian Benchmark is a term rate, any tenor
CHAR1\1981890v5


for such Canadian Benchmark that is or may be used for determining the length of an Interest Period or (b) otherwise, any payment period for interest calculated with reference to such Canadian Benchmark, as applicable, pursuant to this Agreement as of such date.
Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
Bank of America” means Bank of America, N.A. and its successors.
Base Rate” means for any day a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds Effective Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) (i) with respect to the Term A-3 Loan, Term SOFR plus 1% or (ii) for all other purposes except with respect to the Term A-3 Loan, the LIBOR Rate plus 1%, in each case, subject to the interest rate floors set forth therein; provided, that, if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such “prime rate” announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03, then the Base Rate shall be the greater of clauses (a) and (b) of this definition and shall be determined without reference to clause (c) of this definition.
Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.
Benchmark” means, initially, LIBOR; provided, that, if a replacement of the Benchmark has occurred pursuant to Section 3.03(b) then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark <Replacement has replaced such prior benchmark rate. Any reference to “>Benchmark<” shall include, as applicable, the published component used in the calculation thereof.>
Benchmark Replacement” means:
(a)    <for purposes of Section 3.03(b)(i), the first alternative set forth >below <that can be determined by the Administrative Agent: (i) the sum of: (A) Term >SOFR and (B) 0.03839% (3.839 basis points) for an Available Tenor of one-week’s duration, 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, and 0.71513% (71.513 basis points) for an Available Tenor of twelve-months’ duration, or (ii) the sum of: (A) Daily Simple SOFR and (B) 0.11448% (11.448 basis points); provided, that, if initially LIBOR is replaced with the rate contained in clause (ii) above (Daily Simple SOFR plus the applicable spread adjustment) and subsequent to such replacement, the Administrative Agent determines that Term SOFR has become available and is administratively feasible for the Administrative Agent in its sole discretion, and the Administrative Agent notifies the Borrowers and each Lender of such availability, then from and after the beginning of the Interest Period, relevant interest payment date or payment period for interest calculated, in each case, commencing no less than thirty (30) days after the date of such notice, the Benchmark Replacement shall be as set forth in clause (i) above; and
CHAR1\1981890v5


(b)    <for purposes of Section 3.03(b)(ii), the sum of (i) the alternate benchmark rate and (ii) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrowers as the replacement ><Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by >a Relevant Governmental Body, for Dollar-denominated syndicated credit facilities at such time;
provided, that, (x) if the Benchmark Replacement as determined pursuant to clause (a) or (b) of this definition would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement and the other Loan Documents, and (y) any Benchmark <Replacement shall be applied in a manner consistent with market practice; provided, that, to the extent such market practice is not administratively feasible for the Administrative Agent, such ><Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.>
Benchmark Replacement Conforming Changes” means, with respect to any Benchmark <Replacement, any technical, administrative or operational changes (including changes to the definition of “>Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing <and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such ><Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such ><Benchmark Replacement exists, in such other manner of administration as the Administrative Agent >(in consultation with the Company in connection with any Benchmark Replacement determined pursuant to clause (b) of the definition of “Benchmark Replacement”) <decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).>
Benchmark Transition Event” means, with respect to any then-current Benchmark other than LIBOR<, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current >Benchmark or a Governmental Authority with jurisdiction over such administrator announcing or stating that all Available Tenors are or will no longer be representative, or made available, or used for determining the interest rate of loans, or shall or will otherwise cease, provided that<, at the time of such statement or publication, there is no successor administrator that >is satisfactory to the Administrative Agent, that will continue to provide any representative tenors of such Benchmark after such specific date.
Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
Board” means the Board of Governors of the Federal Reserve System of the United States.
BofA Securities” means BofA Securities, Inc.
Borrower” means the Company and any Designated Borrower that is identified on Schedule 5.12 as a Borrower or becomes a Borrower under the terms of Section 2.16.
CHAR1\1981890v5


Borrower Materials” has the meaning specified in Section 6.01.
Borrower Request and Assumption Agreement” has the meaning specified in Section 2.16(a).
Borrowing” means each of the following, as the context may require: (a) a borrowing of Swing Line Loans pursuant to Section 2.04, and (b) a borrowing consisting of simultaneous Loans of the same Type, in the same currency and, in the case of LIBOR Rate Loans, Term SOFR Loans, and Alternative Currency Term Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:
(a)    if such day relates to any interest rate settings as to a LIBOR Rate Loan, any fundings, disbursements, settlements and payments in Dollars in respect of any such LIBOR Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such LIBOR Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market;
(ba)    if such day relates to any interest rate settings as to an Alternative Currency Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Alternative Currency Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Alternative Currency Loan, means a TARGET Day;
(cb)    if such day relates to any interest rate settings as to an Alternative Currency Loan denominated in Sterling, means a day other than a day banks are closed for general business in London because such day is a Saturday, Sunday or a legal holiday under the laws of the United Kingdom;
(dc)    if such day relates to any fundings, disbursements, settlements and payments in Canadian Dollars in respect of a Loan denominated in Canadian Dollars, or any other dealings in Canadian Dollars to be carried out pursuant to this Agreement in respect of any such Loan, means any such day on which banks are open for foreign exchange business in Toronto, Ontario; and
(ed)    if such day relates to any fundings, disbursements, settlements and payments in a currency other than Canadian Dollars, Sterling or Euro in respect of an Alternative Currency Loan denominated in a currency other than Canadian Dollars, Sterling or Euro, or any other dealings in any currency other than Canadian Dollars, Sterling or Euro to be carried out pursuant to this Agreement in respect of any such Alternative Currency Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.
Canadian AML Acts” means applicable Canadian law regarding anti-money laundering, anti-terrorist financing, government sanction and “know your client” matters, including the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada).
“Canadian Benchmark” means, initially, the CDOR Rate; provided, that, if a replacement of the Canadian Benchmark has occurred pursuant to Section 3.03(b), then “Canadian Benchmark” means the applicable Canadian Benchmark Replacement to the extent that such Canadian Benchmark >Replacement has replaced such prior benchmark rate. Any reference to “<Canadian Benchmark>” shall include, as applicable, the published component used in the calculation thereof.<
“Canadian Benchmark Replacement” means, for any Available Tenor: (a) >for purposes of Section 3.03(b)(i), the first alternative set forth <as follows >that can be determined by the Administrative Agent: (i) the sum of: (A) Term <CORRA and (B) 0.29547% (29.547 basis points) for an Available Tenor of one-month’s duration, and 0.32138% (32.138 basis points) for an Available Tenor of three-months’ duration, or (ii) the sum of: (A) Daily Compounded CORRA and (B) 0.29547% (29.547 basis
CHAR1\1981890v5


points) for an Available Tenor of one-month’s duration, and 0.32138% (32.138 basis points) for an Available Tenor of three-months’ duration; and (b) >for purposes of Section 3.03(b)(ii), the sum of (i) the alternate benchmark rate and (ii) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrowers as the replacement <for such Available Tenor of such Canadian >Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by <the Relevant Canadian Governmental Body, for Canadian dollar-denominated syndicated credit facilities at such time; provided, that, if the Canadian Benchmark Replacement as determined pursuant to clause (a) or clause (b) of this definition above would be less than zero percent (0%), the Canadian Benchmark Replacement will be deemed to be zero percent (0%) for the purposes of this Agreement and the other Loan Documents. Any Canadian Benchmark >Replacement shall be applied in a manner consistent with market practice; provided, that, to the extent such market practice is not administratively feasible for the Administrative Agent, such <Canadian >Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.<
“Canadian Benchmark Replacement Conforming Changes” means, with respect to any Canadian Benchmark >Replacement, any technical, administrative or operational changes (including changes to the definition of “<Alternative Currency Daily Rate”, the definition of “Alternative Currency Term Rate”, the definition of “Business Day”, the definition of “Canadian Prime Rate”, the definition of “CDOR Rate”, the definition of “Interest Period”, timing >and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such <Canadian >Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such <Canadian >Benchmark Replacement exists, in such other manner of administration as the Administrative Agent <>decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).<
“Canadian Benchmark Transition Event” means, with respect to any then-current Canadian Benchmark other than the CDOR Rate>, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current <Canadian Benchmark, the regulatory supervisor for the administrator of such Canadian Benchmark, any Governmental Authority with jurisdiction over such administrator for such Canadian Benchmark, or the Bank of Canada, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Canadian Benchmark, permanently or indefinitely, provided, that>, at the time of such statement or publication, there is no successor administrator that <will continue to provide any Available Tenor of such Canadian Benchmark or (b) all Available Tenors of such Canadian Benchmark are or will no longer be representative of the underlying market and economic reality that such Canadian Benchmark is intended to measure and that representativeness will not be restored.
Canadian Borrower” means Alpha Technologies Ltd., a corporation amalgamated under the laws of the Province of British Columbia.
Canadian Defined Benefit Pension Plan” means a Foreign Pension Plan that contains or has ever contained a “defined benefit provision” as such term is defined in Section 147.1(1) of the Income Tax Act (Canada).
Canadian Dollar” or “C$” means the lawful currency of Canada.
Canadian Prime Rate” means, for any day, a fluctuating rate of interest per annum equal to the greater of (a) the per annum rate of interest quoted or established as the “prime rate” of the Administrative Agent which it quotes or establishes for such day as its reference rate of interest in order to determine interest rates for commercial loans in Canadian Dollars in Canada to its Canadian borrowers; and (b) the average CDOR Rate for a 30-day term plus ½ of 1% per annum, adjusted automatically with each quoted or established change in such rate, all without the necessity of any notice to any Borrower or any other
CHAR1\1981890v5


Person. Such prime rate is based on various factors including cost and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the prime rate shall take effect at the opening of business on the day specified in the public announcement of such change. Notwithstanding anything to the contrary contained herein, if the Canadian Prime Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
Canadian Prime Rate Loan” means any portion of the Initial Term A-2 Loan that bears interest based on the Canadian Prime Rate. All Canadian Prime Rate Loans shall be denominated in Canadian Dollars.
Capital Expenditures” means, with respect to any Person, for any period, all expenditures by such Person which should be capitalized in accordance with GAAP during such period and are, or are required to be, included in property, plant or equipment reflected on the consolidated balance sheet of such Person (including, without limitation, expenditures for maintenance and repairs which should be so capitalized in accordance with GAAP) and, without duplication, the amount of all Capitalized Lease Obligations incurred by such Person during such period.
Capital Lease,” as applied to any Person, means any lease of any property (whether real, personal or mixed) by that Person as lessee which, in conformity with GAAP (determined as provided in Section 1.03), is accounted for as a capital lease on the balance sheet of that Person.
Capitalized Lease Obligations” means all obligations under Capital Leases of the Company and its Restricted Subsidiaries, in each case taken at the amount thereof accounted for as liabilities in accordance with GAAP; provided, however, all obligations of any Person that are or would have been treated as operating leases (including for avoidance of doubt, any network lease or any Operating IRU) for purposes of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the “ASU”) shall continue to be accounted for as operating leases for purposes of all financial definitions and calculations for purpose of this Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a prospective or retroactive basis or otherwise) to be treated as Capitalized Lease Obligations in the financial statements to be delivered pursuant to Section 6.01(a) and 6.01(b).
Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or the Lenders, as collateral for L/C Obligations or obligations of the Revolving A Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and the L/C Issuer shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the L/C Issuer. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
Cash Equivalents” means (a) demand deposit accounts held in accounts denominated in U.S. Dollars and, in the case of any of Foreign Subsidiaries, such local currencies held in accounts denominated in Euros, Chinese Yuan, Singapore Dollars, Rubles, Canadian Dollars, Sterling, Swiss Franc and/or such other currencies from time to time, (b) securities issued or directly fully guaranteed or insured by the governments of the United States, The Netherlands, Great Britain, France or Germany or any agency or instrumentality thereof (provided that the full faith and credit of the respective such government is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition, (c) certificates of deposit and eurodollar time deposits with maturities of twelve months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding twelve months and overnight bank deposits, in each case with any domestic commercial bank or commercial bank of a foreign country recognized by the United States, in each case (i) having capital and surplus in excess of $500,000,000 (or the foreign currency equivalent thereof) and (ii) the outstanding debt of which is rated “A” (or similar equivalent thereof) or higher by at least one nationally recognized statistical rating organization (as defined under Rule 436 under the Securities Act of 1933) or any money-market fund sponsored by a registered broker dealer or mutual fund distributor; provided that up to $15,000,000 of cash equivalents of the type described in this clause (c) shall be deemed to be “Cash Equivalents” if all
CHAR1\1981890v5


the requirements of this clause (c) (other than preceding clause (ii)) are satisfied, (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) above and (e) commercial paper having one of the two highest ratings obtainable from S&P or Moody’s and in each case maturing within twelve months after the date of acquisition. Furthermore, with respect to Foreign Subsidiaries, Cash Equivalents shall include bank deposits (and investments pursuant to operating account agreements) maintained with various local banks in the ordinary course of business consistent with past practices of the Company’s Foreign Subsidiaries.
Cash Management Agreement” means any agreement to provide treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.
Cash Management Bank” means any Person that (a) at the time it enters into a Cash Management Agreement, is a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, (b) in the case of any Cash Management Agreement in effect on or prior to the Closing Date, is, as of the Closing Date or within 30 days thereafter, a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent and a party to a Cash Management Agreement or (c) within 30 days after the time it enters into the applicable Cash Management Agreement, becomes a Lender, the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, in each case, in its capacity as a party to such Cash Management Agreement.
CDOR Rate” has the meaning specified in clause (b) of the definition of “Alternative Currency Term Rate”.
CFC” means a Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of the Code and each Subsidiary of any such “controlled foreign corporation”.
Change in Control” means (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) is or shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Securities Exchange Act of 1934), directly or indirectly, of greater than 35% of the economic or voting interests in the Company’s capital stock or (b) the Company ceases to own (directly or indirectly) 100% of the outstanding shares of the voting stock of each Designated Borrower.
Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any Law, (b) any change in any Law or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, implemented or issued.
Closing Date” means August 4, 2017.
CME” means CME Group Benchmark Administration Limited.
Code” means the United States Internal Revenue Code of 1986, as amended.
Collateral” means all “Collateral” or other similar term referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be
CHAR1\1981890v5


subject to Liens in favor of the Administrative Agent, for the benefit of itself and the other holders of the Obligations and excluding, for the avoidance of doubt, any Excluded Property.
Collateral Documents” means a collective reference to the Security Agreement and other collateral documents as may be executed and delivered by any Credit Party pursuant to the terms of Section 6.10 or any of the Loan Documents.
Collateral Release Period” mean any period during which (i) the corporate credit rating of the Company is at least BBB- (with stable or better outlook) from S&P and at least Baa3 (with stable or better outlook) from Moody’s, (ii) no Default or Event of Default then exists or is continuing and (iii) no Incremental Equivalent Debt, Incremental Term Loans, Refinancing Notes, Refinancing Junior Loans and/or any other Indebtedness for borrowed money (other than the Obligations) with an aggregate outstanding principal amount in excess of $75,000,000 (or any Permitted Refinancing of any of the foregoing) is secured by a Lien on any assets of any Credit Party (unless such Liens are contemporaneously released) and is then outstanding. Each Collateral Release Period shall (x) commence upon (a) the Company’s satisfaction of the conditions set forth in the immediately preceding sentence and (b) certification by the Company thereof and (y) shall terminate on the first date following the commencement of such Collateral Release Period on which the Company ceases to satisfy any of the above conditions.
Commitment” means a Term Loan Commitment or a Revolving Commitment, as the context may require.
Commitment Fee” has the meaning specified in Section 2.09(a).
Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
Communication” means this Agreement, any Loan Document, and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to any Loan Document.
Company” has the meaning specified in the introductory paragraph hereto.
Competitor” means any competitor of the Company or any of its Subsidiaries that is in the same or a similar line of business as the Company or any of its Subsidiaries and is designated in writing from time to time by the Company to the Administrative Agent.
Compliance Certificate” means a certificate substantially in the form of Exhibit C.
Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes).
Consolidated Debt” means, at any time, the difference of (a) the sum of (without duplication) (i) the principal amount of all Indebtedness of the Company and its Restricted Subsidiaries (on a consolidated basis) as would be required to be reflected as debt or capital leases on the liability side of a consolidated balance sheet of the Company and its Restricted Subsidiaries in accordance with GAAP, (ii) all Indebtedness of the Company and its Restricted Subsidiaries of the type described in clause (c) of the definition of Indebtedness, (iii) the aggregate amount of Foreign Receivables Indebtedness and Receivables Indebtedness of the Company and its Restricted Subsidiaries outstanding at such time that is in excess of $150,000,000, and (iv) Attributable Indebtedness in respect of Synthetic Lease Obligations (but excluding Attributable Indebtedness in respect of or arising in connection with an IRB Sale-Leaseback Transaction) at such time minus (b) the aggregate amount of Unrestricted Cash of the Credit Parties and the Foreign Subsidiaries at such time to the extent same would be reflected on a consolidated balance sheet of the Company if same were prepared on such date. For the avoidance of doubt, Excluded Securitization Transactions shall not constitute “Consolidated Debt”.
CHAR1\1981890v5


