Form 8-K
8-K — AAR CORP
Accession: 0001104659-26-118655
Filed: 2026-10-26
Period: 2026-10-23
CIK: 0000001750
SIC: 3720 (AIRCRAFT & PARTS)
Item: Entry into a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Regulation FD Disclosure
Item: Financial Statements and Exhibits
Documents
8-K — tm2628131d2_8k.htm (Primary)
EX-10.1 — EXHIBIT 10.1 (tm2628131d2_ex10-1.htm)
EX-99.1 — EXHIBIT 99.1 (tm2628131d2_ex99-1.htm)
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Common Stock, $1.00 par value
AIR
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
October 23, 2026
AAR
CORP.
(Exact name of registrant as specified in its
charter)
Delaware
1-6263
36-2334820
(State or other jurisdiction
of incorporation )
(Commission
File Number)
(IRS
Employer
Identification No.)
One AAR Place
1100 N. Wood Dale Road
Wood Dale, Illinois
60191
(Address of principal executive offices)
(Zip Code)
Registrant’s telephone number, including
area code: (630) 227-2000
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Title of each class
Trading Symbol(s)
Name of each exchange on which
registered
Common
Stock, $1.00 par value
AIR
New
York Stock Exchange
NYSE Texas
Indicate by check mark whether the
registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter)
or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging
growth company ¨
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01. Entry into a Material Definitive Agreement.
Amended Revolving Credit Facility
On
October 23, 2026 (the “Amendment Closing Date”), AAR CORP., a Delaware corporation (the “Company”),
entered into Amendment No. 3 (the “Revolver Amendment”) to the Credit Agreement, dated as of December 14, 2022, among
the Company, as borrower, the lenders party thereto and Wells Fargo Bank, N.A., as administrative agent, which governs the Company’s
existing revolving credit facility (the “Existing Revolving Credit Facility” and as amended by the Revolver Amendment,
the “Amended Revolving Credit Facility”). Among other things, the Revolver Amendment (i) increased the aggregate commitments
under the Amended Revolving Credit Facility to $1,375.0 million, (ii) increased the maximum leverage ratio permitted under the financial
covenants applicable to the Amended Revolving Credit Facility to 5.50 to 1.00, subject to certain step-downs over time, (iii) effectuated
an extension of the maturity date of the Amended Revolving Credit Facility to the fifth anniversary of the Amendment Closing Date, (iv)
decreased the minimum interest coverage ratio to 2.00 to 1.00, (v) modified the pricing levels such that borrowings under the Amended
Revolving Credit Facility bear interest at a variable SOFR based rate plus 125 to 225 basis points, or at the offered fluctuating base
rate plus 25 to 125 basis points if a base rate loan, in each case based on the Company’s leverage ratio, and (vi) included certain
changes to expressly permit the Company’s previously announced pending acquisition (the “MROH Acquisition”) of
a controlling interest in MRO Holdings, Inc. (“MRO Holdings”) and the financing transactions related thereto. Neither
the effectiveness of the Revolver Amendment nor the availability or funding of borrowings under the Amended Revolving Credit Facility
is conditioned on the consummation of the MROH Acquisition.
The
foregoing description of the Revolver Amendment, including the description of the Amended Revolving Credit Facility, does not purport
to be complete and is subject to, and qualified in its entirety by, the full text of the Revolver Amendment, a copy of which is attached
hereto as Exhibit 10.1 and is incorporated by reference herein.
Item 2.03. Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The
information set forth above in Item 1.01 of this Current Report on Form 8-K (this “Current Report”) is incorporated
by reference into this Item 2.03.
Item 7.01. Regulation
FD Disclosure.
Amended Revolving
Credit Facility
On
October 26, 2026, the Company issued a press release announcing the entry of the Company into the Revolver Amendment. A copy of the press
release is attached as Exhibit 99.1 to this Current Report and is incorporated herein by reference.
The
information in this Item 7.01, including Exhibit 99.1, is being furnished and shall not be deemed “filed” for purposes
of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or otherwise subject to the liabilities of that Section and shall not be deemed to be incorporated by reference into
any filing by the Company under the Securities Act of 1933, as amended or the Exchange Act, except as shall be expressly set forth by
specific reference in such a filing.
Use of the Company’s Website to Distribute
Material Company Information
The Company uses its website
as a channel of distribution for important Company information. The Company routinely posts on its website important information, including
press releases, investor presentations and financial information, which may be accessed by clicking on the “Investors” section
of https://aarcorp.com. The Company also uses its website to expedite public access to time-critical information regarding the Company
in advance of or in lieu of distributing a press release or a filing with the SEC disclosing the same information. Therefore, investors
should look to the “Investors” section of the Company’s website for important and time-critical information.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
No.
Description
10.1*
Amendment No. 3
to the Credit Agreement, dated as of October 23, 2026, by and among the Company, as borrower, the lenders
party thereto and Wells Fargo Bank, N.A., as administrative agent
99.1
Press Release, dated October 26, 2026, announcing entry
into the Revolver Amendment
104
Cover Page Interactive Data File (embedded in the Inline XBRL document)
* Certain schedules and exhibits to this agreement have been omitted
pursuant to Item 601(a)(5) of Regulation S-K. The Company hereby undertakes to furnish supplementally a copy of any omitted schedule
or exhibit upon request by the SEC.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
AAR CORP.
Date: October 26, 2026
By:
/s/ Jessica A. Garascia
Jessica A. Garascia
Senior Vice President, General Counsel, Chief Administrative
Officer and Secretary
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2628131d2_ex10-1.htm · Sequence: 2
Exhibit 10.1
AMENDMENT NO. 3
TO
CREDIT AGREEMENT
This AMENDMENT NO. 3 to CREDIT
AGREEMENT, dated as of October 23, 2026 (this “Amendment”), is entered into by and among AAR CORP. (the “Borrower”),
the Lenders party hereto and WELLS FARGO BANK, N.A., as administrative agent (in such capacity, the “Administrative Agent”).
WITNESSETH
WHEREAS, the Borrower, the
lenders from time to time party thereto (the “Lenders”) and the Administrative Agent are parties to that certain Credit
Agreement, dated as of December 14, 2022 (as amended by Amendment No. 1, dated as of March 1, 2024, Amendment No. 2, dated as of February
27, 2025, and as may be further amended, restated, supplemented or otherwise modified prior to the date hereof, the “Existing
Credit Agreement” and, as amended by this Amendment, the “Amended Credit Agreement”; capitalized terms used
but not defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement);
WHEREAS, the Borrower has
entered into that certain Share Purchase Agreement, dated as of September 28, 2026 (as amended, restated, amended and restated, supplemented
or otherwise modified from time to time, the “Uplift Acquisition Agreement”), with the Uplift Seller (as defined in
Exhibit A hereto) and the Uplift Company (as defined in Exhibit A hereto), pursuant to which the Borrower will acquire,
directly or indirectly, at least 65% and up to 70% of the equity interests in the Uplift Company (the “Uplift Acquisition”);
WHEREAS, the Borrower has
requested, pursuant to Section 10.01 of the Existing Credit Agreement, that certain existing Lenders (such Lenders, the “Increasing
Lenders”) and certain financial institutions that will become Lenders upon execution of this Amendment (such financial institutions,
the “New Lenders”) provide an increase in the Aggregate Commitments to the Borrower on the Amendment No. 3 Effective
Date (as defined below) in an aggregate principal amount equal to $550,000,000 (the “Amendment No. 3 Commitment Increase”);
WHEREAS, the Increasing Lenders
and the New Lenders have agreed, on the terms and conditions set forth herein, to provide the Amendment No. 3 Commitment Increase and,
solely with respect to the New Lenders, to become Lenders for all purposes under the Amended Credit Agreement; and
WHEREAS, effective as of the
Amendment No. 3 Effective Date and pursuant to Section 10.01 of the Existing Credit Agreement, the Borrower wishes to amend the Existing
Credit Agreement in certain respects, and the existing Lenders party hereto (which Lenders constitute all Lenders under the Existing Credit
Agreement immediately prior to the Amendment No. 3 Effective Date), each L/C Issuer, the Swing Line Lender and the Administrative Agent
are willing to amend the Existing Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration
of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, the Administrative Agent and the Lenders party hereto hereby agree as follows:
SECTION 1. Amendment No. 3 Commitment Increase.