Consolidated EBIT” means, for any period, the Consolidated Net Income of the Company and its Restricted Subsidiaries plus, in each case to the extent actually deducted in determining Consolidated Net Income for such period, consolidated interest expense of the Company and its Restricted Subsidiaries and provision for income taxes, adjusted to exclude for such period (a) any extraordinary gains or losses, (b) gains or losses from sales of assets other than inventory sold in the ordinary course of business, (c) any write-downs of non-current assets relating to impairments or the sale of non-current assets or (d) any non-cash expenses incurred in connection with stock options, stock appreciation rights or similar equity rights.
Consolidated EBITDA” means for any period, Consolidated EBIT, adjusted by (a) adding thereto (in each case to the extent deducted in determining Consolidated Net Income for such period and not already added back in determining Consolidated EBIT), with respect to the Company and its Restricted Subsidiaries, the amount of, without duplication, (i) all amortization and depreciation that were deducted in arriving at Consolidated EBIT for such period, (ii) any non-cash charges in such period to the extent that such non-cash charges do not give rise to a liability that would be required to be reflected on the consolidated balance sheet of the Company and its Restricted Subsidiaries and so long as no cash payments or cash expenses will be associated therewith (whether in the current period or for any other period), (iii) fees and expenses incurred by the Company and its Restricted Subsidiaries during such period in connection with the Transaction, the consummation of a Permitted Acquisition or any other Investment or Disposition, the issuance of any Equity Interests, any actual or proposed incurrence of Indebtedness or the Investment in any Joint Venture or Unrestricted Subsidiary, in each case permitted hereunder, (iv) cash charges not to exceed $10,000,000 incurred in connection with the termination of Swap Agreements during such period, (v) any non-recurring charges, costs, fees and expenses directly incurred or paid directly as a result of discontinuing operations, (vi) any other extraordinary, unusual or non-recurring cash charges or expenses incurred outside the ordinary course of business, provided that the aggregate amount added pursuant to this clause (vi), clause (vii) below and clause (viii) below shall not exceed 25% of Consolidated EBITDA (determined prior to giving effect to such add-backs) for such period, (vii) the amount of cost savings and synergies projected by the Company in good faith to be realized as a result of any Acquisition permitted hereunder within the first four consecutive fiscal quarters following the consummation of such Acquisition, calculated as though such cost savings and synergies had been realized on the first day of such period and net of the amount of actual benefits received during such period from such Acquisition provided, that, (A) such cost savings or synergies are reasonably identifiable and factually supportable and (B) the aggregate amount added pursuant to this clause (vii), clause (vi) above and clause (viii) below shall not exceed 25% of Consolidated EBITDA (determined prior to giving effect to such add-backs) for such period, (viii) restructuring and related charges, integration costs, business optimization expenses and charges attributable to, and payments of, legal settlements, fines, judgments or orders and severance, relocation costs, facilities start-up costs, recruiting fees, signing costs, retention or completion bonuses and transition costs, provided that the aggregate amount added pursuant to this clause (viii), clause (vi) above and clause (vii) above shall not exceed 25% of Consolidated EBITDA (determined prior to giving effect to such add-backs) for such period, (ix) any costs or expenses incurred pursuant to any management equity plan, stock option plan or any other management or employee benefit plan, agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of such Person or net cash proceeds of an issuance of Equity Interests of such Person (other than Disqualified Preferred Stock), (x) any non-cash impairment charge or asset write-off or write-down (other than write-offs or write-downs of current assets) in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP, (xiii) any expenses, charges or losses to the extent covered by insurance that are, directly or indirectly, reimbursed or reimbursable by a third party, and any expenses, charges or losses that are covered by indemnification or other reimbursement provisions only to the extent that such amount is in fact reimbursed within 365 days of the date of such determination (with a deduction in the applicable future period for any amount so excluded to the extent not so reimbursed within such 365 days) and (b) subtracting therefrom, to the extent included in arriving at Consolidated EBIT for such period, with respect to the Company and its Restricted Subsidiaries, the amount of, without duplication, (i) the amount of non-cash gains during such period, (ii) any income directly attributable to discontinued operations.
CHAR1\1981890v5


Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the most recently completed four fiscal quarters to (b) Consolidated Net Interest Expense for such period.
Consolidated Net Income” means, for any period, the net after tax income (or loss) of the Company and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP; provided that in determining Consolidated Net Income of the Company and its Restricted Subsidiaries (a) the net income of any Person which is not a Restricted Subsidiary of the Company or is accounted for by the Company by the equity method of accounting shall be included only to the extent of the payment of dividends or disbursements by such Person to the Company or a wholly-owned Restricted Subsidiary of the Company during such period, (b) except for determinations expressly required to be made on a Pro Forma Basis, the net income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary or all or substantially all of the property or assets of such Person are acquired by a Restricted Subsidiary shall be excluded from such determination, and (c) the net income of any Restricted Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of such net income is not at the time permitted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Restricted Subsidiary shall be excluded from such determination. Consolidated Net Income shall be calculated without regard to (i) the cumulative effect of a change in accounting principles during such period and (ii) effects of adjustments pursuant to GAAP resulting from the application of application of recapitalization accounting or purchase accounting (including in the inventory, property and equipment, software, goodwill, intangible assets, in process research and development, deferred revenue and debt line items).
Consolidated Net Interest Expense” means, for any period, (a) the total consolidated interest expense of the Company and its Restricted Subsidiaries for such period (calculated without regard to any limitations on payment thereof) plus, to the extent not included above, the Foreign Receivables Facilities Financing Costs and the Receivables Facilities Financing Costs for such period, adjusted to exclude (to the extent same would otherwise be included in the calculation above in this clause (a)) (i) the amortization of any deferred financing costs for such period, (ii) non-cash interest expense (including amortization of discount and interest which will be added to, and thereafter become part of, the principal or liquidation preference of the respective Indebtedness or Preferred Stock through a pay-in-kind feature or otherwise, but excluding all regularly accruing interest expense which will be payable in cash in a subsequent period) payable in respect of any Indebtedness or Preferred Stock and (iii) dividends on Qualified Preferred Stock in the form of additional Qualified Preferred Stock, plus (b) without duplication, that portion of Capitalized Lease Obligations of the Company and its Restricted Subsidiaries on a consolidated basis representing the interest factor for such period minus (c) the cash portion of interest income of the Company and its Restricted Subsidiaries on a consolidated basis for such period (for this purpose, excluding any cash interest income received by any non-wholly owned Restricted Subsidiary to the same extent as such amount, if representing net income, would be excluded from Consolidated Net Income pursuant to the proviso to the definition thereof), all as determined in accordance with GAAP (subject to the express requirements set forth above).
Consolidated Secured Net Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Debt (other than Consolidated Debt of the Company and its Restricted Subsidiaries that is not secured by a Lien on any property of the Company or any Restricted Subsidiary) of the Company and its Restricted Subsidiaries as of such date to (b) Consolidated EBITDA for the most recently completed four fiscal quarters.
Consolidated Total Assets” means, as of any date of determination, total assets of the Company and its Restricted Subsidiaries on a consolidated basis determined in accordance with GAAP, as shown on the most recent consolidated balance sheet of the Company delivered (or required to be delivered) pursuant to Section 6.01(a) or 6.01(b).
Consolidated Total Net Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Debt of the Company and its Restricted Subsidiaries as of such date to (b) Consolidated EBITDA for the most recently completed four fiscal quarters.
CHAR1\1981890v5


Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlled” has the meaning correlative thereto.
Corporate Restructuring” means (a) the transfer of any Foreign Subsidiary (or any Equity Interests or assets in any Foreign Subsidiary) to any other Foreign Subsidiary or Domestic Subsidiary, (b) the transfer by any Foreign Subsidiary of any Domestic Subsidiary (or Equity Interests or assets in any Domestic Subsidiary) to any other Foreign Subsidiary or Domestic Subsidiary, (c) the formation of any Foreign Subsidiary, (d) the merger or consolidation of any Subsidiary with a Domestic Subsidiary (provided that if a Borrower is party to such transaction, such Borrower shall be the surviving entity), (e) the merger or consolidation of any Foreign Subsidiary with any Foreign Subsidiary (provided that if a Borrower is party to such transaction, such Borrower shall be the surviving entity) and (f) the merger or consolidation of any Subsidiary with any Domestic Credit Party (provided that (i) if the Company is a party to such transaction, the Company shall be the surviving entity, (ii) if a Borrower is party to such transaction, such Borrower shall be the surviving entity and (iii) if a Guarantor (other than Esfinco, LLC, so long as the Credit Parties have not transferred any material assets to Esfinco, LLC, after the Closing Date) is a party to such transaction, such Guarantor shall be the surviving entity) in each case, in connection with bona fide tax planning activities so long as (x) taken as a whole, the value of the Collateral securing the Obligations is not materially reduced and (y) the security interests of the Administrative Agent, on behalf of the Lenders, in the Collateral, taken as a whole, are not materially impaired, in each case, as reasonably determined by the Administrative Agent in consultation with the Company.
“CORRA” means the Canadian Overnight Repo Rate Average administered and published by the Bank of Canada (or any successor administrator).
Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
Covered Party” has the meaning set forth in Section 10.21.
Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
Credit Parties” means, collectively, each Borrower and each Guarantor.
“Daily Compounded CORRA” means, for any day, CORRA with interest accruing on a compounded daily basis, with the methodology and conventions for this rate being established by the Administrative Agent.
Daily Simple SOFR” means, with respect to any applicable determination date, the SOFR published on such date on the Federal Reserve Bank of New York’s website (or any successor source).
Debt Issuance” means the issuance by the Company or any Restricted Subsidiary of any Indebtedness other than Indebtedness permitted under Section 7.04.
Debt Repurchase” has the meaning provided in Section 7.10(d).
Debtor Relief Laws” means the Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-Up and Restructuring Act (Canada), and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
CHAR1\1981890v5


Declined Amount” has the meaning set forth in Section 2.05(d).
Declining Lender” has the meaning set forth in Section 2.05(d).
Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided, however, that (A) with respect to a LIBOR Rate Loan, a Term SOFR Loan, or an Alternative Currency Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by applicable Laws, and (B) with respect to a Canadian Prime Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by applicable Laws; and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.
Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
Defaulting Lender” means, subject to Section 2.15(d), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Company in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Company, the Administrative Agent, the L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Company, to confirm in writing to the Administrative Agent and the Company that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Company), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(d)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Company, the L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.
CHAR1\1981890v5


Designated Borrower” means any Restricted Subsidiary that has been designated as a Borrower pursuant to the terms hereof and that has not ceased to be a Borrower pursuant to the terms hereof. For the avoidance of doubt, the Canadian Borrower shall constitute a Designated Borrower.
Designated Jurisdiction” means any country, region or territory to the extent that such country, region or territory itself is the subject of any comprehensive Sanction.
Designated Non-Cash Consideration” means the fair market value (as determined by the Company in good faith) of non-cash consideration received by the Company or a Restricted Subsidiary in connection with a Disposition pursuant to Section 7.02(e) that is designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Company, setting forth the basis of such valuation (which amount will be reduced by the amount of cash or Cash Equivalents received in connection with a subsequent sale or conversion of such Designated Non-Cash Consideration to cash or Cash Equivalents).
Disposition” has the meaning set forth in Section 7.02.
Disqualified Institutions” means (a) any Competitor that has been identified by legal name in writing to the Administrative Agent following the Second Amendment Effective Date (such list, as supplemented from time to time in accordance with this definition, the “DQ List”), (b) any owner of the Equity Interests of any Competitor identified pursuant to clause (a), but only to the extent such Person has been identified by legal name on the DQ List delivered to the Administrative Agent, or (c) any Affiliate of any Competitor identified pursuant to clause (a) that, in each case, is obviously (based solely on the similarity of the legal name of such Affiliate to the name of such Competitor) an Affiliate of such Competitor; provided, that, (i) the foregoing shall not apply to retroactively disqualify any Person that has previously acquired an assignment or participation in the Loans or Commitments under this Agreement to the extent that any such Person was not a Disqualified Institution at the time of the applicable assignment or participation, as the case may be and (ii) “Disqualified Institutions” shall exclude any Person that the Company has designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent and the Lenders from time to time.
Disqualified Preferred Stock” means, as to any Person, any Preferred Stock of such Person which is not Qualified Preferred Stock.
Dividends” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests of the Company or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests of the Company or any Restricted Subsidiary or on account of any return of capital to the Company’s or its Restricted Subsidiaries’ stockholders, partners or members (or the equivalent Person thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment.
Dollar” and “$” mean lawful money of the United States.
Dollar Equivalent” means, for any amount, at the time of determination thereof, (a) if such amount is expressed in Dollars, such amount, (b) if such amount is expressed in an Alternative Currency, the equivalent of such amount in Dollars determined by using the rate of exchange for the purchase of Dollars with the Alternative Currency last provided (either by publication or otherwise provided to the Administrative Agent or the L/C Issuer, as applicable) by the applicable Bloomberg source (or such other publicly available source for displaying exchange rates) on the date that is two (2) Business Days immediately preceding the date of determination (or if such service ceases to be available or ceases to provide such rate of exchange, the equivalent of such amount in Dollars as determined by the Administrative Agent or the L/C Issuer, as applicable using any method of determination it deems appropriate in its reasonable discretion), and (c) if such amount is denominated in any other currency, the equivalent of such amount in Dollars as determined by the Administrative Agent or the L/C Issuer, as applicable, using any method of determination it deems appropriate in its reasonable discretion. Any
CHAR1\1981890v5


determination by the Administrative Agent or the L/C Issuer pursuant to clauses (b) or (c) pursuant to this definition shall be conclusive absent manifest error.
Domestic Borrower” means the Company and each Designated Borrower that is a Domestic Subsidiary.
Domestic Credit Party” means each Domestic Borrower and each Guarantor that is a Domestic Subsidiary.
Domestic Subsidiary” means any Restricted Subsidiary that is organized under the laws of any political subdivision of the United States.
Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, <so long as the Administrative Agent has not received, by 5:00 p.m. >on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.
Early Opt-in Election” means the occurrence of (a) a determination by the Administrative Agent, or a notification by the Borrowers to the Administrative Agent that the Borrowers have made a determination, that Dollar-denominated syndicated credit facilities currently being executed, or that include language similar to that contained in Section 3.03(b), are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR, and (b) the joint election by the Administrative Agent and the Borrowers to replace LIBOR with a Benchmark Replacement and the provision by the Administrative Agent of written notice of such election to the Lenders.
EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Electronic Copy” has the meaning set forth in Section 10.17(a).
Electronic Record” has the meaning assigned to that term by 15 USC §7006.
Electronic Signature” has the meaning assigned to that term by 15 USC §7006.
Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(ii) and (iv) (subject to such consents, if any, as may be required under Section 10.06(b)(ii)). For the avoidance of doubt, any Disqualified Institution is subject to Section 10.06(g).
Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of non-compliance or violation, investigations or proceedings relating in any way to any violation (or alleged violation) by the Company or any of its Restricted Subsidiaries under any Environmental Law (hereafter “Claims”) or any permit issued to the Company or any of its Restricted Subsidiaries under any such law, including, without limitation, (a) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response,
CHAR1\1981890v5


remedial or other actions or damages pursuant to any applicable Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to health or the environment, pursuant to Environmental Law.
Environmental Laws” means any U.S. or non-U.S. federal, state or local law, statute, rule, regulation, ordinance, code or rule of common law now or hereafter in effect and in each case as amended, and any legally binding judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment (for purposes of this definition (collectively, “Laws”)), relating to the protection of the environment, or Hazardous Materials or health and safety to the extent such health and safety issues relate to the handling of, or exposure to, Hazardous Materials.
Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.
ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Company, 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 Section 414 of the Code.
ERISA Event” has the meaning specified in Section 6.08.
ESG” has the meaning set forth in Section 2.20.
ESG Amendment” has the meaning set forth in Section 2.20.
ESG Applicable Rate Adjustments” has the meaning set forth in Section 2.20.
ESG Pricing Provisions” has the meaning set forth in Section 2.20.
EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
EURIBOR” has the meaning specified in clause (a) of the definition of “Alternative Currency Term Rate”.
Euro” and “EUR” mean the single currency of the Participating Member States.
Event of Default” has the meaning specified in Section 8.01.
Excluded Equity Interest” means (a) margin stock, (b) Equity Interests of any Person other than any Borrower or any wholly owned Material Subsidiary that is a Restricted Subsidiary directly owned by a Domestic Credit Party, (c) Equity Interests of any Material Subsidiary that is a wholly owned Foreign Subsidiary or Foreign Subsidiary Holding Company directly owned by a Domestic Credit Party in excess of 65% of such Material Subsidiary’s issued and outstanding Equity Interests and (d) any Equity Interest to the extent the pledge thereof would be prohibited by such Person’s Organization Documents or joint venture documents on the Closing Date (or, with respect to any Subsidiary acquired by a Borrower or a Restricted Subsidiary after the Closing Date, so long as such prohibition or restriction was not incurred in contemplation of such Acquisition, on the date such Subsidiary is so acquired) (excluding any prohibition or restriction that is ineffective under the Uniform Commercial Code).
Excluded Property” means, with respect to any Credit Party, (a) (x) any fee owned real property and (y) any real property leasehold rights and interests (it being understood there shall be no requirement
CHAR1\1981890v5


to obtain any landlord or other third party waivers, estoppels or collateral access letters) or any fixtures affixed to any real property to the extent a security interest in such fixtures may not be perfected by a Uniform Commercial Code financing statement in the jurisdiction of organization of the applicable Credit Party; (b) motor vehicles, aircraft and other assets subject to certificates of title; (c) commercial tort claims; (d) letter of credit rights (other than to the extent consisting of supporting obligations that can be perfected solely by the filing of a Uniform Commercial Code financing statement (it being understood that no actions shall be required to perfect a security interest in letter of credit rights other than filing of a Uniform Commercial Code financing statement)); (e) any governmental licenses or state or local franchises, charters and authorizations, to the extent a security interest in any such license, franchise, charter or authorization is prohibited or restricted thereby (excluding any prohibition or restriction that is ineffective under the Uniform Commercial Code); (f) assets to the extent the pledge thereof or grant of security interests therein (i) is prohibited or restricted by applicable Law, rule or regulation, (ii) would cause the destruction, invalidation or abandonment of such asset under applicable Law, rule or regulation, or (iii) requires any consent, approval, license or other authorization of any third party or Governmental Authority (excluding any prohibition or restriction that is ineffective under the Uniform Commercial Code); (g) Excluded Equity Interests; (h) any lease, license or agreement, or any property subject to a purchase money security interest, capital lease obligation or similar arrangement, in each case to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money or similar arrangement or create a right of termination in favor of any other party thereto (other than any Credit Party or Restricted Subsidiary) or otherwise require consent thereunder (other than from any Credit Party or Restricted Subsidiary) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition; (i) any assets to the extent a security interest in such assets would result in material adverse Tax consequences as reasonably determined by the Company in consultation with the Administrative Agent; (j) any intent-to-use trademark application prior to the filing, and acceptance by the U.S. Patent and Trademark Office, of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal law; (k) assets where the cost of obtaining a security interest therein is excessive in relation to the practical benefit to the Lenders afforded thereby as reasonably determined between the Company and the Administrative Agent; and (l) any acquired property (including property acquired through the acquisition or merger of another entity) if at the time of such acquisition the granting of a security interest therein or the pledge thereof is prohibited by any contract or other agreement (in each case, not created in contemplation thereof) to the extent and for so long as such contract or other agreement prohibits such security interest or pledge (excluding any prohibition or restriction that is ineffective under the Uniform Commercial Code).
Excluded Securitization Transaction” means any financing transaction or series of related financing transactions (including a Supply Chain Financing Transaction, a receivables facility or receivables factoring, discounting or other similar program) providing for the discounted sale of receivables of the Company or any Restricted Subsidiary that is both off-balance sheet and non-recourse to the Company or any Restricted Subsidiary.
Excluded Subsidiary” means (a) any Subsidiary that is not a wholly-owned Subsidiary, (b) any Foreign Subsidiary, (c) any Domestic Subsidiary (i) that is a direct or indirect subsidiary of a CFC or (ii) that is a Foreign Subsidiary Holding Company, (d) any Subsidiary that is prohibited or restricted by applicable Law, accounting policies or by contractual obligation existing on the Closing Date (or, with respect to any Subsidiary acquired by a Borrower or a Restricted Subsidiary after the Closing Date (and so long as such contractual obligation was not incurred in contemplation of such acquisition, on the date such Subsidiary is so acquired) from providing a Guaranty, or if such Guaranty would require governmental (including regulatory) or third party consent, approval, license or authorization, unless such consent, approval, license or authorization has been received, (e) any special purpose securitization vehicle (or similar entity, including any Receivables Subsidiary), (f) any captive insurance subsidiary, (g) any not for profit Subsidiary, (h) any Immaterial Subsidiary, (i) each Unrestricted Subsidiary, (j) any Subsidiary with respect to which the Guaranty would result in material adverse Tax consequences as reasonably determined by the Company in consultation with the Administrative Agent and (k) any other Subsidiary with respect to which the Administrative Agent and the Company reasonably agree that the
CHAR1\1981890v5


burden or cost of providing the Guaranty shall outweigh the benefits to be obtained by the Lenders therefrom.
Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Credit Party of, or the grant under a Loan Document by such Credit Party of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Credit Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 11.08 and any and all guarantees of such Credit Party’s Swap Obligations by other Credit Parties) at the time the Guaranty of such Credit Party, or grant by such Credit Party of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap Agreement, such exclusion shall apply to only the portion of such Swap Obligation that is attributable to Swap Agreements for which such Guaranty or security interest is or becomes illegal.
Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii), 3.01(a)(iii) or 3.01(c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
Existing Credit Agreement” means that certain Credit Agreement dated as of March 29, 2011 by and among the Company, the lenders party thereto and Bank of America, as administrative agent.
Existing Letters of Credit” means the standby letters of credit existing as of the Closing Date and described on Schedule 1.01.
Extended Revolving Commitment” means any Revolving Commitments the maturity of which shall have been extended pursuant to Section 2.18.
Extended Revolving Loans” means any Loans made pursuant to the Extended Revolving Commitments.
Extended Term Loans” means any Term Loans the maturity of which shall have been extended pursuant to Section 2.18.
Extension” has the meaning specified in Section 2.19(a).
Extension Offer” has the meaning specified in Section 2.19(a).
FATCA” means Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements entered into in connection with the foregoing.
CHAR1\1981890v5


Federal Funds Effective Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided, that, if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
Fee Letter” means the letter agreement, dated June 17, 2021, among the Company and BofA Securities.
Foreign Borrower” means each Borrower that is a Foreign Subsidiary.
Foreign Borrower Sublimit” means an amount equal to the greater of (a) the lesser of the Aggregate Revolving A Commitments and $300,000,000 and (b) 50% of the Aggregate Revolving A Commitments. The Foreign Borrower Sublimit is part of, and not in addition to, the Aggregate Revolving A Commitments.
Foreign Lender” means a Lender that is not a U.S. Person.
Foreign Pension Plan” means any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States of America by the Company or any one or more of its Restricted Subsidiaries primarily for the benefit of employees of the Company or any of its Restricted Subsidiaries residing outside the United States of America, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.
Foreign Receivables Facilities Financing Costs” means, for any period, as to any Foreign Subsidiary party to a Foreign Receivables Facility, the total consolidated interest expense of such Foreign Subsidiary which would have existed for such period pursuant to such Foreign Receivables Facility if same were structured as a secured lending arrangement rather than as a receivables facility or factoring program for the sale of receivables and related assets, in each case assuming an imputed interest rate commensurate with amounts being charged pursuant to the Foreign Receivables Facility (whether as fees, by way of a discount on a receivable sold or otherwise).
Foreign Receivables Facility” means a receivables facility or receivables factoring, discounting or other similar program entered into by a Foreign Subsidiary providing for the discounted sale of receivables of such Foreign Subsidiary (it being understood that no Supply Chain Financing Transaction shall constitute a Foreign Receivables Facility).
Foreign Receivables Indebtedness” means indebtedness of one or more Foreign Subsidiaries deemed to exist pursuant to a Foreign Receivables Facility, determined as if such Foreign Receivables Facility was structured as a secured financing transaction as opposed to an asset purchase and sale transaction.
Foreign Subsidiary” means any Restricted Subsidiary other than a Domestic Subsidiary.
Foreign Subsidiary Holding Company” means, as of any time of determination, a Restricted Subsidiary substantially all of the assets of which consist of, directly or indirectly, Equity Interests in or Equity Interests in and Indebtedness of one or more CFCs.
Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving A Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving A Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such
CHAR1\1981890v5


Defaulting Lender’s participation obligation has been reallocated to other Revolving A Lenders in accordance with the terms hereof.
Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
Funding Indemnity Letter” means a letter by and among the Company and the Administrative Agent, on behalf of the Lenders, entered into on or prior to the date that is three Business Days prior to the Closing Date pursuant to which the Company agrees to compensate the Lenders for certain losses, costs or expenses incurred by such Lender as a result of any failure for any reason to make the Borrowings on the date set forth therein, in the form agreed to by the parties thereto.
GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
Governmental Authority” means the government of the United States, Canada, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including, without limitation, the Financial Conduct Authority, the Prudential Regulation Authority and any supra-national bodies such as the European Union or the European Central Bank).
Guarantee” means, as to any Person any obligation of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds (x) for the purchase or payment of any such primary obligation or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (d) otherwise to assure or hold harmless the owner of such primary obligation against loss in respect thereof; provided, however, that the term Guarantee shall not include endorsements of instruments for deposit or collection or standard contractual indemnities entered into, in each case in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
Guarantors” means the collective reference to (a) each wholly-owned Material Domestic Subsidiary of the Company identified as a “Guarantor” on the signature pages to the Second Amendment, (b) each wholly-owned Material Domestic Subsidiary and each additional Restricted Subsidiary that executes and delivers to the Administrative Agent a Guaranty Supplement pursuant to Section 6.10, (c) with respect to (i) Obligations of the Designated Borrowers, (ii) Obligations under any Secured Swap Agreement, (iii) Obligations under any Secured Cash Management Agreement and (iv) any Swap Obligation of a Specified Credit Party (determined before giving effect to Sections 11.01 and 11.08) under the Guaranty, each Domestic Borrower and (d) with respect to the Obligations of the Foreign Borrowers, each Foreign Borrower.
Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative Agent and the other holders of the Obligations pursuant to Article XI.
CHAR1\1981890v5


Guaranty Supplement” means each supplement substantially in the form of Exhibit E executed and delivered by a Restricted Subsidiary pursuant to Section 6.10.
Hazardous Materials” means (a) any petrochemical or petroleum products, radioactive materials, asbestos in any form that is friable, urea formaldehyde foam insulation, polychlorinated biphenyls, and radon gas; and (b) any chemicals, materials or substances defined under any Environmental Law as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “restricted hazardous materials,” “extremely hazardous wastes,” “restrictive hazardous wastes,” “toxic substances” or “toxic pollutants”.
Honor Date” has the meaning set forth in Section 2.03(c).
IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements delivered under or referred to herein.
Immaterial Asset Sale” means any Disposition (for such purpose, treating any series of related Dispositions as a single such transaction) that generates Net Cash Proceeds of less than $5,000,000; provided, that the aggregate amount of all Immaterial Asset Sales in any fiscal year of the Company shall not exceed $25,000,000.
Immaterial Subsidiary” means a Subsidiary that is not a Material Subsidiary.
Incremental Amount” means, as of any date of determination, the sum of (a) the total of (i) the greater of (A) $350,000,000 and (B) 100% of Consolidated EBITDA for the most recent four fiscal quarter period ended prior to such date of determination for which financial statements have been delivered pursuant to Section 6.01(a) or 6.01(b), as applicable, plus (ii) the aggregate principal amount of voluntary prepayments of the Initial Term Loan, the Initial Term A-2 Loan, Incremental Terms Loans (to the extent such Incremental Term Loans were incurred in reliance on clause (a)(i) above) and Revolving Loans (to the extent such prepayment of Revolving Loans is accompanied by a permanent reduction of the applicable Aggregate Revolving Commitments) made prior to such date, except to the extent such prepayments were funded with the proceeds of long-term Indebtedness, minus (iii) the aggregate amount of increases in the Aggregate Revolving A Commitments and Aggregate Revolving B Commitments, and/or institution of any Incremental Term Loans incurred in reliance on clause (a)(i) above prior to such date pursuant to Section 2.18, plus (b) an unlimited additional amount so long as the Maximum Leverage Ratio Requirement at such time is satisfied at the time of incurrence of the applicable Revolving Commitments or Term Loans minus, (c) the aggregate amount of any Incremental Equivalent Debt incurred prior to such date.
Incremental Equivalent Debt” has the meaning set forth in Section 7.04(y).
Incremental Term Lender” means, with respect to any Incremental Term Loan, each of the Persons identified as an “Incremental Term Lender” in the Incremental Term Loan Lender Joinder Agreement relating to such Incremental Term Loan, together with their respective successors and assigns.
Incremental Term Loan” has the meaning specified in Section 2.01(f).
Incremental Term Loan Commitment” means, as to each Incremental Term Lender, with respect to any Incremental Term Loan, its obligation to make its portion of such Incremental Term Loan hereunder pursuant to the Incremental Term Loan Lender Joinder Agreement relating to such Incremental Term Loan; provided, that at any time after the funding of such Incremental Term Loan, the determination of “Required Lenders” shall include the Outstanding Amount of all Incremental Term Loans.
Incremental Term Loan Lender Joinder Agreement” means a joinder agreement, substantially in the form of Exhibit J, executed and delivered in accordance with the provisions of Section 2.18(c).
CHAR1\1981890v5


Incremental Term Loan Maturity Date” with respect to any Incremental Term Loan, shall be as set forth in the Incremental Term Loan Lender Joinder Agreement for such Incremental Term Loan.
Incremental Term Note” has the meaning specified in Section 2.11(a).
Indebtedness” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) the deferred purchase price of assets or services payable to the sellers thereof or any of such seller’s assignees which in accordance with GAAP would be shown on the liability side of the balance sheet of such Person but excluding deferred rent and trade payables not overdue by more than 60 days, both as determined in accordance with GAAP, (c) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder, (d) all Indebtedness of a second Person secured by any Lien on any property owned by such first Person, whether or not such Indebtedness has been assumed, (e) all Capitalized Lease Obligations of such Person, (f) all obligations of such Person to pay a specified purchase price for goods or services whether or not delivered or accepted, i.e., take-or-pay and similar obligations, (g) all obligations under any Swap Agreement, (h) all Guarantees of such Person with respect to the types of Indebtedness specified in clauses (a) through (g) and (i) through (j) hereof, (i) all Foreign Receivables Indebtedness and all Receivables Indebtedness, (j) all Synthetic Lease Obligations and (k) all Disqualified Preferred Stock issued by such Person, valued, as of the date of determination, at the greater of (i) the maximum aggregate amount that would be payable upon maturity, redemption, repayment or repurchase thereof (or of Disqualified Preferred Stock or Indebtedness into which such Disqualified Preferred Stock is convertible or exchangeable) and (ii) the maximum liquidation preference of such Disqualified Preferred Stock; provided that Indebtedness shall not include trade payables and accrued expenses, in each case arising in the ordinary course of business and, in the case of trade payables, not overdue by more than 60 days. The amount of any obligation under any Swap Agreement on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. For the avoidance of doubt, Excluded Securitization Transactions shall not constitute “Indebtedness”.
Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
Indemnitee” has the meaning specified in Section 10.04(b).
Information” has the meaning specified in Section 10.07.
Initial Term A-2 Lender” means any Lender that holds a portion of the Initial Term A-2 Loan at such time.
Initial Term A-2 Loan” has the meaning specified in Section 2.01(d).
Initial Term A-2 Loan Commitment” means, as to each Initial Term A-2 Lender, its obligation to make its portion of the Initial Term A-2 Loan to the Canadian Borrower pursuant to Section 2.01(d), in the principal amount set forth opposite such Initial Term A-2 Lender’s name on Schedule 2.01. The aggregate principal amount of the Initial Term A-2 Loan Commitments of all of the Initial Term A-2 Lenders as in effect on the Second Amendment Effective Date is ONE HUNDRED SIX MILLION FOUR HUNDRED FORTY THOUSAND CANADIAN DOLLARS (C$106,440,000).
Initial Term A-2 Note” has the meaning specified in Section 2.11(a).
Initial Term Lender” means any Lender that holds a portion of the Initial Term Loan at such time.
Initial Term Loan” has the meaning specified in Section 2.01(c).
CHAR1\1981890v5


Initial Term Loan Commitment” means, as to each Initial Term Lender, its obligation to make its portion of the Initial Term Loan to the Company pursuant to Section 2.01(c), in the principal amount set forth opposite such Initial Term Lender’s name on Schedule 2.01. The aggregate principal amount of the Initial Term Loan Commitments of all of the Initial Term Lenders as in effect on the Second Amendment Effective Date is ONE HUNDRED THIRTY MILLION DOLLARS ($130,000,000).
Initial Term Note” has the meaning specified in Section 2.11(a).
Interest Payment Date” means, (a) as to any LIBOR Rate Loan, any Term SOFR Loan, or any Alternative Currency Term Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a LIBOR Rate Loan, a Term SOFR Loan, or an Alternative Currency Term Rate Loan, as applicable, exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; (b) as to any Alternative Currency Daily Rate Loan, the last Business Day of each calendar month and the Maturity Date; and (c) as to any Base Rate Loan (including a Swing Line Loan) or any Canadian Prime Rate Loan, the last Business Day of each March, June, September and December, and the Maturity Date.
Interest Period” means, as to each LIBOR Rate Loan, each Term SOFR Loan, and each Alternative Currency Term Rate Loan, the period commencing on the date such Loan is disbursed or converted to or continued as a LIBOR Rate Loan, a Term SOFR Loan, or an Alternative Currency Term Rate Loan, as applicable, and ending on (x) solely with respect to LIBOR Rate Loans or Alternative Currency Term Rate Loans, the date one, three or six months (or, solely with respect to Alternative Currency Term Rate Loans denominated in Canadian Dollars, one or three months) thereafter (in each case, subject to availability for the interest rate applicable to the relevant currency), as selected by the applicable Borrower in its Loan Notice, (y) solely with respect to Term SOFR Loans, the date one or three months thereafter (in each case, subject to availability), as selected by the applicable Borrower in its Loan Notice, or (z) such other period that is twelve months or less requested by the applicable Borrower and consented to by all the Lenders required to fund or maintain a portion of such Loan; provided that:
(a)    any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b)    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 the calendar month at the end of such Interest Period; and
(c)    no Interest Period shall extend beyond the Maturity Date.
Investment” has the meaning set forth in Section 7.05.
IRB Sale-Leaseback Transaction” means any arrangement of the Company or any of its wholly-owned Domestic Subsidiaries that are Restricted Subsidiaries with any industrial revenue authority in the United States which provides for (a) the sale of real property or personal property by the Company or such Restricted Subsidiary (other than any such real property or personal property owned on the Closing Date) to such authority, (b) the leaseback of such real property or personal property by the Company or such Restricted Subsidiary from such authority, and (c) the subsequent purchase by the Company or such Restricted Subsidiary of tax-exempt industrial revenue bonds (or similar instruments) issued by such authority.
IRS” means the United States Internal Revenue Service.
ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
CHAR1\1981890v5


Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Company (or any Restricted Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of Credit.
Joint Venture” means any Person, other than an individual or a wholly-owned Subsidiary of the Company, (a) in which the Company or a Restricted Subsidiary of the Company holds or acquires an ownership interest (whether by way of capital stock, partnership or limited liability company interest, or other evidence of ownership) and (b) which is engaged in a Permitted Business.
Junior Debt” means Refinancing Junior Loans, any Shareholder Subordinated Notes, any other contractually subordinated junior lien Indebtedness and any Indebtedness of the Company or any Restricted Subsidiary that is by its terms subordinated or required to be subordinated in right of payment to any of the Obligations.
KPIs” has the meaning set forth in Section 2.20.
L/C Advance” means, with respect to each Revolving A Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C Advances shall be denominated in Dollars.
L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing of Revolving A Loans. All L/C Borrowings shall be denominated in Dollars.
L/C Commitment” means, with respect to the L/C Issuer, the commitment of the L/C Issuer to issue Letters of Credit hereunder. The initial amount of the L/C Commitment is set forth on Schedule 2.01. The L/C Commitment may be modified from time to time by written agreement between the L/C Issuer and the Company (with a copy of such agreement provided to the Administrative Agent).
L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
L/C Issuer” means Bank of America, through itself or one of its designated Affiliates or branches, in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
L/C Obligations” means, as at any date of determination, the sum of (a) the aggregate amount available to be drawn under all outstanding Letters of Credit plus (b) the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
Latest Maturity Date” means the latest of (a) the Maturity Date for the Revolving A Loans, (b) the Maturity Date for the Revolving B Loans, (c) the Maturity Date for the Initial Term Loan, (d) the Maturity Date for the Initial Term A-2 Loan, (e) the Maturity Date for the Term A-3 Loan, (f) any Incremental Term Loan Maturity Date and (g) the maturity date for any Specified Refinancing Term Loan, Extended Revolving Commitment or Extended Term Loan, in each case, as of any date of determination.
Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
CHAR1\1981890v5