(a) Subject to the
satisfaction of the conditions to effectiveness set forth in Section 3 below, as of the Amendment No. 3 Effective Date, each Increasing
Lender and each New Lender hereby agrees to provide its respective portion of the Amendment No. 3 Commitment Increase as set forth on
Schedule I attached hereto under the heading “Amendment No. 3 Commitment Increase”.
(b) Each Increasing
Lender and each New Lender (i) confirms that it has received a copy of the Existing Credit Agreement and the other Loan Documents and
the exhibits thereto, together with copies of the financial statements referred to therein and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii) agrees that it will, independently
and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking action under the Amended Credit Agreement; (iii) appoints
and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Amended Credit
Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by
the terms of the Amended Credit Agreement are required to be performed by it as a Lender.
(c) For all purposes
under the Amended Credit Agreement and the other Loan Documents, the Amendment No. 3 Commitment Increase will have the same terms, and
be treated as the same class, as the existing Commitments, and the Loans under the Amendment No. 3 Commitment Increase shall have the
same terms, and be treated as the same class, as the existing Loans (including for purposes of mandatory prepayments and voluntary prepayments).
On and after the Amendment No. 3 Effective Date, each reference in the Amended Credit Agreement to (i) “Commitments” shall
be deemed to include a reference to the Amendment No. 3 Commitment Increase contemplated hereby and (ii) “Loans” shall be
deemed to include a reference to the Loans under the Amendment No. 3 Commitment Increase.
(d) Upon giving
effect to the Amendment No. 3 Commitment Increase, the outstanding Loans shall be reallocated among the Lenders (including the Increasing
Lenders and the New Lenders) in accordance with their respective Applicable Percentage (calculated after giving effect to the Amendment
No. 3 Commitment Increase). Each Increasing Lender and each New Lender hereby agrees that its respective purchase price for the portion
of the outstanding Loans purchased in connection with such reallocation shall equal the respective dollar amount necessary so that, from
and after such payments, the outstanding Loans of such Increasing Lender or such New Lender, as applicable, shall equal the Applicable
Percentage (calculated after giving effect to this Amendment) of the outstanding Loans of such Increasing Lender or such New Lender, as
applicable. Each Increasing Lender and each New Lender shall pay such amount on the date hereof by wire transfer of immediately available
funds to the Administrative Agent, for the account of the other Lenders.
(e) Each New Lender
acknowledges and agrees that, upon its execution of this Amendment, it shall become a “Lender” under, and for all purposes
of, the Amended Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform
all the obligations of and shall have all rights of a Lender thereunder.
(f) Except as set
forth in this Amendment, the Amendment No. 3 Commitment Increase and the Loans thereunder shall otherwise be subject to the provisions
of the Amended Credit Agreement and the other Loan Documents.
(g) The Amendment No. 3 Commitment Increase
is made pursuant to Section 10.01 of the Existing Credit Agreement.
SECTION 2. Amendments to
Existing Credit Agreement. Effective as of the Amendment No. 3 Effective Date, immediately after giving effect to Section 1
above, and subject to the satisfaction of the conditions to effectiveness set forth in Section 3 below, the Existing Credit Agreement
(but not any Schedules or Exhibits, except as set forth below) is hereby amended as follows (and the Amended Credit Agreement (including
any amended and restated Schedules as provided in Section 2(b) below) is hereby ratified, approved and confirmed in each and every respect
by all parties hereto):
(a) to delete the
stricken text (indicated textually in the same manner as the following example: stricken text)
and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined
text) as set forth in the Amended Credit Agreement attached hereto as Exhibit A; and
(b) to amend and
restate each of Schedules 2.01, 5.05, 5.07, 7.01, 7.02, 7.05 and 7.11 to the Existing Credit Agreement with the applicable schedule attached
hereto as Exhibit B; provided that on or about the Uplift Closing Date, the Borrower may deliver to the Administrative Agent
further amended and restated Schedules 5.07, 7.01, 7.02, 7.05 and/or 7.11, and each such Schedule so delivered shall automatically amend
and restate the corresponding Schedule to the Amended Credit Agreement in its entirety without any further consent or action by the Administrative
Agent, the Lenders or any other Person.
SECTION 3. Conditions of
Effectiveness. This Amendment shall become effective and be deemed effective as of the date hereof (such date, the “Amendment
No. 3 Effective Date”), subject to the satisfaction or waiver of each of the following conditions precedent:
(a) the Administrative Agent shall have received each of the following:
(i)
counterparts of this Amendment executed by the Borrower, the Administrative Agent, each L/C Issuer, the Swing Line Lender, each Lender
under the Existing Credit Agreement and each New Lender;
(ii)
counterparts of the consent and reaffirmation agreement (the “Consent and Reaffirmation”), substantially in the form
of Exhibit C attached hereto, executed by the Guarantors;
(iii)
a certificate of each Loan Party dated as of the Amendment No. 3 Effective Date signed by a Responsible Officer of such Loan Party
(x) certifying and attaching (i)(a) the Organization Documents of such Loan Party or (b) solely to the extent such Organization
Documents have not been amended, supplemented or otherwise modified since March 1, 2024, certifying that they remain in full force
and effect without any amendment, supplement or other modification since that date, (ii) incumbency certificates of such Loan Party
and (iii) the resolutions adopted by such Loan Party approving or consenting to the transactions contemplated hereby and (y) in the
case of the Borrower, certifying that the representations and warranties set forth in Section 5 are true and correct in all
material respects on and as of the Amendment No. 3 Effective Date after giving effect to this Amendment (except to the extent such
representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date, and except that the representations and warranties contained in
subsections (a) and (b) of Section 5.04 of the Amended Credit Agreement shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Amended Credit Agreement); provided that any
representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar
language shall be true and correct (after giving effect to any qualification therein) in all respects;
(iv) such documents
and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and
is validly existing, in good standing and qualified to engage in business in its state of incorporation (or formation) and in each other
state requested by the Administrative Agent;
(v) upon the reasonable
request of any Lender party hereto (including the New Lenders), in each case made at least five (5) days prior to the Amendment No. 3
Effective Date, (x) any documentation and other information requested by such Lender in connection with applicable “know your customer”
and anti -money-laundering rules and regulations, including, without limitation, the PATRIOT Act, and (y) a Beneficial Ownership Certification
in relation to any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation; and
(vi) (i) a favorable opinion of Debevoise
& Plimpton LLP, counsel to the Loan Parties, and (ii) a favorable opinion of Jessica Garascia, Senior Vice President, General Counsel,
Chief Administrative Officer, and Secretary of the Borrower, in each case, addressed to the Administrative Agent and each Lender, dated
the Amendment No. 3 Effective Date and in form and substance satisfactory to the Administrative Agent and each of the Lenders; and
(b) the Borrower
shall have paid all fees required to be paid on the Amendment No. 3 Effective Date pursuant to Section 4 hereof and other fees,
costs and expenses due and payable on the Amendment No. 3 Effective Date to the extent invoiced prior to the Amendment No. 3 Effective
Date.
SECTION 4. Upfront Fee.