LCT Test Date” has the meaning set forth in Section 1.02(d).
Lender” means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that becomes a “Lender” in accordance with this Agreement and their successors and assigns and, as the context requires, includes the Swing Line Lender.
Lender Party” means each of the Lenders, the Swing Line Lender and the L/C Issuer.
Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Company and the Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.
Letter of Credit” means any letter of credit issued hereunder and shall include the Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby letter of credit. Letters of Credit may be issued in Dollars or in an Alternative Currency.
Letter of Credit Application” means an application and agreement for the issuance or amendment of a letter of credit in the form from time to time in use by the L/C Issuer.
Letter of Credit Expiration Date” means the day that is five days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
Letter of Credit Fee” has the meaning specified in Section 2.03(h).
Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate Revolving A Commitments and (b) $125,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving A Commitments.
LIBOR” has the meaning specified in the definition of “LIBOR Rate”.
LIBOR Rate” means:
(a)    for any Interest Period with respect to any Credit Extension denominated in Dollars, the rate per annum equal to the London Interbank Offered Rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for such currency for a period equal in length to such Interest Period) (“LIBOR”), as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 11:00 a.m. (London time) on the Rate Determination Date, for deposits in the Dollars, with a term equivalent to such Interest Period; and
(b)    for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior to such date for Dollar deposits with a term of one month commencing that day;
provided, that, if the LIBOR Rate shall be less than zero percent (0%), such rate shall be deemed zero percent (0%) for purposes of this Agreement.
LIBOR Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of “LIBOR Rate”. LIBOR Rate Loans shall be denominated in Dollars.
Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any
CHAR1\1981890v5


financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.
Limited Conditionality Transaction” means (a) a Permitted Acquisition or other Investment, the consummation of which is not conditioned on the availability of, or on obtaining, third party financing or (b) any Debt Repurchase requiring irrevocable notice in advance thereof.
Loan” means an extension of credit by a Lender to a Borrower under Article II in the form of a Revolving Loan, a Term Loan or a Swing Line Loan.
Loan Documents” means this Agreement, the Notes, the Fee Letter, any Guaranty Supplements, the Collateral Documents, each Issuer Document, each Incremental Term Loan Lender Joinder Agreement, each Borrower Request and Assumption Agreement, each ESG Amendment, and all other documents and agreements contemplated hereby and executed by the Company or any Restricted Subsidiary in favor of the Administrative Agent or any Lender (but specifically excluding Secured Swap Agreements and any Secured Cash Management Agreements).
Loan Notice” means a notice of (a) a Borrowing of Loans, (b) a conversion of Loans from one Type to another Type, or (c) a continuation of LIBOR Rate Loans, Term SOFR Loans, or Alternative Currency Term Rate Loans, in each case pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A-1 or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent) appropriately completed and signed by an Authorized Officer of the applicable Borrower.
Market Intercreditor Agreement” means an intercreditor agreement the terms of which are consistent with market terms governing security arrangements for the sharing of Liens, subordination arrangements and/or arrangements relating to the distribution of payments, as applicable, at the time the intercreditor agreement is proposed to be established in light of the type of Indebtedness subject thereto.
Master Agreement” means any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, together with any related schedules.
Material Adverse Effect” means (a) a material adverse effect on the business, properties, assets, operations, liabilities or financial condition of the Company and its Restricted Subsidiaries taken as a whole or (b) a material adverse effect (i) on the rights or remedies of the Lenders or the Administrative Agent hereunder or under any other Loan Document or (ii) on the ability of any Credit Party to perform its obligations to the Lenders or the Administrative Agent hereunder or under any other Loan Document, taking into account in the case of either of clauses (a) or (b) above (in each such case to the extent relevant) insurance, indemnities, rights of contribution and/or similar rights and claims available and applicable to any determination pursuant to this definition so long as consideration is given to the nature and quality of, and likelihood of recovery under, such insurance, indemnities, rights of contribution and/or similar rights and claims.
Material Domestic Subsidiary” means each Domestic Subsidiary that is a Material Subsidiary.
Material Subsidiary” means each Restricted Subsidiary that, as of the last day of the most recent fiscal quarter, for the period of twelve months then ended, for which financial statements have been delivered, or are required to have been delivered, pursuant to Section 6.01, (a) contributed more than twelve and one half percent (12.5%) of the Company and its Restricted Subsidiaries’ consolidated revenues for such period or (b) contributed more than twelve and one half percent (12.5%) of the Consolidated Total Assets of the Company and its Restricted Subsidiaries for such period; provided that if a Person becomes a Restricted Subsidiary pursuant to or in connection with an Acquisition, then such initial determination shall be made as of the date such Acquisition is consummated, based on the financial statements of such Person for its most recent quarter end (for the period of twelve months then ended) for which financial statements are available (which may be unaudited).
CHAR1\1981890v5


Maturity Date” means September 30, 2026; provided, however, that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
Maximum Leverage Ratio Requirement” means, with respect to any request pursuant to Section 2.18 or in respect of any Incremental Equivalent Debt, the requirement that the Company shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that immediately after giving pro forma effect to the applicable increase in the Aggregate Revolving A Commitments and Aggregate Revolving B Commitments and/or institution of an Incremental Term Loan and the use of proceeds therefrom (and any related Acquisitions, other Investments or other transactions in connection therewith), the Consolidated Secured Net Leverage Ratio does not exceed 2.50 to 1.00 (it being understood that any increase and/or institution may be incurred prior to any increase and/or institution in reliance on clause (a) of the definition of “Incremental Amount”, and, in the case of a simultaneous incurrence and/or advance of the maximum amount permitted to be incurred under clause (a) of the definition of “Incremental Amount”, the Company shall not be required to give pro forma effect to any such increase and/or institution in reliance on clause (a) of the definition of “Incremental Amount”); provided, that, for the purpose of calculating the Consolidated Secured Net Leverage Ratio pursuant to this definition, such increase of the Aggregate Revolving A Commitments and the Aggregate Revolving B Commitments, as applicable, shall be deemed to be fully drawn.
Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 103% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.14(a)(i), (a)(ii) or (a)(iii), an amount equal to 103% of the Outstanding Amount of all L/C Obligations, and (c) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.
Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by the Company or any Restricted Subsidiary in respect of any Disposition, Recovery Event or Debt Issuance net of (a) fees, expenses and costs incurred in connection therewith (including, without limitation, legal, accounting and investment banking fees and sales commissions), (b) Taxes paid or payable as a result thereof and (c) in the case of any Disposition or any Recovery Event, the amount necessary to retire any Indebtedness secured by a Lien permitted hereunder (ranking senior to any Lien of the Administrative Agent) on the related property; it being understood that “Net Cash Proceeds” shall include any cash or Cash Equivalents received upon the Disposition of any non-cash consideration received by the Company or any Restricted Subsidiary in any Disposition or Recovery Event.
Non-Consenting Lender” means (a) any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 10.01 and (ii) has been approved by the Required Lenders and (b) any Lender that does not approve of the addition of an Applicant Borrower that has been approved by the Revolving A Lenders, Revolving B Lenders and/or Incremental Term Lenders, as applicable, holding in the aggregate more than 50% of the relevant class of Commitments (it being understood that the unfunded Commitments of any Defaulting Lender shall be excluded from such determination).
Non-Credit Party” means a Restricted Subsidiary that is not a Credit Party.
Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
CHAR1\1981890v5


Note” or “Notes” means the Revolving Notes, the Initial Term Notes, the Initial Term A-2 Notes, the Term A-3 Notes, the Incremental Term Notes and/or the Swing Line Loan Notes, individually or collectively, as appropriate.
Obligations” means, collectively, all unpaid principal of and accrued and unpaid interest on all Loans or Letters of Credit, accrued and unpaid fees, and expenses, reimbursements, indemnities and other obligations of any Credit Party to the Lenders or to any Lender, the L/C Issuer, the Administrative Agent or any Indemnitee hereunder arising under this Agreement or any other Loan Document, all amounts payable by any Credit Party or any Restricted Subsidiary under any Secured Swap Agreement or Secured Cash Management Agreement, and including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided, however, that the “Obligations” of a Credit Party shall exclude any Excluded Swap Obligations with respect to such Credit Party.
OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
Other Rate Early Opt-in” means the Administrative Agent and the Borrowers have elected to replace LIBOR with a Benchmark Replacement other than a SOFR-based rate pursuant to (a) an Early Opt-in Election, (b) Section 3.03(b)(ii), and (c) clause (b) of the definition of “Benchmark Replacement”.
Other Hedging Agreements” means any foreign exchange contracts, currency swap agreements or other similar agreements or arrangements designed to protect against fluctuations in currency values.
Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).
Outstanding Amount” means (a) with respect to any Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of any Loans occurring on such date; and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the outstanding amount of such L/C Obligations after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Company of Unreimbursed Amounts.
Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Effective Rate and (ii) an overnight rate determined by the Administrative
CHAR1\1981890v5


Agent, the L/C Issuer, or the Swing Line Lender, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, an overnight rate determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, in accordance with banking industry rules on interbank compensation.
Participant” has the meaning specified in Section 10.06(d).
Participant Register” has the meaning specified in Section 10.06(d).
Participating Member State” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
Permitted Acquisition” means an Investment consisting of an Acquisition by any Credit Party or any Restricted Subsidiary; provided that (a) no Default shall have occurred and be continuing or would result from such Acquisition (subject, in the case of a Limited Conditionality Transaction, to Section 1.02(d)), (b) the property acquired (or the property of the Person acquired) in such Acquisition shall be a Permitted Business, (c) in the case of an Acquisition of the Equity Interests of another Person, the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition, (d) the Company shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that immediately after giving pro forma effect to the Acquisition, the Credit Parties would be in compliance with the financial covenants set forth in Section 7.08 and 7.09 recomputed as of the end of the period of twelve months most recently ended for which the Company has delivered financial statements pursuant to Section 6.01(a) or (b) and (e) if such transaction involves the purchase of an interest in a partnership between any Credit Party as a general partner and entities unaffiliated with the Company as the other partners, such transaction shall be effected by having such equity interest acquired by a corporate holding company directly or indirectly wholly owned by such Credit Party newly formed for the sole purpose of effecting such transaction. Notwithstanding anything to the contrary contained in the immediately preceding sentence, an acquisition which does not otherwise meet the requirements set forth above in the definition of “Permitted Acquisition” shall constitute a Permitted Acquisition if, and to the extent, the Required Lenders agree in writing that such acquisition shall constitute a Permitted Acquisition for purposes of this Agreement.
Permitted Business” means the manufacture, distribution, installation and servicing of batteries and reasonably related products and technologies, and activities reasonably related to the foregoing.
Permitted Encumbrances” mean (i) as to any particular real property at any time, such easements, encroachments, covenants, rights of way, minor defects, irregularities or encumbrances on title which could not reasonably be expected to materially impair such real property for the purpose for which it is held by the mortgagor thereof and which do not secure any Indebtedness, (ii) zoning and other municipal ordinances which are not violated in any material respect by the existing improvements and the present use made by the mortgagor thereof of the premises and (iii) general real estate taxes and assessments not yet delinquent.
Permitted Liens” shall have the meaning provided in Section 7.03.
Permitted Refinancing” means, with respect to any Person, any modification, refinancing, replacement, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, replaced, refunded, renewed or extended, except by an amount equal to unpaid accrued interest, fees, expenses and premium thereon and by an amount equal to any existing commitments unutilized thereunder, (b) such modification, refinancing, replacement, refunding, renewal or extension has a final stated maturity date equal to or later than the final stated maturity date of, and has a weighted average life to maturity equal to or greater than the weighted average life to maturity of, the Indebtedness being modified, refinanced, replaced, refunded,
CHAR1\1981890v5


renewed or extended, (c) at the time thereof, no Event of Default shall have occurred and be continuing or would result therefrom, (d) such modification, refinancing, replacement, refunding, renewal or extension does not add guarantors, obligors or security from that which applied to such Indebtedness being modified, refinanced, replaced, refunded, renewed or extended, (e) to the extent such Indebtedness being modified, refinanced, replaced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, replacement, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended and (f) to the extent such Indebtedness being modified, refinanced, replaced, refunded, renewed or extended is secured by Liens that are subordinated to the Liens securing the Obligations, such modification, refinancing, replacement, refunding, renewal or extension is unsecured or secured by Liens that are subordinated to the Liens securing the Obligations on terms at least as favorable to the Lenders as those contained in the documentation (including any intercreditor or similar agreements) governing the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended.
Permitted Refinancing Debt Documents” means the documentation governing any Permitted Refinancing Indebtedness.
Permitted Refinancing Indebtedness” means any Indebtedness modified, refinanced, replaced, refunded, renewed or extended pursuant to, and in accordance with the requirements of, a Permitted Refinancing.
Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Company or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
Platform” has the meaning specified in Section 6.01.
Preferred Stock,” as applied to the capital stock of any Person, means capital stock of such Person (other than common stock of such Person) of any class or classes (however designated) that ranks prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to shares of capital stock of any other class of such Person, and shall include any Qualified Preferred Stock and any preferred stock which is not Qualified Preferred Stock.
Pro Forma Basis” means, in connection with any calculation of compliance with any financial covenant or financial term, the calculation thereof after giving effect on a pro forma basis to (x) the incurrence of any Indebtedness (other than revolving Indebtedness, except to the extent same is incurred to refinance other outstanding Indebtedness or to finance a Specified Transaction) after the first day of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b), as the case may be, as if such Indebtedness had been incurred (and the proceeds thereof applied) on the first day of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b), as the case may be, (y) the permanent repayment of any Indebtedness (other than revolving Indebtedness, except to the extent accompanied by a corresponding permanent commitment reduction) after the first day of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b), as the case may be, as if such Indebtedness had been retired or repaid on the first day of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b), as the case may be, and (z) any Acquisition or any Significant Asset Sale then being consummated as well as any other Acquisition or any other Significant Asset Sale if consummated after the first day of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b), as the case may be, and on or prior to the
CHAR1\1981890v5


date of the respective Acquisition or Significant Asset Sale, as the case may be, then being effected, with the following rules to apply in connection therewith:
(a)    all Indebtedness (i) (other than revolving Indebtedness, except to the extent same is incurred to refinance other outstanding Indebtedness or to finance a Specified Transaction) incurred or issued after the first day of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b) (whether incurred to finance an Acquisition, to refinance Indebtedness or otherwise) shall be deemed to have been incurred or issued (and the proceeds thereof applied) on the first day of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b), as the case may be, and remain outstanding through the date of determination and (y) (other than revolving Indebtedness, except to the extent accompanied by a corresponding permanent commitment reduction) permanently retired or redeemed after the first day of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b), as the case may be, shall be deemed to have been retired or redeemed on the first day of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b), as the case may be, and remain retired through the date of determination;
(b)    all Indebtedness assumed to be outstanding pursuant to preceding clause (a) shall be deemed to have borne interest at (i) the rate applicable thereto, in the case of fixed rate indebtedness, or (ii) the rates which would have been applicable thereto during the respective period when same was deemed outstanding, in the case of floating rate Indebtedness (although interest expense with respect to any Indebtedness for periods while same was actually outstanding during the respective period shall be calculated using the actual rates applicable thereto while same was actually outstanding); provided that all Indebtedness (whether actually outstanding or deemed outstanding) bearing interest at a floating rate of interest shall be tested on the basis of the rates applicable at the time the determination is made pursuant to said provisions; and
(c)    in making any determination of Consolidated EBITDA on a Pro Forma Basis, pro forma effect shall be given to any Acquisition or any Significant Asset Sale if effected during such period as if same had occurred on the first day of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b), as the case may be, taking into account, in the case of any Acquisition, factually supportable and identifiable cost savings and expenses which would otherwise be accounted for as an adjustment pursuant to Article 11 of Regulation S-X under the Securities Act of 1933, as if such cost savings or expenses were realized on the first day of the respective period.
PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
Public Lender” has the meaning specified in Section 6.01.
QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
QFC Credit Support” has the meaning set forth in Section 10.21.
Qualified Acquisition” means (a) an Acquisition permitted hereunder for which the aggregate cash and non-cash consideration (including assumed Indebtedness, the good faith estimate by the Company of the maximum amount of any deferred purchase price obligations (including any earn out payments) and Equity Interests) exceeds $250,000,000, or (b) a series of related Acquisitions in any twelve (12) month period, for which the aggregate cash and non-cash consideration (including assumed Indebtedness, the good faith estimate by the Company of the maximum amount of any deferred purchase price obligations (including any earn out payments) and Equity Interests) for all such Acquisitions
CHAR1\1981890v5


exceeds $250,000,000; provided, that, for any Acquisition or series of Acquisitions to qualify as a “Qualified Acquisition”, the Administrative Agent shall have received, prior to the consummation of such Acquisition or the last in a series of related Acquisitions, a Qualified Acquisition Election Certificate with respect to such Acquisition or series of Acquisitions.
Qualified Acquisition Election Certificate” means a certificate of an Authorized Officer of the Company, in form and substance reasonably satisfactory to the Administrative Agent, (a) certifying that the applicable Acquisition or series of related Acquisitions meet the criteria set forth in clauses (a) or (b) (as applicable) of the definition of “Qualified Acquisition”, and (b) notifying the Administrative Agent that the Company has elected to treat such Acquisition or series of related Acquisitions as a “Qualified Acquisition”.
Qualified ECP Guarantor” means, at any time, each Credit Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
Qualified Preferred Stock” means any preferred stock of the Company so long as the terms of any such preferred stock (a) do not contain any mandatory put, redemption, repayment, sinking fund or other similar provision requiring payment prior to one year after the Latest Maturity Date (as determined at the time of issuance of such Qualified Preferred Stock) other than to the extent such provision is triggered as a result of a change of control or asset sale, so long as the rights of the holders thereof upon the occurrence of such change of control or asset sale event are subject to the prior payment in full of all Obligations, the cancellation of all Letters of Credit and termination of the Commitments, (b) do not require the cash payment of dividends at a time when such payment would be prohibited or not permitted under this Agreement, (c) do not grant the holders thereof any voting rights except for (i) voting rights required to be granted to such holders under applicable law and (ii) limited customary voting rights on fundamental matters such as mergers, consolidations, sales of all or substantially all of the assets of the Company, or liquidations involving the Company, and (d) are otherwise reasonably satisfactory to the Administrative Agent.
Rate Determination Date” means two (2) Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent; provided, that, to the extent such market practice is not administratively feasible for the Administrative Agent, then “Rate Determination Date” means such other day as otherwise reasonably determined by the Administrative Agent).
“RBSL” has the meaning specified in Section 3.03(b).
Receivables Facilities Financing Costs” means, for any period, as to the Company or any Restricted Subsidiary party to a Receivables Facility, the total consolidated interest expense of the Company or such Restricted Subsidiary, as applicable, which would have existed for such period pursuant to such Receivables Facility if same were structured as a secured lending arrangement rather than as a receivables facility or factoring program for the sale of receivables and related assets, in each case assuming an imputed interest rate commensurate with amounts being charged pursuant to the Receivables Facility (whether as fees, by way of a discount on a receivable sold or otherwise).
Receivables Facility” means a receivables facility or receivables factoring, discounting or other similar program entered into by the Company or a Restricted Subsidiary providing for the discounted sale of receivables and related assets of the Company or such Restricted Subsidiary, as applicable, to either (a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary that sells or grants a security interest in such receivables and related assets to a Person that is not a Restricted Subsidiary (it being understood that no Foreign Receivables Facility and no Supply Chain Financing Transaction shall constitute a Receivables Facility).
Receivables Indebtedness” means indebtedness of the Company or one or more Restricted Subsidiaries deemed to exist pursuant to a Receivables Facility, determined as if such Receivables
CHAR1\1981890v5