As consideration for the agreements set forth herein, the Borrower agrees to pay (or cause to be paid) to the Administrative Agent, for
the ratable benefit of the Lenders party hereto on, and subject to the occurrence of, the Amendment No. 3 Effective Date, a non-refundable
upfront fee in an aggregate amount equal to 0.20% of the Aggregate Commitments as of the Amendment No. 3 Effective Date, which shall be
allocated to the Lenders according to their respective pro rata share of the Aggregate Commitments as of the Amendment No. 3 Effective
Date, and which fee shall be earned, due and payable in full on the Amendment No. 3 Effective Date.
SECTION 5. Representations
and Warranties of the Borrower. The Borrower represents and warrants to the Administrative Agent and each Lender party hereto that,
as of the date hereof and after giving effect to this Amendment:
(a) the
representations and warranties of the Borrower contained in Article V of the Amended Credit Agreement and the representations and
warranties of the Borrower and each other Loan Party contained in each other Loan Document to which such Person is a party are true
and correct in all material respects on and as of the date hereof and on and as of the Amendment No. 3 Effective Date (except to the
extent such representations and warranties specifically refer to an earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date, and except that the representations and warranties
contained in subsections (a) and (b) of Section 5.04 of the Amended Credit Agreement shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Amended Credit Agreement); provided
that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or
similar language shall be true and correct (after giving effect to any qualification therein) in all respects;
(b)
no Default or Event of Default has occurred and is continuing or would result from the effectiveness of this Amendment;
(c)
the Borrower and each other Loan Party is duly authorized to execute and deliver each of this Amendment and the Consent and Reaffirmation
to which such Person is a party and perform its Obligations thereunder;
(d)
each of this
Amendment and the Consent and Reaffirmation has been duly executed and delivered by each Loan Party that is party thereto and constitutes
a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, subject to
bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights generally and to general principles of
equity; and
(e)
the execution,
delivery and performance by the Borrower and each other Loan Party of each of this Amendment and the Consent and Reaffirmation to which
such Person is a party do not and will not (a) require any consent or approval of any governmental agency or authority (other than any
consent or approval which has been obtained and is in full force and effect) or which the failure to so obtain could not reasonably be
expected to have a Material Adverse Effect, (b) conflict with (i) any provision of law, (ii) the Organization Documents or material agreements
disclosed in the Borrower’s most recent filing with the SEC on Form 10-K or (iii) any material agreement, indenture, instrument
or other document, or any judgment, order or decree, which is binding upon the Borrower or any Restricted Subsidiary or any of their respective
properties or (c) require, or result in, the creation or imposition of any Lien on any asset of the Borrower or any Restricted Subsidiary
(other than Liens, if any, in favor of the Administrative Agent created pursuant to the Loan Documents).
SECTION 6. Effect on the Existing Credit Agreement.
(a)
Upon the effectiveness of this Amendment, on and after the date hereof, each reference in the Existing Credit Agreement to “this
Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference
to the Amended Credit Agreement.
(b)
Except as specifically amended and modified above, the Existing Credit Agreement and all other documents, instruments and agreements executed
and/or delivered in
connection therewith shall remain in full force and effect,
and are hereby ratified and confirmed.
(c)
The execution,
delivery and effectiveness of this Amendment shall neither, except as expressly provided herein, operate as a waiver of any right, power
or remedy of the Lenders or the Administrative Agent, nor constitute a waiver of any provision of the Existing Credit Agreement or any
other documents, instruments and agreements executed and/or delivered in connection therewith or serve to effect a novation of the Obligations.
SECTION 7. Costs and
Expenses. The Borrower agrees to pay all reasonable costs, fees and out-of-pocket expenses (including reasonable
attorneys’ fees, costs and expenses charged to the Administrative Agent) incurred by the Administrative Agent in connection
with the preparation, arrangement and execution of this Amendment.
SECTION 8. GOVERNING LAW.
THIS AMENDMENT 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 AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW, BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF).
SECTION 9. Incorporation
by Reference. The terms and provisions of Sections 10.14(b) (Submission to Jurisdiction), 10.14(c) (Waiver of Venue), 10.14(d) (Consent
to Service of Process) and 10.15 (Waiver of Jury Trial) of the Existing Credit Agreement are hereby incorporated herein by reference,
mutatis mutandis, with the same force and effect as if fully set forth herein, and the parties hereto agree to such terms. This Amendment
constitutes a “Loan Document” under and as defined in the Amended Credit Agreement and is subject to the terms and provisions
therein regarding Loan Documents.
SECTION 10. Headings.
Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
SECTION 11. Counterparts.
This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same instrument. An electronic or facsimile copy of a signature
hereto shall have the same effect as the original thereof. The words “delivery,” “execute,” “execution,”
“signed,” “signature,” and words of like import in this Amendment or any Loan Document or any other document executed
in connection herewith shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations
on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of
the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper -based
recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary neither the Administrative
Agent, the L/C Issuer nor any Lender is under any obligation to agree to accept electronic signatures in any form or in any format unless
expressly agreed to by the Administrative Agent, the L/C Issuer or such Lender pursuant to procedures approved by it and provided further
without limiting the foregoing, upon the request of any party, any electronic signature shall be promptly followed by such manually executed
counterpart.
The remainder of this page is intentionally blank.
IN WITNESS WHEREOF, this Amendment has been duly
executed as of the day and year first above written.
AAR CORP.,
as Borrower
By:
/s/ Dylan Wolin
Name: Dylan Wolin
Title: Senior Vice President and Chief Financial Officer
[Signature Page to Amendment No. 3 to Credit Agreement]
WELLS FARGO BANK, N.A.,
as Administrative Agent
By:
/s/ Heather Hoopingarner
Name: Heather Hoopingarner
Title: Executive Director
[Signature Page to Amendment No. 3 to Credit Agreement]
WELLS FARGO
BANK, N.A.,
as a Lender,