Facility was structured as a secured financing transaction as opposed to an asset purchase and sale transaction.
Receivables Subsidiary” means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities or Foreign Receivables Facilities and that engages only in activities reasonably related or incidental thereto.
Recipient” means the Administrative Agent, the L/C Issuer, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Credit Party hereunder.
Recovery Event” means the receipt by the Company or any of its Restricted Subsidiaries of any insurance or condemnation proceeds in excess of $5,000,000 for any one Recovery Event and $25,000,000 for all Recovery Events occurring in any fiscal year of the Company (other than proceeds from business interruption insurance) payable (i) by reason of theft, physical destruction or damage or any other similar event with respect to any properties or assets of the Company or any of its Restricted Subsidiaries, (ii) by reason of any condemnation, taking, seizing or similar event with respect to any properties or assets of the Company or any of its Restricted Subsidiaries and (iii) under any policy of insurance required to be maintained under Section 6.03.
Refinancing Amendment” means an amendment to this Agreement, in form and substance reasonably satisfactory to the Borrowers, the Administrative Agent and the Lenders providing Specified Refinancing Term Loans, effecting the incurrence of such Specified Refinancing Term Loans in accordance with Section 2.17.
Refinancing Junior Loans” means loans under credit or loan agreements that are (a) senior or subordinated and unsecured or (b) secured by the Collateral of the Credit Parties on a junior basis to the credit facilities under this Agreement, incurred in respect of a refinancing of outstanding Term Loans; provided that, (i) no Event of Default shall have occurred and be continuing at the time such Refinancing Junior Loans are incurred; (ii) if such Refinancing Junior Loans shall be secured by a security interest in the Collateral and/or subordinated in right of payment to the Obligations, then such Refinancing Junior Loans shall be issued subject to a Market Intercreditor Agreement that is reasonably satisfactory to the Administrative Agent and the Company; (iii) no Refinancing Junior Loans shall mature prior to the final maturity date of the Term Loan(s) being refinanced, or have a weighted average life to maturity that is less than the weighted average life to maturity of the Term Loan(s) being refinanced thereby, or be subject to any mandatory redemption or prepayment provisions or rights (except related to customary asset sale, similar events and change of control offers) that would result in mandatory prepayment of such Refinancing Junior Loans prior to the Term Loans being refinanced or replaced; provided that this clause (iii) shall not apply to any bridge facility on customary terms if the long-term indebtedness that such bridge facility is to be converted into satisfies the maturity, prepayment and amortization restrictions in such clauses; (iv) the borrower of the Refinancing Junior Loans shall be the Borrower with respect to the Term Loan(s) being refinanced; (v) such Refinancing Junior Loans shall subject to clause (iii) above have pricing (including interest, fees and premiums), optional prepayment and redemption terms as may be agreed to by the Company and the lenders party thereto; (vi) the other terms and conditions (excluding those referenced in clauses (iii) and (v) above) of such Refinancing Junior Loans shall either (x) be substantially identical to, or (taken as a whole) no more favorable to the lenders providing such Refinancing Junior Loans than those applicable to the Term Loans being refinanced or replaced (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the relevant Term Loans existing at the time of such refinancing or replacement or that are added for the benefit of the Administrative Agent and the Lenders under the then-existing Term Loans) or (y) reflective of market terms and conditions at the time of incurrence or issuance thereof, in each case, as determined in good faith by the Company (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the relevant Term Loans existing at the time of such refinancing or replacement or that are added for the benefit of the Administrative Agent and the Lenders under the then-existing Term Loans); (vii) the Refinancing Junior Loans may not have guarantors, obligors or security in any case more extensive than that which applied to the applicable Loans being so refinanced; (viii) the aggregate principal amount of the Refinancing Junior Loans shall be in a principal or commitment amount not greater than the aggregate principal amount of the Term Loan(s) being refinanced plus any fees (including original issue discount and upfront fees), premiums and accrued interest associated therewith and costs
CHAR1\1981890v5


and expenses related thereto; and (ix) the Net Cash Proceeds of such Refinancing Junior Loans shall be applied, substantially concurrently with the incurrence thereof, to the pro rata prepayment of outstanding Loans under the applicable class of Loans being so refinanced in accordance with Section 2.05(b).
Refinancing Notes” means one or more series of (a) senior unsecured notes or (b) senior secured notes secured by the Collateral of the Credit Parties (x) on an equal and ratable basis with the credit facilities under this Agreement or (y) on a junior basis to the credit facilities under this Agreement (to the extent then secured by such Collateral) in each case issued in respect of a refinancing of outstanding Indebtedness of Borrowers under the Term Loans; provided that, (i) no Event of Default shall have occurred and be continuing at the time such Refinancing Notes are incurred; (ii) if such Refinancing Notes shall be secured by a security interest in the Collateral, then such Refinancing Notes shall be issued subject to a Market Intercreditor Agreement that is reasonably satisfactory to the Administrative Agent and the Company; (iii) no Refinancing Notes shall mature prior to the date that is after the final maturity date of, or have a weighted average life to maturity that is less than the weighted average life to maturity of, in each case, the Term Loans being refinanced and no Refinancing Notes shall be subject to any amortization prior to the final maturity thereof, or be subject to any mandatory redemption or prepayment provisions or rights (except related to customary asset sale, similar events and change of control offers) that would result in mandatory prepayment of such Refinancing Notes prior to the Term Loans being refinanced or replaced; (iv) such Refinancing Notes shall have pricing (including interest, fees and premiums), optional prepayment and redemption terms as may be agreed to by the Company and the lenders party thereto; (v) the other terms and conditions (excluding those referenced in clauses (iii) and (iv) above) of such Refinancing Notes shall be either (x) substantially identical to, or (taken as a whole) no more favorable to the lenders providing such Refinancing Notes than those applicable to the Term Loans being refinanced or replaced (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the relevant Term Loans existing at the time of such refinancing or replacement or that are added for the benefit of the Administrative Agent and the Lenders under the then-existing Term Loans) or (y) reflective of market terms and conditions at the time of incurrence or issuance thereof, in each case, as determined in good faith by the Company (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the relevant Term Loans existing at the time of such refinancing or replacement or that are added for the benefit of the Administrative Agent and the Lenders under the then-existing Term Loans); (vi) the Refinancing Notes shall not have security in any case more extensive than that which applied to the applicable Term Loan(s) being so refinanced and shall not have obligors or contingent obligors that were not obligors or contingent obligors (or that would not have been required to become obligors or contingent obligors) in respect of the Term Loan(s) being refinanced; (vii) the aggregate principal amount of the Refinancing Notes shall be in a principal or commitment amount not greater than the aggregate principal amount of the Term Loan(s) being refinanced plus any fees (including original issue discount and upfront fees), premiums and accrued interest associated therewith and costs and expenses related thereto; and (viii) the Net Cash Proceeds of such Refinancing Notes shall be applied, substantially concurrently with the incurrence thereof, to the pro rata prepayment of outstanding Term Loans under the applicable class of Term Loans being so refinanced in accordance with Section 2.05(b).
Register” has the meaning specified in Section 10.06(c).
Registered Equivalent Notes” means, with respect to any notes originally issued in an offering pursuant to Rule 144A under the Securities Act or other private placement transactions under the Securities Act of 1933, substantially identical notes (having the same guarantees) issued in a dollar-for-dollar or euro-for-euro exchange, as applicable, therefor pursuant to an exchange offer registered with the SEC.
Related Indemnified Parties” of an Indemnitee means (a) any controlling Person or controlled Affiliate of such Indemnitee, (b) the respective directors, officers or employees of such Indemnitee or any of its controlling Persons or controlled Affiliates, and (c) the respective agents or representatives of such Indemnitee, in the case of this clause (c), acting on behalf of, or at the instructions of, such Indemnitee.
Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
CHAR1\1981890v5


Relevant Canadian Governmental Body” means (a) with respect to Loans denominated in Dollars, the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto, (b) with respect to Loans denominated in Sterling, the Bank of EnglandCanada, or a committee officially endorsed or convened by the Bank of EnglandCanada, or, in each case, any successor thereto, (c) with respect to Loans denominated in Euros, the European Central Bank, or a committee officially endorsed or convened by the European Central Bank or, in each case, any successor thereto, and (d) with respect to Loans denominated in any other Agreed Currency, (i) the central bank for the currency in which such Loan is denominated or any central bank or other supervisor which is responsible for supervising either (A) such Successor Rate or (B) the administrator of such Successor Rate or (ii) any working group or committee officially endorsed or convened by (A) the central bank for the currency in which such Successor Rate is denominated, (B) any central bank or other supervisor that is responsible for supervising either (1) such Successor Rate or (2) the administrator of such Successor Rate, (C) a group of those central banks or other supervisors or (D) the Financial Stability Board or any part thereof..
Release Date” has the meaning specified in Section 6.10(f)(i).
Relevant Rate” means with respect to any Credit Extension denominated in (a) Dollars, LIBOR, (b) Sterling, SONIA, (cor any Alternative Currency Successor Rate established in connection therewith) and (b) Euros, EURIBOR, and (d) Canadian Dollars, the CDOR Rate (or any Alternative Currency Successor Rate established in connection therewith), as applicable.
Removal Effective Date” has the meaning specified in Section 9.06(b).
Reportable Event” means an event described in Section 4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA other than those events as to which the 30-day notice period is waived under PBGC Regulation Section 4043.
Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Loans (other than Swing Line Loans), a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
Required Lenders” means, as of any date of determination, Lenders holding in the aggregate more than 50% of (a) the unfunded Revolving Commitments, the Term A-3 Loan Commitments, the outstanding Loans, L/C Obligations and participations in outstanding Swing Line Loans and L/C Obligations or (b) if the Revolving Commitments have been terminated, the Term A-3 Loan Commitments, the outstanding Loans, L/C Obligations and participations in outstanding Swing Line Loans and L/C Obligations. The unfunded Revolving Commitments and the Term A-3 Loan Commitments of, and the outstanding Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders; provided that the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or L/C Issuer, as the case may be, in making such determination.
Rescindable Amount” has the meaning specified in Section 2.12(b)(ii).
Resignation Effective Date” has the meaning specified in Section 9.06(a).
Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
Restricted” means, when referring to cash or Cash Equivalents of the Company or any of its Restricted Subsidiaries, that such cash or Cash Equivalents (i) appear (or would be required to appear) as “restricted” on a consolidated balance sheet of the Company or of any such Restricted Subsidiary (unless such appearance is related to the Loan Documents or Liens created thereunder), (ii) are subject to any
CHAR1\1981890v5


Lien in favor of any Person (other than the Administrative Agent for the benefit of the Lenders) or (iii) are not otherwise generally available for use by the Company or such Restricted Subsidiary.
Restricted Subsidiaries” means each Subsidiary that is not an Unrestricted Subsidiary.
Revaluation Date” means (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of an Alternative Currency Loan, (ii) each date of a continuation of an Alternative Currency Term Rate Loan pursuant to Section 2.02, and (iii) such additional dates as the Administrative Agent shall reasonably determine or the Required Lenders shall reasonably require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the L/C Issuer under any Letter of Credit denominated in an Alternative Currency, and (iv) such additional dates as the Administrative Agent or the L/C Issuer shall reasonably determine or the Required Lenders shall reasonably require.
Revolving A Commitment” means, as to each Revolving A Lender, its obligation to (a) make Revolving A Loans to the Borrowers pursuant to Section 2.01(a), (b) purchase participations in L/C Obligations and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Revolving A Lender’s name on Schedule 2.01, in the Assignment and Assumption pursuant to which such Revolving A Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.18, as applicable, as such amount may be increased or decreased from time to time in accordance with this Agreement.
Revolving A Exposure” means the aggregate Outstanding Amount of the Revolving A Loans of any Revolving A Lender, plus such Revolving A Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations plus such Revolving A Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans.
Revolving A Lender” means, at any time, (a) so long as any Revolving A Commitment is in effect, any Lender that has a Revolving A Commitment at such time or (b) if the Revolving A Commitments have terminated or expired, any Lender that has a Revolving A Loan or a participation in L/C Obligations or Swing Line Loans at such time.
Revolving A Loan” has the meaning specified in Section 2.01(a).
Revolving B Commitment” means, as to each Revolving B Lender, its obligation to make Revolving B Loans to the Borrowers pursuant to Section 2.01(b), in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Revolving B Lender’s name on Schedule 2.01, in the Assignment and Assumption pursuant to which such Revolving B Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.18, as applicable, as such amount may be increased or decreased from time to time in accordance with this Agreement.
Revolving B Exposure” means the aggregate Outstanding Amount of the Revolving B Loans of any Revolving B Lender.
Revolving B Lender” means, at any time, (a) so long as any Revolving B Commitment is in effect, any Lender that has a Revolving B Commitment at such time or (b) if the Revolving B Commitments have terminated or expired, any Lender that has a Revolving B Loan at such time.
Revolving B Loan” has the meaning specified in Section 2.01(b).
Revolving Commitment” means a Revolving A Commitment and/or a Revolving B Commitment, as applicable.
Revolving Lender” means any Revolving A Lender and any Revolving B Lender.
CHAR1\1981890v5


Revolving Loan” means a Revolving A Loan and/or a Revolving B Loan, as applicable.
Revolving Note” has the meaning specified in Section 2.11(a).
S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and any successor thereto.
Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately available funds and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be reasonably determined by the Administrative Agent or the L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.
Sanction(s)” means any sanctions administered or enforced by the government of the United States of America (including without limitation, OFAC), the United Nations Security Council, the European Union, or Her Majesty’s Treasury (“HMT”).
Scheduled Unavailability Date” has the meaning specified in Section 3.03(c)(ii).
SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
Second Amendment” means that certain Second Amendment to Credit Agreement, dated as of the Second Amendment Effective Date, among the Company, the Canadian Borrower, the Guarantors party thereto, the Lenders party thereto, the L/C Issuer, the Swing Line Lender and the Administrative Agent.
Second Amendment Effective Date” means July 15, 2021.
Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Credit Party or any of its Restricted Subsidiaries and any Cash Management Bank with respect to such Cash Management Agreement.
Secured Party Designation Notice” means a notice from any Swap Provider substantially in the form of Exhibit I.
Secured Swap Agreement” means any Swap Agreement that is entered into by and between a Credit Party or any of its Restricted Subsidiaries and a Swap Provider. For the avoidance of doubt, a holder of Obligations in respect of Secured Swap Agreements shall be subject to the last paragraph of Section 8.02 and Section 9.11.
Security Agreement” means the security and pledge agreement, dated as of the Closing Date, executed in favor of the Administrative Agent for the benefit of the holders of the Obligations by each of the Credit Parties.
Shareholder Subordinated Note” means an unsecured junior subordinated note issued by the Company (and not guaranteed or supported in any way by any Restricted Subsidiary of the Company), which note shall be in the form of Exhibit L; provided that additional provisions may be included so long as such provisions do not adversely affect the interests of the Lenders in a material manner and are not in conflict with the provisions of this Agreement or any other Loan Document and are otherwise reasonably acceptable to the Administrative Agent.
Shareholders’ Rights Plan” means a plan approved by the board of directors of the Company providing for the distribution to shareholders of the Company of rights to purchase Preferred Stock of the Company (which Preferred Stock need not be Qualified Preferred Stock) on such terms and conditions as are customary for similar plans adopted by publicly-held companies of comparable size to the Company.
CHAR1\1981890v5


Significant Asset Sale” means each Disposition which generates Net Cash Proceeds of at least $75,000,000.
SOFR” means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
SOFR Adjustment” means: (a) with respect to Daily Simple SOFR, 0.10% (10 basis points); and (b) with respect to Term SOFR, (i) 0.10% (10 basis points) for an Interest Period of one month’s duration and, (ii) 0.10% (10 basis points) for an Interest Period of three months’ duration, and (iii) for any other interest period agreed to by all requisite Lenders pursuant to the definition of “Interest Period”, such amount as is agreed to by all such Lenders for such interest period.
SOFR Early Opt-in” means the Administrative Agent and the Borrowers have elected to replace LIBOR pursuant to (a) an Early Opt-in Election, (b) Section 3.03(b)(i), and (c) clause (a) of the definition of “Benchmark Replacement”.
Solvency Certificate” means a certificate executed by the chief financial officer of the Company, substantially in the form of Exhibit K.
SONIA” means, with respect to any applicable determination date, the Sterling Overnight Index Average Reference Rate published on the fifth (5th) Business Day preceding such date on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time); provided, that, if such determination date is not a Business Day, SONIA means such rate that applied on the first (1st) Business Day immediately prior thereto.
SONIA Adjustment” means, with respect to SONIA, 0.0326% (3.26 basis points).
Special Notice Currency” means at any time an Alternative Currency, other than the currency of a country (a) that is a member of the Organization for Economic Cooperation and Development at such time and (b) is located in North America or Europe.
Specified Credit Party” means any Credit Party that is not an “eligible contract participant” under the Commodity Exchange Act.
Specified Event of Default” means an Event of Default pursuant to Section 8.01(a), Section 8.01(b) or Section 8.01(g).
Specified Refinancing Term Loans” has the meaning set forth in Section 2.17.
Specified Transaction” means any Permitted Acquisition, any other Investment in a Person, any Significant Asset Sale, any Dividend, any Debt Repurchase, any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary or any other event that by the terms of this Agreement requires compliance on a “Pro Forma Basis” with a test or covenant hereunder.
Sterling” and “£” mean the lawful currency of the United Kingdom.
Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent, or by the parent and one or more subsidiaries of the parent, and the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.
CHAR1\1981890v5


Successor Rate” has the meaning specified in Section 3.03(c).
Supply Chain Financing Transaction” means any financing transaction pursuant to which accounts receivables due from customers of the Company or any Restricted Subsidiary are sold or discounted in connection with customer supply chain financing agreements that is both off-balance sheet and non-recourse to the Company or any Restricted Subsidiary.
Supported QFC” has the meaning set forth in Section 10.21.
Sustainability Coordinator” means BofA Securities, in its capacity as the sustainability coordinator.
Sustainability Linked Loan Principles” means the Sustainability Linked Loan Principles (as published in May 2021 by the Loan Market Association, Asia Pacific Loan Market Association and Loan Syndications & Trading Association).
Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or the Restricted Subsidiaries shall be a Swap Agreement.
Swap Obligation” means with respect to any Credit Party any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
Swap Provider” means any Person that, at the time it enters into a Swap Agreement is a Lender or an Affiliate of a Lender, in its capacity as a party to such Swap Agreement.
Swap Termination Value” means, in respect of any one or more Swap Agreement, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Agreement, (a) for any date on or after the date such Swap Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Agreements (which may include a Lender or any Affiliate of a Lender).
Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
Swing Line Loan” has the meaning specified in Section 2.04(a).
Swing Line Loan Notice” means a notice of a Borrowing of Swing Line Loans pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit A-2 or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by an Authorized Officer of the Company.
Swing Line Note” has the meaning specified in Section 2.11(a).
Swing Line Sublimit” means an amount equal to the lesser of (a) $50,000,000 and (b) the Aggregate Revolving A Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving A Commitments.
CHAR1\1981890v5


Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
Tax Allocation Agreements” means any tax sharing or tax allocation agreements entered into by the Company or any of its Subsidiaries.
Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Term A-3 Lender” means any Lender that holds a Term A-3 Loan Commitment and/or portion of the Term A-3 Loan at such time.
Term A-3 Loan” means the Incremental Term Loan established pursuant to the Third Amendment.
Term A-3 Loan Availability Period” means, with respect to the Term A-3 Loan Commitments, the period from and including the Third Amendment Effective Date to the earliest of (a) March 15, 2023, (b) the date of termination of all Term A-3 Loan Commitments in their entirety pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender to make its portion of the Term A-3 Loan pursuant to Section 8.01.
Term A-3 Loan Commitment” means, as to each Term A-3 Lender, its obligation to make its portion of the Term A-3 Loan to the Company pursuant to Section 2.01(e), in an aggregate principal amount set forth opposite such Term A-3 Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Term A-3 Lender becomes a party hereto, as applicable. The aggregate principal amount of the Term A-3 Loan Commitments of all of the Term A-3 Lenders as in effect on the Third Amendment Effective Date is THREE HUNDRED MILLION DOLLARS ($300,000,000).
Term A-3 Loan Ticking Fee” has the meaning specified in Section 2.09(b).
Term A-3 Note” has the meaning specified in Section 2.11(a).
“Term CORRA” means, for the applicable corresponding tenor, the forward-looking term rate based on CORRA that has been selected or recommended by the Relevant Canadian Governmental Body, and that is published by an authorized benchmark administrator and is displayed on a screen or other information service, as identified or selected by the Administrative Agent in its reasonable discretion at approximately a time and as of a date prior to the commencement of an Interest Period determined by the Administrative Agent in its reasonable discretion in a manner substantially consistent with market practice.
“Term CORRA Notice” means the notification by the Administrative Agent to the Lenders and the Borrowers of the occurrence of a Term CORRA Transition Event.
CHAR1\1981890v5


“Term CORRA Transition Date” means, in the case of a Term CORRA Transition Event, the date that is set forth in the Term CORRA Notice provided to the Lenders and the Borrowers, for the replacement of the then-current Canadian Benchmark with the Canadian Benchmark Replacement described in clause (a)(i) of such definition, which date shall be at least thirty (30) Business Days from the date of the Term CORRA Notice.
“Term CORRA Transition Event” means the determination by the Administrative Agent that (a) Term CORRA has been recommended for use by the Relevant Canadian Governmental Body, and is determinable for any Available Tenor, (b) the administration of Term CORRA is administratively feasible for the Administrative Agent, (c) a Canadian Benchmark Replacement, other than Term CORRA, has replaced the CDOR Rate in accordance with Section 3.03(b), and (d) the Borrowers have provided a written request to Administrative Agent to transition to Term CORRA.
Term Lender” means any Lender that holds a portion of the Initial Term Loan, a portion of the Initial Term A-2 Loan, a portion of the Term A-3 Loan or the Term A-3 Loan Commitment, a portion of any Incremental Term Loans, a portion of any Extended Term Loan or a portion of any Specified Refinancing Term Loan at such time.
Term Loan” means the Initial Term Loan, the Initial Term A-2 Loan, the Term A-3 Loan, an Incremental Term Loan, an Extended Term Loan or a Specified Refinancing Term Loan.
Term Loan Commitment” means, as to each Term Lender, such Term Lender’s obligation to make its portion of any Term Loan to the applicable Borrower.
Term SOFR” means:
, (a) (a)    with respect to a Benchmark Replacement for purposes of Section 3.03(b), for the applicable corresponding tenor (or if any Available Tenor of a Benchmark does not correspond to an Available Tenor for the applicable Benchmark Replacement, the closest corresponding Available Tenor and if such Available Tenor corresponds equally to two (2) Available Tenors of the applicable Benchmark Replacement, the corresponding tenor of the shorter duration shall be applied), the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body; and
(b)    with respect to the Term A-3 Loan, (i) for any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two (2) U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided, that, if the rate is not published prior to 11:00 a.m. on such determination date, then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto; in each case, plus the applicable SOFR Adjustment; and (iib) for any interest calculation with respect to a Base Rate Loan that is a Term A-3 Loan on any date, the rate per annum equal to the Term SOFR Screen Rate with a term of one (1) month commencing that day; provided, that, if Term SOFR determined in accordance with either of the foregoing clause (ia) or clause (iib) would otherwise be less than zero, Term SOFR shall be deemed zero for purposes of this Agreement.
Term SOFR Conforming Changes” means, with respect to the use, administration of or any conventions associated with SOFR or any proposed Term SOFR Successor Rate or Term SOFR, as applicable, any conforming changes to the definitions of “Base Rate”, “SOFR”, “Term SOFR” and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent determines (in
CHAR1\1981890v5


consultation with the Company) is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
Term SOFR Loan” means any portion of the Term A-3a Loan that is denominated in Dollars and that bears interest at a rate based on clause (b)(ia) of the definition of “Term SOFR”.
Term SOFR Replacement Date” has the meaning specified in Section 3.03(d).
Term SOFR Scheduled Unavailability Date” has the meaning specified in Section 3.03(d).
Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
Term SOFR Successor Rate” has the meaning specified in Section 3.03(d).
Third Amendment” means that certain Third Amendment to Credit Agreement, dated as of the Third Amendment Effective Date, among the Company, the Canadian Borrower, the Guarantors party thereto, the Lenders party thereto, and the Administrative Agent.
Third Amendment Effective Date” means September 8, 2022.
Total Revolving A Outstandings” means the aggregate Outstanding Amount of all Revolving A Loans, all Swing Line Loans and all L/C Obligations.
Total Revolving B Outstandings” means the aggregate Outstanding Amount of all Revolving B Loans.
Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving Loans, all Swing Line Loans and all L/C Obligations.
Transactions” means the execution, delivery and performance by the Borrowers of this Agreement, the borrowing of Loans and the use of the proceeds thereof.
Type” means, with respect to a Loan, its character as a Base Rate Loan, a Canadian Prime Rate Loan, a LIBOR Rate Loan, a Term SOFR Loan, an Alternative Currency Daily Rate Loan or an Alternative Currency Term Rate Loan.
UCC” means the Uniform Commercial Code as in effect from time to time in the state of New York; provided that, if by reason of any mandatory provisions of law, the perfection, the effect of perfection or non-perfection or priority of the security interest granted to the Administrative Agent pursuant to any Collateral Document in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the state of New York, then the term “UCC” shall mean the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
CHAR1\1981890v5


UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
Unfunded Current Liability” of any Plan means the amount, if any, by which the actuarial present value of the accumulated plan benefits under the Plan as of the close of its most recent plan year exceeds the fair market value of the assets allocable thereto, each determined in accordance with Statement of Financial Accounting Standards No. 87, based upon the actuarial assumptions used by the Plan’s actuary in the most recent annual valuation of the Plan.
United Kingdom” and “UK” mean the United Kingdom of Great Britain and Northern Ireland.
United States” and “U.S.” mean the United States of America.
Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).
Unrestricted Cash” means, as of any date of determination, subject to the limitations in Section 1.03(a), the aggregate amount (without duplication) of cash and Cash Equivalents that are not Restricted of the Credit Parties and the Foreign Subsidiaries to the extent the same would be reflected on a consolidated balance sheet of the Company if the same were prepared as of such date.
Unrestricted Subsidiaries” means each Subsidiary (other than a Borrower) designated by the Company as an “Unrestricted Subsidiary” pursuant to Section 6.14.
U.S. Government Securities Business Day” means any Business Day, except any Business Day on which any of the Securities Industry and Financial Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.
U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
U.S. Special Resolution Regimes” has the meaning set forth in Section 10.21.
U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(III).
Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.02    Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)    The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or
CHAR1\1981890v5


otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b)    In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(c)    Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(d)    Notwithstanding anything to the contrary herein, to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including any Consolidated Secured Net Leverage Ratio test, any Consolidated Total Net Leverage Ratio test, any Consolidated Interest Coverage Ratio test) or basket (including the amount of Consolidated Total Assets or the amount of Consolidated EBITDA), (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to the consummation of any Limited Conditionality Transaction or incurrence of Indebtedness in connection therewith, (iii) a determination of the amount of the Available Amount, the Available JV Basket Amount or any other basket based on Consolidated Total Assets or Consolidated EBITDA or (iv) a determination as to whether the representations and warranties contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects), the determination of whether the relevant condition is satisfied may be made, at the election of the Company, at the time of (on the basis of the financial statements for the most recently ended four quarter period for which financial statements have been delivered) the execution of the definitive agreement with respect to such Limited Conditionality Transaction (the “LCT Test Date”), after giving effect to the relevant Limited Conditionality Transaction and related incurrence of Indebtedness, on a Pro Forma Basis; provided that notwithstanding the foregoing, (A) the absence of Specified Event of Default shall be a condition to the consummation of any such Limited Conditionality Transaction and incurrence of any related Indebtedness, (B) if the proceeds of an Incremental Term Loan are to be used to finance a Limited Conditionality Transaction, then such financing may be subject to customary “SunGard” or “certain funds” conditionality and the representations and warranties required shall be limited to customary “Specified Representations” and such other representations and warranties as may be required by the applicable lenders providing such Incremental Term Loan and (C) the Limited Conditionality Transaction and the related Indebtedness to be incurred (and any associated Lien) and the use of proceeds thereof (and the consummation of any Acquisition or Investment) shall be deemed incurred and/or applied at the LCT Test Date (until such time as the Indebtedness is actually incurred or the applicable definitive agreement is terminated without actually consummating the applicable Limited Conditionality Transaction) and outstanding thereafter for purposes of pro forma compliance (other than with respect to Dividends or Debt Repurchases of Junior Debt) with any applicable calculation of the financial covenants set forth in Sections 7.08 and 7.09, or the amount or availability of the Available Amount, the Available JV Basket Amount or any other basket based on Consolidated EBITDA or Consolidated Total Assets, as the case may be (it being understood and agreed that with respect to
CHAR1\1981890v5


any such ratio test or basket to be used to effect a Dividend or Debt Repurchase of Junior Debt, the Company shall demonstrate compliance with the applicable test both after giving effect to the applicable Limited Conditionality Transaction and assuming that such transaction had not occurred). For the avoidance of doubt, if any of such ratios or amounts for which compliance was determined or tested as of the LCT Test Date are thereafter exceeded as a result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated EBITDA), at or prior to the consummation of the relevant Limited Conditionality Transaction, such ratios or amounts will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the relevant Limited Conditionality Transaction is permitted to be consummated or taken.
(e)    Any reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
(f)    Any baskets utilized under this Agreement prior to the Second Amendment Effective Date shall each be deemed replenished in their entirety and available in full under this Agreement as of the Second Amendment Effective Date.
1.03    Accounting Terms.
(a)    Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Credit Parties and their Restricted Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded. Notwithstanding anything contained herein to the contrary, with respect to determining the permissibility of the incurrence of any Indebtedness for borrowed money (including, for the avoidance of doubt, any incremental facility established pursuant to Section 2.18 and any Incremental Equivalent Debt) and the calculation of the financial covenants set forth in Sections 7.08 and 7.09 on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness, (i) the proceeds thereof shall not be counted as Unrestricted Cash for the purposes of clause (b) of the definition of Consolidated Debt and (ii) all Incremental Term Loans and Incremental Equivalent Debt (and, in each case, any Permitted Refinancings thereof) shall be deemed to constitute Consolidated Debt secured by a Lien on any property of the Company and its any Restricted Subsidiaries.
(b)    Changes in GAAP. If at any time any change in GAAP (including the adoption of IFRS) would affect the computation of any financial ratio, requirement or provision set forth in any Loan Document, and either the Company or the Required Lenders shall so request, the Administrative Agent and the Company shall negotiate in good faith to amend such ratio, requirement or provision to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders not to be unreasonably withheld, conditioned or delayed); provided that, until so amended, (i) such ratio, requirement or provision shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Administrative Agent financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
CHAR1\1981890v5


(c)    Consolidation of Variable Interest Entities. All references herein to consolidated financial statements of the Company and its Restricted Subsidiaries or to the determination of any amount for the Company and its Restricted Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Company is required to consolidate pursuant to FASB Interpretation No. 46 – Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a Restricted Subsidiary as defined herein.
1.04    Rounding.
Article IXAny financial ratios required to be maintained by the Company pursuant to this Agreement shall be calculated in accordance with this Agreement and, if necessary, by 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).
1.05    Exchange Rates; Currency Equivalents; Rates.
(a)    The Administrative Agent or the L/C Issuer, as applicable, shall determine the Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Alternative Currencies. Such Dollar Equivalent shall become effective as of such Revaluation Date and shall be the Dollar Equivalent of such amounts until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Credit Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the L/C Issuer, as applicable.
(b)    Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of an Alternative Currency Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing, Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, rounded upward to the nearest 1000 units), as reasonably determined by the Administrative Agent or the L/C Issuer, as the case may be.
(c)    The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to any reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternative or replacement for or successor to any such rate (including any Term SOFR Successor Rate, any Benchmark Replacement, or any Successor RateSuccessor Rate, or any Canadian Benchmark Replacement) (or any component of any of the foregoing) or the effect of any of the foregoing, or of any Term SOFR Conforming Changes, any Benchmark ReplacementAlternative Currency Conforming Changes, or any Alternative CurrencyCanadian Benchmark Replacement Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including any Term SOFR Successor Rate, any Benchmark Replacement, or any Successor RateSuccessor Rate, or any Canadian Benchmark Replacement) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to the Borrowers. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including any Term SOFR Successor Rate, any Benchmark Replacement, or any Successor RateSuccessor Rate, or any Canadian Benchmark Replacement) (or any component of any of the foregoing), in each case pursuant to the terms of this Agreement, and shall have no liability to any Borrower, any Lender or any other Person 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 other action or omission
CHAR1\1981890v5


related to or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service.
1.06    Additional Alternative Currencies.
(a)    The Company may from time to time request that Alternative Currency Loans be made under the Aggregate Revolving A Commitments and/or Letters of Credit be issued in a currency other than those specifically listed in the definition of “Alternative Currency”; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars. In the case of any such request with respect to the making of Alternative Currency Loans, such request shall be subject to the approval of the Administrative Agent and each Revolving A Lender; and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Administrative Agent and the L/C Issuer.
(b)    Any such request shall be made to the Administrative Agent not later than 11:00 a.m., 15 Business Days prior to the date of the desired Credit Extension (or such other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the L/C Issuer, in its or their sole discretion). In the case of any such request pertaining to Alternative Currency Loans, the Administrative Agent shall promptly notify each Revolving A Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the L/C Issuer thereof. Each Revolving A Lender (in the case of any such request pertaining to Alternative Currency Loans) or the L/C Issuer (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., seven Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Alternative Currency Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.
(c)    Any failure by a Revolving A Lender or the L/C Issuer, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Revolving A Lender or the L/C Issuer, as the case may be, to permit Alternative Currency Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the Revolving A Lenders consent to making Alternative Currency Loans in such requested currency and the Administrative Agent and such Revolving A Lenders reasonably determine that a an appropriate interest rate is available to be used for such requested currency, the Administrative Agent shall so notify the Company and (i) the Administrative Agent, such Revolving A Lenders and the Company may amend the definition of Alternative Currency Daily Rate or Alternative Currency Term Rate to the extent necessary to add the applicable rate for such currency and any applicable adjustment for such rate and (ii) to the extent the definition of Alternative Currency Daily Rate or Alternative Currency Term Rate, as applicable, has been amended to reflect the appropriate rate for such currency, such currency shall thereupon be deemed for all purposes to be an Alternative Currency for purposes of any Borrowings of Alternative Currency Loans. If the Administrative Agent and the L/C Issuer consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the Company and (A) the Administrative Agent, the L/C Issuer and the Company may amend the definition of Alternative Currency Daily Rate or Alternative Currency Term Rate, as applicable, to the extent necessary to add the applicable rate for such currency and any applicable adjustment for such rate and (B) to the extent the definition of Alternative Currency Daily Rate or Alternative Currency Term Rate, as applicable, has been amended to reflect the appropriate rate for such currency, such currency shall thereupon be deemed for all purposes to be an Alternative Currency for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.06, the Administrative Agent shall promptly so notify the Company.
1.07    Change of Currency.
(a)    Each obligation of the Borrowers to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful
CHAR1\1981890v5


currency after the Closing Date shall be redenominated into Euro at the time of such adoption. If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.
(b)    Each provision of this Agreement shall be subject to such reasonable changes of construction as agreed to by the Administrative Agent and the Company from time to time to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.
(c)    Each provision of this Agreement also shall be subject to such reasonable changes of construction as agreed to by the Administrative Agent and the Company from time to time to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.
1.08    Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
1.09    Letter of Credit Amounts.
Article XUnless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
1.10    Certain Determinations.
Article XIFor purposes of determining compliance with any of the covenants set forth in Article VI or Article VII (including in connection with any Incremental Term Loan or Incremental Equivalent Debt) at any time (whether at the time of incurrence or thereafter), any Lien, Investment, Indebtedness, Disposition, Dividend or Affiliate transaction meets the criteria of one, or more than one, of the categories permitted pursuant to Article VI or Article VII (including in connection with any Incremental Term Loan or Incremental Equivalent Debt), the Company (i) shall in its sole discretion determine under which category such Lien (other than Liens with respect to the Loans), Investment, Indebtedness (other than Indebtedness consisting of the Loans), Disposition, Dividend or Affiliate transaction (or, in each case, any portion there) is permitted and may classify or reclassify such transaction or item (or portion thereof) in any category and (ii) shall be permitted to make any such determination or redetermination or classification or reclassification at such time and from time to time as it may determine and without notice to the Administrative Agent or any Lender.
Article XIIFor purposes of determining the permissibility of any action, change, transaction or event that by the terms of the Loan Documents requires a calculation of any financial ratio or test (including the Consolidated Total Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Interest Coverage Ratio), such financial ratio or test shall, except as expressly permitted under this Agreement, be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
CHAR1\1981890v5