an Increasing Lender and an L/C Issuer
By:
/s/
Heather Hoopingarner
Name: Heather
Hoopingarner
Title: Executive
Director
[Signature Page to Amendment No. 3 to Credit Agreement]
WELLS FARGO
BANK, N.A.,
as Swing Line
Lender
By:
/s/
Heather Hoopingarner
Name: Heather
Hoopingarner
Title: Executive
Director
[Signature Page to Amendment No. 3 to Credit Agreement]
Truist Bank,
as a Lender
and an Increasing Lender
By:
/s/
Anika Kirs
Name: Anika
Kirs
Title: Director
[Signature Page to Amendment No. 3 to Credit Agreement]
Goldman Sachs Bank USA,
as a Lender and an Increasing Lender
By:
/s/ Robert Ehudin
Name: Robert Ehudin
Title: Authorized Signatory
[Signature Page to Amendment No. 3 to Credit Agreement]
BANK OF AMERICA, N.A.,
as a Lender, an Increasing Lender and an L/C Issuer
By:
/s/ A. Quinn Richardson
Name: A. Quinn Richardson
Title: Senior Vice President
[Signature Page to Amendment No. 3 to Credit Agreement]
PNC Bank, National Association,
as a Lender, and L/C Issuer and an Increasing Lender
By:
/s/ Michal Suchanek
Name: Michal Suchanek
Title: Assistant Vice President
[Signature Page to Amendment No. 3 to Credit Agreement]
CIBC Bank USA,
as a Lender, an Increasing Lender and an L/C Issuer
By:
/s/ Elliot Ashbeck
Name: Elliot Ashbeck
Title: Associate Managing Director
[Signature Page to Amendment No. 3 to Credit Agreement]
Associated Bank, N.A.,
as an Increasing Lender and a Lender
By:
/s/ Ian Ormseth
Name: Ian Ormseth
Title: Senior Vice President
[Signature Page to Amendment No. 3 to Credit Agreement]
JPMORGAN CHASE BANK, N.A.,
as a New Lender
By:
/s/ Kody J. Nerios
Name: Kody J. Nerios
Title: Authorized Officer
[Signature Page to Amendment No. 3 to Credit Agreement]
ROYAL BANK OF CANADA
as a New Lender
By:
/s/ Nikhil Madhok
Name: Nikhil Madhok
Title: Authorized Signatory
[Signature Page to Amendment No. 3 to Credit Agreement]
SCHEDULE I
[###]
EXHIBIT A
Amended Credit Agreement
[attached]
Exhibit A
CONFORMED COPY REFLECTING AMENDMENTS
UNDER:
AMENDMENT NO. 1, DATED AS OF MARCH 1, 2024
AMENDMENT NO. 2, DATED AS OF FEBRUARY 27, 2025
AMENDMENT
NO. 3, DATED AS OF OCTOBER 23, 2026
CREDIT AGREEMENT
dated as of December 14, 2022
among
AAR CORP.,
as the Borrower,
WELLS FARGO BANK, N.A.,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
the Lenders Party hereto,
WELLS FARGO SECURITIES, LLC,
BofA SECURITIES, INC.,
TRUIST SECURITIES, INC. and
CIBC BANK USA,
as Joint Lead Arrangers
and
WELLS FARGO SECURITIES, LLC
and
BofA SECURITIES, INC.,
as Joint Bookrunners
WELLS FARGO SECURITIES, LLC,
BofA SECURITIES, INC.,
CIBC WORLD MARKETS CORP.,
PNC CAPITAL MARKETS LLC
and
TRUIST SECURITIES, INC.,
as Joint Lead Arrangers and Joint Bookrunners
for Amendment No. 1
WELLS
FARGO SECURITIES, LLC, BOFA SECURITIES, INC., TRUIST SECURITIES, INC., CIBC WORLD MARKETS CORP., PNC CAPITAL MARKETS LLC, JPMORGAN
CHASE BANK, N.A., ROYAL BANK OF CANADA and GOLDMAN SACHS BANK USA,
as
Joint Lead Arrangers and Joint Bookrunners for Amendment No. 3
Table of Contents
Page
ARTICLE
I. DEFINITIONS AND ACCOUNTING TERMS
1
1.01
Defined
Terms
1
1.02
Other Interpretive
Provisions
3135
1.03
Accounting Terms
3136
1.04
Rounding
3236
1.05
Times of Day
3236
1.06
Letter of Credit Amounts
3236
1.07
Interest Rates
3237
1.08
Divisions
3337
1.09
Certain Conditions,
Calculations and Tests
3338
ARTICLE
II. THE COMMITMENTS AND CREDIT EXTENSIONS
3540
2.01
Committed Loans
3540
2.02
Borrowings, Conversions
and Continuations of Committed Loans
3540
2.03
[Reserved]
3641
2.04
Letters of Credit
3641
2.05
Swing Line Loans
4349
2.06
Prepayments
4651
2.07
Termination or Reduction
of Commitments
4652
2.08
Repayment of Loans
4752
2.09
Interest
4752
2.10
Fees
4753
2.11
Computation of Interest
and Fees; Retroactive Adjustments of Applicable Rate
4854
2.12
Evidence of Debt
4854
2.13
Payments Generally;
Administrative Agent’s Clawback
4955
2.14
Sharing of Payments
by Lenders
5056
2.15
[Reserved]
5156
2.16
Increase in Commitments
5157
2.17
Cash Collateral
5258
2.18
Defaulting Lenders
5359
ARTICLE
III. TAXES, YIELD PROTECTION AND ILLEGALITY
5560
3.01
Taxes
5560
3.02
Illegality
5864
3.03
Inability to Determine
Rates
5965
3.04
Increased Costs
6167
3.05
Compensation for Losses
6268
3.06
Mitigation Obligations;
Replacement of Lenders
6268
3.07
Survival
6369
TABLE OF CONTENTS (cont’d)
Page
ARTICLE
IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
6369
4.01
Conditions
of Initial Credit Extension
6369
4.02
Conditions to all Credit
Extensions
6470
ARTICLE
V. REPRESENTATIONS AND WARRANTIES
6571
5.01
Organization
6571
5.02
Authorization; No Conflict
6571
5.03
Validity and Binding
Nature
6571
5.04
Financial Condition;
No Material Adverse Effect
6672
5.05
Litigation and Contingent
Liabilities
6672
5.06
Ownership of Properties;
Liens
6672
5.07
Equity Ownership; Subsidiaries
6672
5.08
Pension Plans
6673
5.09
Investment Company
Act
6773
5.10
Regulation U
6773
5.11
Taxes
6773
5.12
Solvency; Etc.
6774
5.13
Environmental Matters
6874
5.14
Insurance
6874
5.15
Information
6874
5.16
Intellectual Property
6875
5.17
No Default
6975
5.18
Taxpayer Identification
Number
6975
5.19
Anti-Corruption Laws;
Sanctions; Anti-Terrorism Laws
6975
5.20
Affected Financial
Institutions
6975
ARTICLE
VI. AFFIRMATIVE COVENANTS
6975
6.01
Reports, Certificates
and Other Information
6975
6.02
Books, Records and
Inspections
7278
6.03
Maintenance of Property;
Insurance
7278
6.04
Compliance with Laws;
Payment of Taxes and Liabilities
7279
6.05
Maintenance of Existence,
Etc.
7379
6.06
Use of Proceeds
7379
6.07
Additional Guarantors
7379
6.08
PATRIOT Act Compliance;
Policies and Procedures
7379
ARTICLE
VII. NEGATIVE COVENANTS
7380
7.01
Debt
7480
7.02
Liens
7581
7.03
Restricted Payments
7785
7.04
Mergers and Consolidations
7785
7.05
Sale of Assets, Etc.
7886
7.06
Acquisitions
7886
7.07
[Reserved]
7987
7.08
Transactions with Affiliates
7987
7.09
Inconsistent Agreements
8088
ii
TABLE OF CONTENTS (cont’d)
Page
7.10
Business Activities
8089
7.11
Investments
8189
7.12
Fiscal Year
8290
7.13
Financial Covenants
8290
7.14
Fall-Away
Covenants
91
7.15
Amendments
to Uplift Intercompany Loan Agreement.
92
ARTICLE
VIII. EVENTS OF DEFAULT AND REMEDIES
8292
8.01
Events of Default
8292
8.02
Remedies Upon Event
of Default
8494
8.03
Application of Funds
8495
ARTICLE
IX. ADMINISTRATIVE AGENT
8596
9.01
Appointment and Authority
8596
9.02
Rights as a Lender
8596
9.03
Exculpatory Provisions
8696
9.04
Reliance by Administrative
Agent
8697
9.05
Delegation of Duties
8797
9.06
Resignation of Administrative
Agent
8797
9.07
Non-Reliance on Administrative
Agent and Other Lenders
8798
9.08
No Other Duties, Etc
8898
9.09
Administrative Agent
May File Proofs of Claim
8898
9.10
Guaranty Matters
8899
9.11
Syndication Agents
8999
9.12
Certain ERISA Matters
8999
9.13
Erroneous Payments
90101
ARTICLE
X. MISCELLANEOUS
92102
10.01
Amendments, Etc
92102
10.02
Notices; Effectiveness;
Electronic Communication
93104
10.03
No Waiver; Cumulative
Remedies; Enforcement
95105
10.04
Expenses; Indemnity;
Damage Waiver
95106
10.05
Payments Set Aside
97107
10.06
Successors and Assigns
97108
10.07
Treatment of Certain
Information; Confidentiality
101112
10.08
Right of Setoff
102113
10.09
Interest Rate Limitation
102113
10.10
Counterparts; Integration;
Effectiveness
103113
10.11
Survival of Representations
and Warranties
103114
10.12
Severability
103114
10.13
Replacement of Lenders
103114
10.14
Governing Law; Jurisdiction;
Etc.
104115
10.15
Waiver of Jury Trial
105116
10.16
No Advisory or Fiduciary
Responsibility
105116
10.17
Electronic Execution
of Assignments and Certain Other Documents
106117
10.18
USA PATRIOT Act
106117
10.19
Acknowledgement and
Consent to Bail-In of Affected Financial Institutions
106117
iii
TABLE OF CONTENTS (cont’d)
Page
10.20
Acknowledgement Regarding
Any Supported QFCs
107119
iv
SCHEDULES
2.01
Commitments and Applicable Percentages
2.04(a)
Letter of Credit Sublimit Amounts
2.04(b)
Existing Letters of Credit
5.05
Litigation
5.07
Subsidiaries; Other Equity Investments; Equity Interests
in the Borrower
7.01
Existing Debt
7.02
Existing Liens
7.05
Asset Dispositions
7.11
Investments
10.02
Administrative Agent’s Office; Certain Addresses
for Notices
EXHIBITS
A
Form of Committed Loan Notice
C
Form of Swing Line Loan Notice
D
Form of Note
E
Form of Compliance Certificate
F-1
Form of Assignment and Assumption
F-2
Form of Administrative Questionnaire
G
Form of Guaranty
H-1
Form of U.S. Tax Compliance Certificate (for Foreign
Lenders That Are Not Partnerships for U.S. Federal Income Tax Purposes)
H-2
Form of U.S. Tax Compliance Certificate (for Foreign
Participants That Are Not Partnerships for U.S. Federal Income Tax Purposes)
H-3
Form of U.S. Tax Compliance Certificate (for Foreign
Participants That Are Partnerships for U.S. Federal Income Tax Purposes)
H-4
Form of U.S. Tax Compliance Certificate (for Foreign
Lenders That Are Partnerships for U.S. Federal Income Tax Purposes)
CREDIT AGREEMENT
This CREDIT AGREEMENT is
entered into as of December 14, 2022, among AAR CORP., a Delaware corporation (the “Borrower”), each lender from time
to time party hereto (collectively, the “Lenders” and individually, a “Lender”), WELLS FARGO BANK,
N.A., as Administrative Agent, Swing Line Lender and a L/C Issuer, and BANK OF AMERICA, N.A., as Syndication Agent and a L/C Issuer.
The Borrower has requested
that the Lenders provide a revolving credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.
In 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:
“AAR AESL Group”
has the meaning given in the definition of Unrestricted Subsidiary.
“AAR Airlift Group”
has the meaning given in the definition of Unrestricted Subsidiary.
“AAR IFS Group”
has the meaning given in the definition of Unrestricted Subsidiary.
“Acquired Debt”
means Debt of a Person existing at the time such Person became a Restricted Subsidiary or assumed by the Borrower or a Restricted Subsidiary
of the Borrower pursuant to an Acquisition permitted hereunder (and not created or incurred in connection with or in anticipation of
such Acquisition) which is otherwise permitted by the terms of this Agreement.
“Acquisition”
means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of all or substantially all of any business or division of a Person, (b) the
acquisition of in excess of 50% of the Equity Interests of any Person, or otherwise causing any Person to become a Subsidiary, or (c)
a merger or consolidation or any other combination with another Person (other than a Person that is already a Subsidiary).
“Acquisition Holiday”
has the meaning specified in Section 7.13(b).
“Adjusted Term SOFR”
means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for
such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted
Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Adjusted Total
Debt to EBITDA Ratio” means, as of the last day of any Fiscal Quarter, the ratio of (a) the excess of Total Debt as of such
day over Unrestricted Cash as of such day to (b) EBITDA for the Computation Period ending on such day.
“Administrative
Agent” means Wells Fargo Bank, N.A. in its capacity as administrative agent under any of the Loan Documents, or any successor
administrative agent.
“Administrative
Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02,
or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
“Administrative
Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit F-2 or any other form
approved 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.
“Aggregate Commitments”
means the Commitments of all the Lenders. As of the Amendment No. 13
Effective Date, the Aggregate Commitments are $825,000,0001,375,000,000.
“Agreement”
means this Credit Agreement, as it may be amended, restated, supplemented or otherwise modified and as in effect from time to time.
“Amendment No. 1”
means that certain Amendment No. 1 to this Agreement, dated as of the Amendment No. 1 Effective Date, by and among the Borrower, the
Lenders party thereto and the Administrative Agent.
“Amendment No. 1
Effective Date” means March 1, 2024.
“Amendment
No. 3” means that certain Amendment No. 3 to this Agreement, dated as of the Amendment No. 3 Effective Date, by and among the Borrower,
the Lenders party thereto and the Administrative Agent.
“Amendment
No. 3 Effective Date” means October 23, 2026.
“Anti-Corruption
Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to
time concerning or relating to bribery or corruption, including, without limitation, the United States Foreign Corrupt Practices Act
of 1977 and the UK Bribery Act 2010.
“Applicable Percentage”
means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented
by such Lender’s Commitment at such time, subject to adjustment as provided in Section 2.18. If the commitment of each
Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02
or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable
Percentage of such Lender most recently in effect, giving effect to any subsequent assignments and to any Lender’s status as a
Defaulting Lender at the time of determination. The initial Applicable Percentage of each Lender is set forth opposite the name of such
Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
“Applicable Rate”
means the following percentages per annum, based upon the Adjusted Total Debt to EBITDA Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.01(c):
2
Applicable
Rate
Pricing
Level
Adjusted
Total Debt to
EBITDA Ratio
Commitment
Fee
Adjusted
Term
SOFR and Letters
of Credit
Base
Rate
1
≤
1.001.75:1.00
0.150.150%
1.1251.250%
0.1250.250%
2
> 1.001.75:1.00
but
≤ 1.752.75:1.00
0.175%
1.251.500%
0.250.500%
3
> 1.752.75:1.00
but
≤ 2.753.75:1.00
0.200.200%
1.501.750%
0.500.750%
4
> 2.753.75:1.00
but
≤ 3.254.75:1.00
0.225%
1.752.000%
0.751.000%
5
>
3.25:1.00 but
≤ 3.75:4.75:1.00
0.250.250%
2.002.250%
1.001.250%
6
>
3.75:1.00
0.275%
2.50%
1.50%
Any increase or decrease in the Applicable Rate resulting from a change
in the Adjusted Total Debt to EBITDA Ratio shall become effective as of the first Business Day immediately following the date a Compliance
Certificate is delivered pursuant to Section 6.01(c); provided, however, 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 4 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. The Applicable Rate in effect from the ClosingAmendment
No. 3 Effective Date through the date on which the next due Compliance Certificate is delivered to the Administrative Agent pursuant
to Section 6.01(c) shall be determined based upon Pricing Level 12.
“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.
“Arranger”
or “Arrangers” means Wells Fargo Securities, LLC, BofA Securities, Inc., Truist Securities, Inc., CIBC Bank USA and,
with respect to Amendment No. 1, Wells Fargo Securities, LLC, BofA Securities, Inc., Truist Securities, Inc., CIBC World Markets Corp.
and, PNC
Capital Markets LLC and, with respect to Amendment No. 3, Wells Fargo Securities,
LLC, BofA Securities, Inc., Truist Securities, Inc., CIBC World Markets Corp., PNC Capital Markets LLC, JPMorgan Chase Bank, N.A., Royal
Bank of Canada and Goldman Sachs Bank USA, each in its capacity as a joint lead arranger.