Article XIIIFor purposes of determining compliance with any provision of this Agreement which requires compliance on a pro forma basis with the financial covenant set forth in Section 7.09 prior to delivery of financial statements for the fiscal quarter of the Company ending October 2, 2022, such compliance shall be determined by reference to the financial statements delivered by the Company pursuant to Section 6.01(b) for the fiscal quarter of the Company ending July 3, 2022, and the Company shall be deemed to be in compliance on a pro forma basis for purposes of such determination so long as the Consolidated Total Net Leverage Ratio on a pro forma basis is not greater than 4.25 to 1.00.
ARTICLE II    
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01    Loans.
(a)    Subject to the terms and conditions set forth herein, each Revolving A Lender severally agrees to make loans (each such loan, a “Revolving A Loan”) to the Borrowers in Dollars and one or more Alternative Currencies from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving A Commitment; provided, however, that after giving effect to any Borrowing of Revolving A Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the aggregate Revolving A Exposure of any Lender shall not exceed such Lender’s Revolving A Commitment, (iii) the aggregate Outstanding Amount of all Revolving Loans made to Foreign Borrowers shall not exceed the Foreign Borrower Sublimit and (iv) the Total Revolving A Outstandings shall not exceed the Aggregate Revolving A Commitments. Within the limits of each Lender’s Revolving A Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Revolving A Loans may be Base Rate Loans, LIBOR RateTerm SOFR Loans, Alternative Currency Daily Rate Loans or Alternative Currency Term Rate Loans, or a combination thereof, as further provided herein.
(b)    Subject to the terms and conditions set forth herein, each Revolving B Lender severally agrees to make loans (each such loan, a “Revolving B Loan”) to the Borrowers in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving B Commitment; provided, however, that after giving effect to any Borrowing of Revolving B Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the aggregate Revolving B Exposure of any Lender shall not exceed such Lender’s Revolving B Commitment, (iii) the aggregate Outstanding Amount of all Revolving Loans made to Foreign Borrowers shall not exceed the Foreign Borrower Sublimit and (iv) the Total Revolving B Outstandings shall not exceed the Aggregate Revolving B Commitments. Within the limits of each Lender’s Revolving B Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Revolving B Loans may be Base Rate Loans or LIBOR RateTerm SOFR Loans, or a combination thereof, as further provided herein.
(c)    Subject to the terms and conditions set forth herein, each Lender severally agrees to make its portion of a term loan (the “Initial Term Loan”) to the Company in Dollars on the Second Amendment Effective Date in an amount not to exceed such Lender’s Initial Term Loan Commitment by (i) continuing some or all of its portion of the Initial Term Loan (as defined in this Agreement immediately prior to giving effect to the Second Amendment) outstanding immediately prior to the Second Amendment Effective Date, (ii) exchanging some or all of its portion of the Incremental Term A-1 Loan (as defined in the Incremental Term Loan and Increase Agreement (as defined in this Agreement immediately prior to giving effect to the Second Amendment)) outstanding immediately prior to the Second Amendment Effective Date, and/or (iii) advancing additional borrowings of the Initial Term Loan on the Second Amendment Effective Date. Amounts repaid on the Initial Term Loan may not be reborrowed. The Initial Term Loan may consist of Base Rate Loans or LIBOR RateTerm SOFR Loans, or a combination thereof, as further provided herein.
CHAR1\1981890v5


(d)    Subject to the terms and conditions set forth herein, each Lender severally agrees to make its portion of a term loan (the “Initial Term A-2 Loan”) to the Canadian Borrower in Canadian Dollars on the Second Amendment Effective Date in an amount not to exceed such Lender’s Initial Term A-2 Loan Commitment by (i) continuing some or all of its portion of the Incremental Term A-2 Loan (as defined in this Agreement immediately prior to giving effect to the Second Amendment) outstanding immediately prior to the Second Amendment Effective Date, and/or (ii) advancing additional borrowings of the Initial Term A-2 Loan on the Second Amendment Effective Date. Amounts repaid on the Initial Term A-2 Loan may not be reborrowed. The Initial Term A-2 Loan may consist of Canadian Prime Rate Loans and/or Alternative Currency Term Rate Loans in Canadian Dollars, or a combination thereof, as further provided herein.
(e)    Subject to the terms and conditions set forth herein, each Term A-3 Lender severally agrees to make its portion of the Term A-3 Loan to the Company in Dollars in one (1) advance on any Business Day during the Term A-3 Loan Availability Period in an aggregate amount not to exceed such Term A-3 Lender’s Term A-3 Loan Commitment. The Borrowing of the Term A-3 Loan shall consist of each portion of the Term A-3 Loan made simultaneously by the Term A-3 Lenders in accordance with their respective Term A-3 Loan Commitments. Amounts repaid on the Term A-3 Loan may not be reborrowed. The Term A-3 Loan may consist of Base Rate Loans or Term SOFR Loans, or a combination thereof, as further provided herein.
(f)    Subject to Section 2.18, on the effective date of any Incremental Term Loan Lender Joinder Agreement, each Incremental Term Lender party to such Incremental Term Loan Lender Joinder Agreement severally agrees to make its portion of a term loan (each, an “Incremental Term Loan”) in a single advance to the applicable Borrower in the amount of its respective Incremental Term Loan Commitment for such Incremental Term Loan as set forth in the applicable Incremental Term Loan Lender Joinder Agreement; provided, however, that after giving effect to such advances, the Outstanding Amount of such Incremental Term Loans shall not exceed the aggregate amount of the Incremental Term Loan Commitments set forth in the applicable Incremental Term Loan Lender Joinder Agreement of the applicable Incremental Term Lenders. Each Incremental Term Loan prepaid or repaid may not be reborrowed. Each Incremental Term Loan may be Base Rate Loans, Canadian Prime Rate Loans, LIBOR RateTerm SOFR Loans, Alternative Currency Daily Rate Loans or Alternative Currency Term Rate Loans, as further provided herein.
(g)    The Company shall use commercially reasonable efforts to the extent practicable to allocate Borrowings of Revolving Loans denominated in Dollars such that ratable percentages are outstanding on an approximate basis under the Revolving A Commitments and the Revolving B Commitments.
2.02    Borrowings, Conversions and Continuations.
(a)    Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of a LIBOR Rate Loan, a Term SOFR Loan, or an Alternative Currency Term Rate Loan shall be made upon the applicable Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone, or (B) a Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Administrative Agent of a Loan Notice. Each such Loan Notice must be received by the Administrative Agent not later than (i) 11:00 a.m. on the requested date of any Borrowings of Base Rate Loans or Canadian Prime Rate Loans, (ii) 1:00 p.m. three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of LIBOR Rate Loans, of any conversion of LIBOR Rate Loans to Base Rate Loans or of any conversion of Alternative Currency Loans denominated in Canadian Dollars to Canadian Prime Rate Loans, (iii) 1:00 p.m. two Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Term SOFR Loans or of any conversion of Term SOFR Loans to Base Rate Loans, and (iv) 11:00 a.m. four Business Days prior to the requested date of any Borrowing of Alternative Currency Loans or any continuation of Alternative Currency Term Rate Loans (or five Business Days in the case of a Special Notice Currency); provided, however, that if such Borrower wishes to request LIBOR Rate Loans, Term SOFR
CHAR1\1981890v5


Loans, or Alternative Currency Term Rate Loans having an Interest Period other than a duration provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than (i) 1:00 p.m. four Business Days prior to the requested date of such Borrowing, conversion or continuation of LIBOR Rate Loans or Term SOFR Loans, or (ii) 11:00 a.m. five Business Days (or six Business Days in the case of a Special Notice Currency) prior to the requested date of such Borrowing, conversion or continuation of Alternative Currency Term Rate Loans, in each case, whereupon the Administrative Agent shall give prompt notice to the applicable Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. In the case of a request pursuant to the proviso in the preceding sentence, not later than (i) 1:00 p.m. three Business Days before the requested date of such Borrowing, conversion or continuation of LIBOR Rate Loans or Term SOFR Loans, or (ii) 11:00 a.m. four Business Days (or five Business Days in the case of a Special Notice Currency) prior to the requested date of such Borrowing, conversion or continuation of Alternative Currency Term Rate Loans, in each case, the Administrative Agent shall notify such Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the applicable Lenders. Each Borrowing of, conversion to or continuation of LIBOR Rate Loans, Term SOFR Loans, or Alternative Currency Loans, as applicable, shall be in a principal amount of the Dollar Equivalent of $5,000,000 (or C$5,000,000, in the case of any Alternative Currency Loans denominated in Canadian Dollars) or a whole multiple of the Dollar Equivalent of $1,000,000 in excess thereof (or C$1,000,000, in the case of any Alternative Currency Loans denominated in Canadian Dollars) (or, if less, the entire principal thereof then outstanding); provided, that, in connection with a simultaneous Borrowing of, conversion to or continuation of LIBOR RateTerm SOFR Loans that are Revolving A Loans and Revolving B Loans, the foregoing minimum and multiple amounts shall apply to the principal amount such Revolving A Loans and such Revolving B Loans, taken a whole. Each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal thereof then outstanding); provided, that, in connection with a simultaneous Borrowing of or conversion to Base Rate Loans that are Revolving A Loans and Revolving B Loans, the foregoing minimum and multiple amounts shall apply to the principal amount such Revolving A Loans and such Revolving B Loans, taken a whole. Each Borrowing of or conversion to Canadian Prime Rate Loans shall be in a principal amount of C$500,000 or a whole multiple of C$100,000 in excess thereof (or, if less, the entire principal thereof then outstanding). Each Loan Notice shall specify (i) whether such Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of LIBOR Rate Loans, Term SOFR Loans, or Alternative Currency Term Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto, (vi) the currency of the Loans to be borrowed and (vii) whether the Loans to be borrowed are Revolving A Loans, Revolving B Loans, the Initial Term Loan, the Initial Term A-2 Loan, the Term A-3 Loan or an Incremental Term Loan. If the applicable Borrower fails to specify a Type of Loan in a Loan Notice or if such Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans (or, in the case of the Initial Term A-2 Loan, Canadian Prime Rate Loans); provided, however, that in the case of a failure to timely request a continuation of Alternative Currency Term Rate Loans, such Loans shall be continued as Alternative Currency Term Rate Loans in their original currency with an Interest Period of one month. Any such automatic conversion of Loans to Base Rate Loans or Canadian Prime Rate Loans, as applicable, shall be effective as of the last day of the Interest Period then in effect with respect to such Loans. If the applicable Borrower requests a Borrowing of, conversion to, or continuation of LIBOR Rate Loans, Term SOFR Loans, or Alternative Currency Term Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. No Loan may be converted into or continued as a Loan denominated in a different currency.
(b)    Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each applicable Lender of the amount (and currency) of its Applicable Percentage of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the
CHAR1\1981890v5


applicable Borrower, the Administrative Agent shall notify each applicable Lender of the details of any automatic conversion to Base Rate Loans or Canadian Prime Rate Loans, as applicable, or continuation of LIBOR Rate Loans, Term SOFR Loans, or Alternative Currency Term Rate Loans, in each case as described in the preceding subsection. In the case of a Borrowing, each applicable Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office for the applicable currency not later than (i) 1:00 p.m., in the case of any Loan denominated in Dollars, (ii) 1:00 p.m., in the case of any Canadian Prime Rate Loans, or (iii) the Applicable Time specified by the Administrative Agent in the case of any Loan denominated in an Alternative Currency, in each case on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of such Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by such Borrower; provided, however, that if, on the date of a Borrowing of Revolving A Loans, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings and second, shall be made available to such Borrower as provided above.
(c)    Except as otherwise provided herein, a LIBOR Rate Loan, a Term SOFR Loan or an Alternative Currency Term Rate Loan may be continued or converted only on the last day of an Interest Period for such Loan. During the existence of an Event of Default, at the request of the Required Lenders or the Administrative Agent, (i) no Loans may be requested as, converted to or continued as LIBOR Rate Loans or Term SOFR Loans and (ii) no Loans may be requested as, or converted to Alternative Currency Daily Rate Loans or converted to or continued as Alternative Currency Term Rate Loans. During the existence of an Event of Default and subject to the immediately preceding sentence, Alternative Currency Term Rate Loans may be maintained and at the end of the Interest Period with respect thereto shall automatically be continued as Alternative Currency Term Rate Loans with an Interest Period of one month.
(d)    The Administrative Agent shall promptly notify the applicable Borrower and the applicable Lenders of the interest rate applicable to any Interest Period for LIBOR Rate Loans, Term SOFR Loans, or Alternative Currency Term Rate Loans, as applicable, upon determination of such interest rate. At any time that Base Rate Loans or Canadian Prime Rate Loans are outstanding, the Administrative Agent shall notify the Company and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate or Canadian Prime Rate, as applicable, promptly following the public announcement of such change.
(e)    After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than fifteen Interest Periods in effect with respect to all Loans.
(f)    Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all of the portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Company, the Administrative Agent and such Lender.
2.03    Letters of Credit.
(a)    The Letter of Credit Commitment.
(i)    Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving A Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or one or more Alternative Currencies for the account of the
CHAR1\1981890v5


Company or any of its Restricted Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving A Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Restricted Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (v) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (w) the Total Revolving A Outstandings shall not exceed the Aggregate Revolving A Commitments, (x) the aggregate Revolving A Exposure of any Revolving A Lender shall not exceed such Lender’s Revolving A Commitment, (y) the aggregate amount of the outstanding Letters of Credit issued by the L/C Issuer shall not exceed the L/C Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Company or any Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company or such Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s and the applicable Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company or such Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii)    The L/C Issuer shall not issue any Letter of Credit if:
(A)    subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders under which such Letter of Credit is to be issued have approved such expiry date; or
(B)    the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving A Lenders have approved such expiry date.
(iii)    The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A)    any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;
(B)    the issuance of such Letter of Credit would violate one or more material policies of the L/C Issuer applicable to letters of credit generally applied on a consistent basis to similarly situated letter of credit applicants;
(C)    except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000;
CHAR1\1981890v5


(D)    such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(E)    except in the case of a Letter of Credit to be denominated in Dollars or an Alternative Currency, the L/C Issuer does not as of the issuance date of the requested Letter of Credit issue Letters of Credit in the requested currency; or
(F)    any Revolving A Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its reasonable discretion) with the applicable Borrowers or such Defaulting Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.15(b)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv)    The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v)    The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi)    The L/C Issuer shall act on behalf of the Revolving A Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
(b)    Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i)    Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the applicable Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by an Authorized Officer of such Borrower. Such Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the L/C Issuer, by personal delivery or by any other means acceptable to the L/C Issuer. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof (and in the absence of specification of currency shall be deemed to be a request for a Letter of Credit denominated in Dollars); (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be
CHAR1\1981890v5


presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally, the applicable Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.
(ii)    Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Revolving A Lender, the Administrative Agent or any Credit Party, at least two Business Days prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Company or the applicable Restricted Subsidiary or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving A Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Revolving A Lender’s Applicable Percentage times the amount of such Letter of Credit.
(iii)    If a Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer agrees to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the applicable Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving A Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date from the Administrative Agent, any Revolving A Lender or any Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each case directing the L/C Issuer not to permit such extension.
(iv)    Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the applicable Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
CHAR1\1981890v5


(c)    Drawings and Reimbursements; Funding of Participations.
(i)    Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the applicable Borrower and the Administrative Agent thereof. In the case of a Letter of Credit denominated in an Alternative Currency, the applicable Borrower shall reimburse the L/C Issuer in such Alternative Currency, unless (A) the L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the applicable Borrower shall have notified the L/C Issuer promptly following receipt of the notice of drawing that such Borrower will reimburse the L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency, the L/C Issuer shall notify the applicable Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. Not later than 11:00 a.m. (or the Applicable Time with respect to a Letter of Credit to be reimbursed in an Alternative Currency) on the Business Day following receipt of such notice (each such date, an “Honor Date”), the applicable Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency (together with interest thereon). In the event that (A) a drawing denominated in an Alternative Currency is to be reimbursed in Dollars pursuant to the second sentence in this Section 2.03(c)(i) and (B) the Dollar amount paid by the applicable Borrower, whether on the Honor Date (as a result of an error in calculating the Dollar amount to be paid by the applicable Borrower, but in any event, not as a result of any intraday fluctuation in a currency exchange rate) or after the Honor Date, shall not be adequate on the date of that payment to purchase in accordance with normal banking procedures a sum denominated in the Alternative Currency equal to the drawing, such Borrower agrees, as a separate and independent obligation, to indemnify the L/C Issuer for the loss resulting from its inability on that date to purchase the Alternative Currency in the full amount of the drawing. If the applicable Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving A Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency) (the “Unreimbursed Amount”), and the amount of such Revolving A Lender’s Applicable Percentage thereof. In such event, the Company shall be deemed to have requested a Borrowing of Base Rate Loans that are Revolving A Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 or the prior notice required therefor for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving A Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii)    Each Revolving A Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) to the Administrative Agent for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office for dollar-denominated payments in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving A Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Company in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars.
(iii)    With respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of Base Rate Loans that are Revolving A Loans because the conditions set
CHAR1\1981890v5


forth in Section 4.02 cannot be satisfied, the Company shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving A Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Revolving A Lender in satisfaction of its participation obligation under this Section 2.03.
(iv)    Until each Revolving A Lender funds its Revolving A Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the L/C Issuer.
(v)    Each Revolving A Lender’s obligation to make Revolving A Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, any Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving A Lender’s obligation to make Revolving A Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by a Borrower of a Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrowers to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi)    If any Revolving A Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), then, without limiting the other provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the Overnight Rate. A certificate of the L/C Issuer submitted to any Revolving A Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
(d)    Repayment of Participations.
(i)    At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving A Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from a Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as those received by the Administrative Agent.
(ii)    If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving A Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such
CHAR1\1981890v5


demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect. The obligations of the Revolving A Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e)    Obligations Absolute. The obligation of each Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i)    any lack of validity or enforceability of such Letter of Credit, this Agreement or any other Loan Document;
(ii)    the existence of any claim, counterclaim, setoff, defense or other right that any Borrower or any Restricted Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii)    any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv)    waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s protection and not the protection of any Borrower or any waiver by the L/C Issuer which does not in fact materially prejudice any Borrower;
(v)    honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;
(vi)    any payment made by the L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC, the ISP or the UCP, as applicable;
(vii)    any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;
(viii)    any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to any Borrower or any Restricted Subsidiary or in the relevant currency markets generally; or
(ix)    any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Borrower or any Restricted Subsidiary.
Article XIVThe applicable Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with such Borrower’s instructions or other irregularity, such Borrower will immediately notify the L/C Issuer. The
CHAR1\1981890v5


applicable Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f)    Role of L/C Issuer. Each Revolving A Lender and each Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Revolving A Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving A Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence, bad faith or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. Each Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude such Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (ix) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, a Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to such Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by such Borrower which such Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit unless the L/C Issuer is prevented or prohibited from so paying as a result of any order or directive of any court or other Governmental Authority. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary and reasonably acceptable to the beneficiary.
(g)    Applicability of ISP and UCP; Limitation of Liability. Unless otherwise expressly agreed by the L/C Issuer and the applicable Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, the L/C Issuer shall not be responsible to any Borrower for, and the L/C Issuer’s rights and remedies with respect to any Borrower shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under any Law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such Law or practice.
(h)    Letter of Credit Fees. The Company shall pay to the Administrative Agent for the account of each Revolving A Lender in accordance, subject to Section 2.15, with its Applicable Percentage a Letter of Credit fee (the “Letter of Credit Fee”) (i) for each commercial
CHAR1\1981890v5