“Asset Disposition”
means any Transfer of property having a Disposition Value of the greater of (x) $6,600,00019,250,000
and (y) 2.5% of LTM EBITDA or more except:
3
(a) any
Transfer from a Restricted Subsidiary to the Borrower or a Wholly-Owned Restricted Subsidiary;
(b) any
Transfer from the Borrower to a Wholly-Owned Restricted Subsidiary;
(c) any
Transfer from the Borrower to a Restricted Subsidiary (other than a Wholly-Owned Restricted Subsidiary) or from a Restricted Subsidiary
to another Restricted Subsidiary (other than a Wholly-Owned Restricted Subsidiary), which in either case is for Fair Market Value;
(d) any
Transfer of property from the Borrower or any Restricted Subsidiary in connection with a sale-and-leaseback transaction entered into
within 365 days after the initial acquisition or construction of such property by the Borrower or any Restricted Subsidiary;
(e) any
Transfer made in the ordinary course of business of property that is either (i) inventory held for rent or sale or (ii) equipment, fixtures,
supplies or materials no longer required in the operation of the business of the Borrower or any of its Restricted Subsidiaries or that
is obsolete;
(f) any
Transfer, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course
of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as
part of any bulk sale or financing of receivables); and
(g) any
lease, license, sublease or sublicense of any real or personal property (including intellectual property) in the ordinary course of business;
provided that, with respect
to clauses (c) and (d) above, immediately before and immediately after the consummation of such Transfer, no Default or Event of Default
exists.
“Assignee Group”
means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment
advisor.
“Assignment and
Assumption” means an assignment and assumption entered into by a Lender and an 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 F-1
or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
“Attorney Costs”
means, with respect to any Person, all reasonable fees and charges of any counsel to such Person and all court costs and similar legal
expenses.
“Audited Financial
Statements” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended May
31, 2022 and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year
of the Borrower and its Subsidiaries, including the notes thereto.
“Availability Period”
means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination
of the Aggregate Commitments pursuant to Section 2.07, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.
4
“Available Tenor”
means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if such Benchmark is a term
rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant
to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof)
that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each
case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition
of “Interest Period” pursuant to Section 3.03(c)(iv).
“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected
Financial Institution.
“Bail-In Legislation”
means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the
Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which
is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking
Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution
of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration
or other insolvency proceedings).
“Bank Product Agreements”
means those certain cash management service agreements entered into from time to time between the Borrower or any Restricted Subsidiary
and a Lender or its Affiliates in connection with any of the Bank Products.
“Bank Product Obligations”
means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by the Borrower or any Restricted
Subsidiary to any Lender or its Affiliates pursuant to or evidenced by the Bank Product Agreements and irrespective of whether for the
payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including
all such amounts that the Borrower or any Restricted Subsidiary is obligated to reimburse to the Administrative Agent or any Lender as
a result of the Administrative Agent or such Lender purchasing participations or executing indemnities or reimbursement obligations with
respect to the Bank Products provided to the Borrower or any Restricted Subsidiary pursuant to the Bank Product Agreements.
“Bank Products”
means any service or facility extended to the Borrower or any Restricted Subsidiary by any Lender or its Affiliates including: (a) credit
cards, (b) credit card processing services, (c) debit cards, (d) purchase cards, (e) ACH transactions, (f) cash management, including
controlled disbursement, accounts or services, or (g) Hedging Agreements.
“Base Rate”
means, for any day, a fluctuating rate per annum equal to the highest of (a) the Prime Rate in effect on such day, (b) the Federal Funds
Rate in effect on such day, plus 0.50% and (c) Adjusted Term SOFR for a one-month tenor in effect on such day plus 1.00%; each change
in the Base Rate shall take effect simultaneously with the corresponding change or changes in the Prime Rate, the Federal Funds Rate
or Adjusted Term SOFR, as applicable (provided that clause (c) shall not be applicable during any period in which Adjusted Term
SOFR is unavailable or unascertainable).
“Base Rate Committed
Loan” means a Committed Loan that is a Base Rate Loan.
“Base Rate Loan”
means a Loan that bears interest based on the Base Rate.
5
“Base Rate Term
SOFR Determination Day” has the meaning assigned thereto in the definition of “Term SOFR”.
“Benchmark”
means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the
Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the
extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.03(c)(i).
“Benchmark Replacement”
means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by the Administrative
Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism
for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining
a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (b) the related
Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor,
such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement
Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for
any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be
a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to
(a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the
replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving
or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment,
for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities.
“Benchmark Replacement
Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(a) in
the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public
statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published
component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such
component thereof); or
(b) in
the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the
published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of such Benchmark
(or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative
or non-compliant with or non-aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks;
provided that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most recent
statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof)
continues to be provided on such date.
6
For the avoidance of doubt,
the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark
upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark
(or the published component used in the calculation thereof).
“Benchmark Transition
Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a) a
public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used
in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark
(or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is
no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof), the FRB, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over
the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark
(or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark
(or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all
Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such
statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or
such component thereof); or
(c) a
public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used
in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) announcing
that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative
or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.
For the avoidance of doubt,
a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication
of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component
used in the calculation thereof).
“Benchmark Transition
Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date
and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior
to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective
event is fewer than 90 days after such statement or publication, the date of such statement or publication).
7
“Benchmark Unavailability
Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time,
no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance
with Section 3.03(c)(i) and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all
purposes hereunder and under any Loan Document in accordance with Section 3.03(c)(i).
“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”.
“Borrower”
has the meaning specified in the introductory paragraph hereto.
“Borrower Materials”
means any materials and/or information provided by or on behalf of the Borrower to the Lenders and L/C Issuer under Section 6.01.
“Borrowing”
means a Committed Borrowing or a Swing Line Borrowing, as the context may require.
“Business Day”
means any day that (a) is not a Saturday or Sunday and (b) is not a day on which commercial banks in Charlotte, North Carolina or Chicago,
Illinois are closed.
“Capital Lease”
means, with respect to any Person, any lease of (or other agreement conveying the right to use) any real or personal property by such
Person that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of such Person.
“Cargo/Precision
Companies” means Telair International GmbH and its Subsidiaries, Nordisk Aviation Products AS and its Subsidiaries, the AAR
Cargo (Telair US) business and the Precision Systems Manufacturing business (including Aerostructures & Interiors).
“Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, L/C Issuer or Swing
Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations
of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if
the L/C Issuer or Swing Line Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each
case pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and (b) the L/C Issuer or
the Swing Line Lender (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include
the proceeds of such cash collateral and other credit support.
8
“Cash Equivalent
Investment” means, at any time, (a) any evidence of Debt, maturing not more than one year after such time, issued or guaranteed
by the United States government or any agency thereof, (b) commercial paper, maturing not more than one year from the date of issue,
or corporate demand notes, in each case (unless issued by a Lender or its holding company) rated at least A-l by Standard & Poor’s
Ratings Services, a division of The McGraw-Hill Companies, Inc. or P-l by Moody’s Investors Service, Inc., (c) any deposit account,
certificate of deposit, time deposit or banker’s acceptance, maturing not more than one year after such time, or any overnight
Federal Funds transaction that is issued or sold by any Lender or its holding company (or by a commercial banking institution that is
a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000), (d)
any repurchase agreement entered into with any Lender (or commercial banking institution of the nature referred to in clause (c)) which
(i) is secured by a fully perfected security interest in any obligation of the type described in any of clauses (a) through (c) above
and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation
of such Lender (or other commercial banking institution) thereunder, (e) money market accounts or mutual funds which invest exclusively
in assets satisfying the foregoing requirements, and (f) other short term liquid investments approved in writing by the Administrative
Agent.