Letter of Credit equal to the Applicable Rate times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit and (ii) for each standby Letter of Credit equal to the Applicable Rate times the Dollar Equivalent of the daily maximum amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. Letter of Credit Fees shall be (x) computed on a quarterly basis in arrears and (y) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each standby Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
(i)    Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Company shall pay directly to the L/C Issuer for its own account a fronting fee (i) with respect to each commercial Letter of Credit, at the rate specified in the Fee Letter, computed on the Dollar Equivalent of the amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit, at a rate separately agreed between the Company and the L/C Issuer, computed on the Dollar Equivalent of the amount of such increase, and payable upon the effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the Dollar Equivalent of the actual daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit) and on a quarterly basis in arrears. Such fronting fee shall be due and payable on the first Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. In addition, the Company shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(j)    Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
(k)    Letters of Credit Issued for Restricted Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Restricted Subsidiary, the applicable Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit. Each Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Restricted Subsidiaries inures to the benefit of such Borrower, and that such Borrower’s business derives substantial benefits from the businesses of such Restricted Subsidiaries.
2.04    Swing Line Loans.
(a)    Swing Line Facility. Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the other Revolving A Lenders set forth in this Section 2.04, may in its sole discretion make loans (each such loan, a “Swing Line Loan”) to the Domestic Borrowers in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit; provided, however, that (i) after giving effect to any Swing Line Loan, (A) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments,
CHAR1\1981890v5


(B) the Total Revolving A Outstandings shall not exceed the Aggregate Revolving A Commitments and (C) the aggregate Revolving A Exposure of any Revolving A Lender shall not exceed such Lender’s Revolving A Commitment, (ii) no Domestic Borrower shall use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan and (iii) the Swing Line Lender shall not be under any obligation to make any Swing Line Loan if it shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the Domestic Borrowers may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Revolving A Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Revolving A Lender’s Applicable Percentage times the amount of such Swing Line Loan.
(b)    Borrowing Procedures. Each Borrowing of Swing Line Loans shall be made upon the applicable Domestic Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by (A) telephone or (B) by a Swing Line Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a Swing Line Loan Notice. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum principal amount of $500,000 and integral multiples of $100,000 in excess thereof, and (ii) the requested borrowing date, which shall be a Business Day. Promptly after receipt by the Swing Line Lender of any Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving A Lender) prior to 2:00 p.m. on the date of the proposed Borrowing of Swing Line Loans (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the applicable Domestic Borrower.
(c)    Refinancing of Swing Line Loans.
(i)    The Swing Line Lender at any time in its sole discretion may request, on behalf of the applicable Domestic Borrower (which hereby irrevocably requests and authorizes the Swing Line Lender to so request on its behalf), that each Revolving A Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans that are Revolving A Loans, but subject to the conditions set forth in Section 4.02 (other than the delivery of a Loan Notice); provided that, after giving effect to such Borrowing, the Total Revolving A Outstandings shall not exceed the Aggregate Revolving A Commitments. The Swing Line Lender shall furnish the applicable Domestic Borrower with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving A Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section
CHAR1\1981890v5


2.04(c)(ii), each Revolving A Lender that so makes funds available shall be deemed to have made a Base Rate Loan that is a Revolving A Loan to the applicable Domestic Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
(ii)    If for any reason any Swing Line Loan cannot be refinanced by such a Borrowing of Revolving A Loans in accordance with Section 2.04(c)(i), the request for Base Rate Loans that are Revolving A Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving A Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving A Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.
(iii)    If any Revolving A Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the Overnight Rate. A certificate of the Swing Line Lender submitted to any Revolving A Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iv)    Each Revolving A Lender’s obligation to make Revolving A Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender may have against the Swing Line Lender, any Domestic Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving A Lender’s obligation to make Revolving A Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such purchase or funding of risk participations shall relieve or otherwise impair the obligation of the Domestic Borrowers to repay Swing Line Loans, together with interest as provided herein.
(d)    Repayment of Participations.
(i)    At any time after any Revolving A Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving A Lender its Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by the Swing Line Lender.
(ii)    If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Revolving A Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Effective Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
CHAR1\1981890v5


(e)    Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Domestic Borrowers for interest on the Swing Line Loans. Until each Revolving A Lender funds its Revolving A Loans that are Base Rate Loans or risk participation pursuant to this Section 2.04 to refinance such Revolving A Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.
(f)    Payments Directly to Swing Line Lender. The Domestic Borrowers shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
2.05    Prepayments.
(a)    Optional Prepayments.
(i)    Any Borrower may, upon notice from such Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans or Term Loans in whole or in part without premium or penalty; provided, in each case, that (u) such notice must be in a form acceptable to the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by an Authorized Officer of the applicable Borrower and be received by the Administrative Agent not later than (A) 1:00 p.m. three Business Days prior to any date of prepayment of LIBOR Rate Loans, (B) 1:00 p.m. two Business Days prior to any date of prepayment of Term SOFR Loans, (CB) 11:00 a.m. four Business Days (or five, in the case of prepayment of Loans denominated in Special Notice Currencies) prior to any date of prepayment of any Alternative Currency Loans, (DC) 11:00 a.m. on the date of prepayment of Base Rate Loans, and (ED) 11:00 a.m. on the date of prepayment of Canadian Prime Rate Loans; (v) any prepayment of LIBOR Rate Loans, Term SOFR Loans, or Alternative Currency Loans shall be in a principal amount of the Dollar Equivalent of $5,000,000 (or C$5,000,000, in the case of Alternative Currency Loans denominated in Canadian Dollars) or a whole multiple of the Dollar Equivalent of $1,000,000 in excess thereof (or C$1,000,000, in the case of Alternative Currency Loans denominated in Canadian Dollars) or, if less, the entire principal amount thereof then outstanding; (w) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, if less, the entire principal amount thereof then outstanding; (x) any prepayment of Canadian Prime Rate Loans shall be in a principal amount of C$500,000 or a whole multiple of C$100,000 in excess thereof or, if less, the entire principal amount thereof then outstanding; (y) any prepayment of the Term Loans (other than the Term A-3 Loan) shall be applied ratably to the Term Loans (other than the Term A-3 Loan) to the remaining principal amortization payments thereof as directed by such Borrower; and (z) any prepayment of the Term A-3 Loan shall be applied to the remaining principal amortization payments thereof as directed by the Company. Each such notice shall specify (1) the date and amount of such prepayment, (2) the Loans to be prepaid, (3) the Type(s) of Loans to be prepaid, (4) if LIBOR Rate Loans, Term SOFR Loans, or Alternative Currency Term Rate Loans are to be prepaid, the Interest Period(s) of such Loans, (5) the currencies of the Loans to be prepaid and (6) whether the Loans to be prepaid are Revolving A Loans, Revolving B Loans, the Initial Term Loan, the Initial Term A-2 Loan, the Term A-3 Loan, Incremental Term Loans or Specified Refinancing Term Loans. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by a Borrower, such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that, a notice of optional prepayment delivered by the applicable Borrower may state that such notice is conditioned upon the effectiveness of other transactions, in which case such notice of prepayment may be revoked by the applicable Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is
CHAR1\1981890v5


not satisfied. Any prepayment of a Loan shall be accompanied by all accrued interest on the amount prepaid, together with, in the case of any LIBOR Rate Loan, any Term SOFR Loan, and any Alternative Currency Loan, any additional amounts required pursuant to Section 3.05. Subject to Section 2.15, each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their respective Applicable Percentages.
(ii)    Swing Line Loans. The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal thereof then outstanding). Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(b)    Mandatory Prepayments of Loans.
(i)    Revolving Commitments.
(A)    If for any reason, including exchange rate fluctuations, the Total Revolving A Outstandings at any time exceed the Aggregate Revolving A Commitments then in effect, the Borrowers shall promptly following notice from the Administrative Agent prepay Revolving A Loans and/or the Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i)(A) unless after the prepayment in full of the Revolving A Loans and the Swing Line Loans the Total Revolving A Outstandings exceed the Aggregate Revolving A Commitments then in effect.
(B)    If for any reason the Total Revolving B Outstandings at any time exceed the Aggregate Revolving B Commitments then in effect, the Borrowers shall promptly following notice from the Administrative Agent prepay Revolving B Loans in an aggregate amount equal to such excess.
(ii)    Asset Sales and Recovery Events. The Borrowers shall prepay the Term Loans in an aggregate amount equal to 100% of the Net Cash Proceeds of any Asset Sale or Recovery Event to the extent such Net Cash Proceeds are not reinvested or committed to be reinvested in assets (including Permitted Acquisitions) that are useful in the business of the Company and its Restricted Subsidiaries within 365 days of the date of such Asset Sale or Recovery Event (it being understood that such prepayment shall be due immediately upon the expiration of such 365 day period); provided, that in the case of any legally binding commitment to reinvest such Net Cash Proceeds within 365 days of receipt thereof, such 365 day period shall be extended by an additional 180 days.
(iii)    Debt Issuance. Immediately upon receipt by the Company or any Restricted Subsidiary of the Net Cash Proceeds of (x) any Debt Issuance or (y) any Refinancing Notes, any Specified Refinancing Term Loans or any Refinancing Junior Loans, the Borrowers shall prepay the Term Loans (in the case of clause (y), only the Term Loans being refinanced or replaced) in an aggregate amount equal to 100% of such Net Cash Proceeds.
(iv)    Application of Mandatory Prepayments. All amounts required to be paid pursuant to this Section 2.05(b) shall be applied as follows: (A) with respect to all
CHAR1\1981890v5


amounts prepaid pursuant to Section 2.05(b)(i)(A), first, ratably to the L/C Borrowings and the Swing Line Loans, second, to the outstanding Revolving A Loans, and, third, to Cash Collateralize the remaining L/C Obligations; (B) with respect to all amounts prepaid pursuant to Section 2.05(b)(i)(B), to the outstanding Revolving B Loans; and (C) with respect to all amounts prepaid pursuant to Section 2.05(b)(ii) or (iii), ratably to the Term Loans (in each case to the remaining principal amortization payments thereof as directed by the applicable Borrower); provided, that any Incremental Term Loan or Specified Refinancing Term Loan may participate in such mandatory prepayments pursuant to Section 2.05(b)(ii) and 2.05(b)(iii) on a pro rata or less than pro rata basis. Within the parameters of the applications set forth above, prepayments shall be applied first ratably to Base Rate Loans and Canadian Prime Rate Loans, then to Alternative Currency Daily Rate Loans, then ratably to LIBOR Rate Loans andto Term SOFR Loans, and lastly to Alternative Currency Term Rate Loans in direct order of Interest Period maturities. All prepayments under this Section 2.05(b) shall be subject to Section 3.05, but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment.
(c)    Repatriation Considerations. Notwithstanding any other provisions of Section 2.05(b)(ii), (i) to the extent that (and for so long as) any of or all the net proceeds of any event giving rise to a mandatory prepayment pursuant to Section 2.05(b)(ii) is prohibited or restricted by applicable local Law from being repatriated to the jurisdiction of organization of the Company, taking into account matters such as financial assistance, corporate benefit restrictions and the fiduciary and statutory duties of the directors of the Company and its Subsidiaries, an amount equal to the portion of such net proceeds so affected will not be required to be applied to repay Loans at the times provided in Section 2.05(b)(iv) but may be retained by the applicable Restricted Subsidiary so long as the applicable local Law will not permit such repatriation to the Company (the Company hereby agreeing to cause the applicable Restricted Subsidiary to promptly take commercially reasonable actions available under applicable local Law to permit such repatriation or a part thereof if full repatriation is not permitted) or such conflict or risk exists, and if such repatriation of any such affected net proceeds is permitted under the applicable local Law and such conflict or risk no longer exists, an amount equal to such net proceeds not previously paid will be promptly applied to the Loans pursuant Section 2.05(b)(ii) and (ii) to the extent that the Company has determined in good faith (in consultation with the Administrative Agent) that repatriation of any of or all of the net proceeds of any event giving rise to a prepayment pursuant to Sections 2.05(b)(ii) to the jurisdiction of organization of the Company would have a material adverse tax consequence with respect to such net proceeds (taking into account any foreign tax credit or benefit that would be realized in connection with such repatriation), the net proceeds so affected will not be required to be applied to repay the Loans at the times provided in Section 2.05(b) but may be retained by the applicable Restricted Subsidiary until such time as it may repatriate such amount without incurring such material adverse tax consequences (at which time such amount shall be repatriated to the Company and applied to repay the Loans to the extent provided herein).
(d)    Declined Amount. Other than with respect to repayments pursuant to Section 2.05(b)(iii)(y), the applicable Lenders may elect not to accept any mandatory prepayment (each such Lender, a “Declining Lender”). Any prepayment amount declined by the Declining Lenders (the “Declined Amount”) shall be retained by the Company.
2.06    Termination or Reduction of Commitments.
(a)    Revolving Commitments. The Company may, upon notice to the Administrative Agent, (i) terminate the Aggregate Revolving A Commitments and/or the Aggregate Revolving B Commitments, (ii) from time to time permanently reduce the Letter of Credit Sublimit, the Swing Line Sublimit and/or the Foreign Borrower Sublimit, (iii) from time to time permanently reduce the Aggregate Revolving A Commitments to an amount not less than the Outstanding Amount of Revolving A Loans, Swing Line Loans and L/C Obligations or (iv) from time to time permanently reduce the Aggregate Revolving B Commitments to an amount not less than the Outstanding Amount of Revolving B Loans; provided that (A) any such notice shall be received
CHAR1\1981890v5


by the Administrative Agent not later than 12:00 noon three (3) Business Days prior to the date of termination or reduction, (B) any such partial reduction shall be in an aggregate amount of $2,000,000 or any whole multiple of $1,000,000 in excess thereof, (C) the Company shall not terminate or reduce (x) (1) the Aggregate Revolving A Commitments and/or Aggregate Revolving B Commitments, as applicable, if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving A Outstandings and/or Total Revolving B Outstandings, as applicable, would exceed the Aggregate Revolving A Commitments and/or Aggregate Revolving B Commitments, as applicable, (2) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, (3) the Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed the Swing Line Sublimit or (4) the Foreign Borrower Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Loans and L/C Obligations made to Foreign Borrowers would exceed the Foreign Borrower Sublimit and (D) any such notice may state that such notice is conditioned upon the effectiveness of other transactions, in which case such notice of termination or reduction may be revoked by the applicable Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
(b)    Term A-3 Loan Commitments. The Company may, upon notice to the Administrative Agent, terminate or permanently reduce the Term A-3 Loan Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 12:00 noon three (3) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $2,000,000 or any whole multiple of $1,000,000 in excess thereof, and (iii) any such notice may state that such notice is conditioned upon the effectiveness of other transactions, in which case such notice of termination or reduction may be revoked by the applicable Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. The aggregate Term A-3 Loan Commitments shall be automatically and permanently reduced (A) upon the issuance by the Company or any of its Restricted Subsidiaries of senior notes as a registered, Rule 144A, or other private placement offering during the Term A-3 Loan Availability Period, on a dollar-for-dollar basis based on the principal amount of such notes, and (B) to zero on the earlier of (1) the Borrowing of the Term A-3 Loan pursuant to Section 2.01(e) and (2) the last day of the Term A-3 Loan Availability Period.
(c)    Notice. The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit, the Swing Line Sublimit, the Aggregate Revolving A Commitments, the Aggregate Revolving B Commitments, or the Term A-3 Loan Commitments under this Section 2.06. Upon any reduction of the Aggregate Revolving A Commitments, the Revolving A Commitment of each Revolving A Lender shall be reduced by such Lender’s Applicable Percentage of such reduction amount. Upon any reduction of the Aggregate Revolving B Commitments, the Revolving B Commitment of each Revolving B Lender shall be reduced by such Lender’s Applicable Percentage of such reduction amount. Upon any reduction of the Term A-3 Loan Commitments, the Term A-3 Loan Commitment of each Term A-3 Lender shall be reduced by such Lender’s Applicable Percentage of such reduction amount. All fees in respect of the Aggregate Revolving A Commitments, Aggregate Revolving B Commitments, and/or the Term A-3 Loan Commitments, as applicable, accrued until the effective date of any termination of the Aggregate Revolving A Commitments, Aggregate Revolving B Commitments, and/or the Term A-3 Loan Commitments, as applicable, shall be paid on the effective date of such termination.
2.07    Repayment of Loans.
(a)    Revolving Loans. The Borrowers shall repay to the Revolving Lenders on the Maturity Date the aggregate principal amount of all Revolving Loans outstanding on such date.
CHAR1\1981890v5


(b)    Swing Line Loans. The Company shall repay each Swing Line Loan on the earlier to occur of (i) the date within ten (10) Business Days of demand therefor by the Swing Line Lender and (ii) the Maturity Date.
(c)    Initial Term Loan. The Company shall repay the outstanding principal amount of the Initial Term Loan in installments on the dates and in the amounts equal to the percentages set forth in the table below of the outstanding principal amount of the Initial Term Loan on the Second Amendment Effective Date (as such installments may hereafter be adjusted as a result of prepayments of the Initial Term Loan made pursuant to Section 2.05), unless accelerated sooner pursuant to Section 8.01:
Payment Dates
Principal Amortization Payment
(% of Outstanding Amount of Initial Term Loan on the Second Amendment Effective Date)
September 30, 20210.000%
December 31, 20210.000%
March 31, 20220.000%
June 30, 20220.000%
September 30, 20220.000%
December 31, 20221.250%
March 31, 20231.250%
June 30, 2023