“CFC”
means a controlled foreign corporation within the meaning of Section 957 of the Code.
“Change in Law”
means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation
or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive
(whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary,
(x) 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 (y) all requests, rules, guidelines or directives promulgated
by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the
United States 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, issued or implemented.
“Change of Control”
means the occurrence of any transaction pursuant to which any person (as such term is used in Section 13(d) of the Exchange Act), or
two or more persons acting in concert, acquires beneficial ownership (as that term is defined in Rule 13d-3 under the Exchange Act),
of more than 50% of the outstanding capital stock of the Borrower entitled to vote for the election of directors.
“Closing Date”
means December 14, 2022.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Commitment”
means, as to each Lender, its obligation to (a) make Committed Loans to the Borrower pursuant to Section 2.01, (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 Lender’s name on Schedule 2.01 or in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time
in accordance with this Agreement.
“Committed Borrowing”
means a borrowing consisting of simultaneous Committed Loans of the same Type and, in the case of SOFR Committed Loans, having the same
Interest Period made by each of the Lenders pursuant to Section 2.01.
“Committed Loan”
has the meaning specified in Section 2.01.
9
“Committed Loan
Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other,
or (c) a continuation of SOFR Committed Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially
in the form of Exhibit A 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 a
Responsible Officer of the Borrower.
“Commodity Exchange
Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Compliance Certificate”
means a certificate substantially in the form of Exhibit E.
“Computation Period”
means the period of four consecutive Fiscal Quarters ending on the last day of each Fiscal Quarter.
“Conforming Changes”
means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark
Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the
definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of
“Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”),
timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or
continuation notices, the applicability and length of lookback periods, the applicability of Section 3.05 and other technical,
administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation
of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with
market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively
feasible or if the Administrative Agent determines that no market practice for the administration of any such rate 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), in each case in consultation with the Borrower.
“Consolidated Assets”
means, at any time, the total assets of the Borrower and its Restricted Subsidiaries which would be shown as assets on a consolidated
balance sheet of the Borrower and its Restricted Subsidiaries as of such time prepared in accordance with GAAP, after eliminating all
amounts properly attributable to minority interests, if any, in the stock and surplus of Restricted Subsidiaries.
“Consolidated Net
Income” means, with respect to the Borrower and its Restricted Subsidiaries for any period, the net income (or loss) of the
Borrower and its Restricted Subsidiaries for such period (taken as a cumulative whole), as determined in accordance with GAAP, after
eliminating all offsetting debits and credits between the Borrower and its Restricted Subsidiaries and all other items required to be
eliminated in the course of the preparation of consolidated financial statements of the Borrower and its Restricted Subsidiaries in accordance
with GAAP.
“Contingent Liabilities”
means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments
for deposit or collection) of such Person guaranteeing or in effect guaranteeing any Debt, dividend or other obligation of any other
Person in any manner, whether directly or indirectly, including obligations incurred through an agreement, contingent or otherwise, by
such Person: (a) to purchase such Debt or obligation or any property constituting security therefor; (b) to advance or supply funds (i)
for the purchase or payment of such Debt or obligation, or (ii) to maintain any working capital or other balance sheet condition or any
income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such Debt
or obligation; (c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such
Debt or obligation of the ability of any other Person to make payment of the Debt or obligation; or (d) otherwise to assure the owner
of such Debt or obligation against loss in respect thereof. In any computation of the Debt or other liabilities of the obligor under
any Contingent Liability, the Debt or other obligations that are the subject of such Contingent Liability shall be assumed to be direct
obligations of such obligor.
10
“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. “Controlling” and “Controlled”
have meanings correlative thereto.
“Covenant
Fall-Away Event” has the meaning specified in Section 7.14(a).
“Credit Extension”
means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Debt”
of any Person means, without duplication, (a) its liabilities for borrowed money determined in accordance with GAAP; (b) its liabilities
for the deferred purchase price of property acquired by such Person (excluding accounts payable and other accrued liabilities arising
in the ordinary course of business but including all liabilities created or arising under any conditional sale or other title retention
agreement with respect to any such property); (c) its Capital Lease obligations; (d) all liabilities for borrowed money (other than Nonrecourse
Debt) secured by any Lien with respect to any property owned by such Person (whether or not it has assumed or otherwise become liable
for such liabilities); (e) all obligations, contingent or otherwise, with respect to the face amount of all letters of credit (whether
or not drawn), bankers’ acceptances and similar obligations issued for the account of such Person (including the Letters of Credit);
(f) all Hedging Obligations of such Person; and (g)
the redemption, repayment or other repurchase amount of such Person with respect to any Disqualified Stock of such Person or (if such
Person is a Subsidiary of the Borrower other than a Guarantor) any Preferred Stock of such Subsidiary, but excluding, in each case, any
accrued dividends relating thereto (the amount of such obligation to be equal at any time to the maximum fixed involuntary redemption,
repayment or repurchase price for such Equity Interest, or if less (or if such Equity Interest has no such fixed price), to the involuntary
redemption, repayment or repurchase price therefor calculated in accordance with the terms thereof as if then redeemed, repaid or repurchased,
and if such price is based upon or measured by the fair market value of such Equity Interest, such fair market value shall be as determined
in good faith by the Borrower, which determination shall be conclusive); and (h) any Contingent Liability of such Person with
respect to liabilities of a type described in any of clauses (a) through (f) hereof. Debt of any Person shall include all obligations
of such Person of the character described in clauses (a) through (gh)
to the extent such Person remains legally liable in respect thereof notwithstanding that any such obligation is deemed to be extinguished
under GAAP. For further certainty, obligations of the Borrower and its Restricted Subsidiaries as lessee in respect of operating leases
(including “leveraged leases” and “synthetic leases” that are accounted for as operating leases) under GAAP shall
not constitute “Debt” and obligations of the Borrower and its Subsidiaries in respect of intercompany expenses, billings
and other charges between and among the Borrower and its Subsidiaries consistent with their historical business practices shall not constitute
“Debt”.
“Debt Prepayment
Application” means, with respect to any Transfer of property, the application by the Borrower or its Restricted Subsidiaries
of cash in an amount equal to the Net Proceeds Amount with respect to such Transfer to pay Debt of the Borrower (other than (i) Subordinated
Debt and (ii) Debt owing to the Borrower, any of its Subsidiaries or any Affiliate).
“Debtor Relief Laws”
means the Bankruptcy Code of the United States, 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.
11
“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 with respect to a SOFR 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, and (b) when used with respect to Letter of Credit Fees, a
rate equal to the Applicable Rate plus 2% per annum.
“Defaulting Lender”
means, subject to Section 2.18(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within
two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and
the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to
funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing)
has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer, and Swing Line Lender or any other Lender any other
amount required to be paid by it hereunder (including in respect of its Loans or participations in respect of Letters of Credit or Swing
Line Loans) within two Business Days of the date required to be funded by it hereunder, (b) has notified the Borrower, the Administrative
Agent or any L/C Issuer or Swing Line Lender in writing that it does not intend to comply with its funding obligations, or has made a
public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend
credit (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 request by the Administrative Agent or the Borrower, to confirm in a writing to the Administrative Agent
and the Borrower that it will comply with its funding obligations hereunder (provided that such Lender shall cease to be a Defaulting
Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has,
or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had
appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other
state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that
a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any 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 clauses (a) through (d)
above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section
2.18(b)) upon delivery of written notice of such determination to the Borrower, each L/C Issuer, each Swing Line Lender and each
Lender.
12
“Disqualified
Stock” means, with respect to any Person, any Equity Interest that by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable or exercisable) or upon the happening of any event (other than following the occurrence
of a Change of Control or other similar event described under such terms as a “change of control” or Disposition) (i) matures
or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii) is convertible or exchangeable for Debt or Disqualified
Stock or (iii) is redeemable at the option of the holder thereof (other than following the occurrence of a Change of Control or other
similar event described under such terms as a “change of control” or Disposition), in whole or in part, in each case on or
prior to the date that is 91 days after the Maturity Date then in effect; provided that Equity Interests issued to any employee benefit
plan, or by any such plan to any employees of the Borrower or any Subsidiary, shall not constitute Disqualified Stock solely because
it may be required to be repurchased or otherwise acquired or retired in order to satisfy applicable statutory or regulatory obligations.
“Disposition”
or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction)
of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.
“Disposition Value”
means, at any time, with respect to any property
(a) in
the case of property that does not constitute Restricted Subsidiary Stock, the book value thereof, valued at the time of such Disposition
in good faith by the Borrower, and
(b) in
the case of property that constitutes Restricted Subsidiary Stock, an amount equal to that percentage of book value of the assets of
the Restricted Subsidiary that issued such stock as is equal to the percentage that the book value of such Restricted Subsidiary Stock
represents of the book value of all of the outstanding capital stock of such Restricted Subsidiary (assuming, in making such calculations,
that all securities convertible into such capital stock are so converted and giving full effect to all transactions that would occur
or be required in connection with such conversion) determined at the time of the Disposition thereof, in good faith by the Borrower.
“Dollar”
and “$” mean lawful money of the United States.
“Domestic Subsidiary”
means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.
13
“EBITDA”
means, for any period, without duplication, Consolidated Net Income for such period plus, to the extent deducted in determining such
Consolidated Net Income, the sum of (i) Interest Expense, (ii) income and franchise tax expense, (iii) depreciation and amortization,
(iv) any non-cash charges and/or losses (including any impairment charge or asset write-off or write-down (including related to intangible
assets (including goodwill), long-lived assets, and investments in debt and equity securities)), (v) except to the extent added back
pursuant to the foregoing clause (iv), unusual, non-recurring or exceptional expenses, losses or charges (including any unusual, non-recurring
or exceptional operating expenses, losses or charges directly attributable to the implementation of cost savings initiatives), severance,
relocation costs, integration and facilities’ opening costs and other business optimization expenses and operating improvements
(including related to new product introductions), systems development and establishment costs, recruiting fees, signing costs, retention
or completion bonuses, transition costs, costs related to closure/consolidation of facilities, internal costs in respect of strategic
initiatives and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension
liabilities), contract terminations and professional and consulting fees incurred in connection with any of the foregoing, provided that
the aggregate amount of expenses, losses and charges added back pursuant to this clause (v) for any applicable period (A)
shall not exceed 10% of EBITDA for such period and (B) when combined with any amounts
added back pursuant to clauses (vi) and (vii) below for such period, shall not exceed 2015%
of EBITDA for such period (beforecalculated
after giving effect to any amounts added backadjustment
pursuant to this clause (v) and such clauses (vi) and (vii), but without giving effect to any proviso
contained in this clause (v) or such clauses (vi) and (vii)), (vi) except to the extent added back pursuant to the foregoing
clause (iv), expected pro forma “run rate” cost savings, operational expense reductions, operating
enhancements (which operating enhancements shall be limited to such enhancements (including related revenue) attributable to new, improved
or expanded facilities for which the Borrower or any of
its Restricted Subsidiaries has entered into agreements with customers for maintenance work to be performed at such facilities and has
incurred or consummated any capital expenditure or other maintenance, construction, repair, replacement, improvement or development at
or with respect to such facilities), other operating improvements or synergies related to any acquisitions, mergers and other
business combinations, divestitures, restructurings, or other initiatives after the Closing Date, in each case projected by the Borrower
in good faith to be realized as the result of actions taken or with respect to which substantial steps have been taken (in the good faith
determination of the Borrower) within 1824
months after such transaction or initiative is consummated, net of the amount of actual benefits realized during such period from such
actions, provided that (A) such “run rate” cost savings, expense reductions, operating
enhancements, improvements and synergies are reasonably identifiable and factually supportable (in the good faith determination
of the Borrower) and certified by the chief financial officer or other Responsible Officer of the Borrower, and
(B) the aggregate amount of “run rate” cost savings, expense reductions, operating
enhancements, improvements and synergies added back pursuant to this clause (vi) for any applicable period (I)
shall not exceed 10% of EBITDA for such period and (II) when combined with any amounts
added back pursuant to clause (v) above and clause (vii) below for such period, shall not exceed 2015%
of EBITDA for such period (beforecalculated
after giving effect to any amounts added backadjustment
pursuant to this clause (vi) and such clauses (v) and (vii), but without giving effect to any proviso
contained in this clause (vi) or such clauses (v) and (vii)))
and (C) any such operating enhancements attributable to facilities may only be added to EBITDA to the extent Consolidated Net Income
attributable to such facilities has been realized in one or more Fiscal Quarters, the run-rate effect of which may be added to EBITDA
for the other Fiscal Quarters in the relevant Computation Period, (vii) except to the extent added back pursuant to the foregoing
clause (iv), restructuring charges, accruals or reserves (including restructuring and integration costs related to acquisitions and adjustments
to existing reserves), whether or not classified as a restructuring expense on the consolidated financial statements, provided that the
aggregate amount of restructuring charges, accruals or reserves added back pursuant to this clause (vii) for any applicable period (A)
shall not exceed 10% of EBITDA for such period and (B) when combined with any amounts
added back pursuant to clauses (v) and (vi) above for such period, shall not exceed 2015%
of EBITDA for such period (beforecalculated
after giving effect to any amounts added backadjustment
pursuant to this clause (vii) and such clauses (v) and (vi), but without giving effect to any proviso
contained in this clause (vii) or such clauses (v) and (vi)),),
(viii) non-controlling or minority interest expense consisting of income attributable to third parties in non-wholly owned subsidiaries,
(ix) accruals, payments, fees, costs, charges and expenses with respect to any transaction not prohibited by this Agreement, including,
without limitation, permitted dispositions, investments, issuance of equity interests or indebtedness, amendments to indebtedness or
early extinguishment of indebtedness, hedging agreements or other derivative instruments, in each case whether or not consummated, (x)
earn-out and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments thereof
and purchase price adjustments, in each case in connection with acquisitions or Investments, (xi) losses or discounts on sales of receivables
and related assets in connection with any receivables financings and,
(xii) except to the extent added back pursuant to the foregoing clause (iv),
any non-cash lease expense recognized during the period relating to the fair value adjustments to lease liabilities and lease right-of-use
assets in conjunction with acquisitions, (xiii) for any Computation Period including the Fiscal Quarter ended November 30, 2024,
an amount equal to the one-time charge of $55,599,653 payable by the Borrower pursuant to (x) that certain Non-Prosecution Agreement,
dated December 19, 2024, between the Borrower and the U.S. Department of Justice, and (y) that certain Cease-and-Desist Order, dated
December 19, 2024, issued by the SEC and (xiv) adjustments or additions
reflected in (I) the Quality of Earnings report of KPMG LLP, dated as of June 25, 2026, (II) the Quality of Earnings report of KPMG LLP,
dated as of August 20, 2026, and (III) any other quality of earnings report prepared by any accounting firm of nationally recognized
standing as determined by the Borrower in good faith, which determination shall be conclusive (it being understood that any “Big
Four” accounting firms are of nationally recognized standing). EBITDA shall be calculated on a pro forma basis to give effect
to (a) any Acquisition by the Borrower or any of its Restricted Subsidiaries consummated at any time on or after the first day of a Computation
Period as if such Acquisition had been consummated on the first day of such Computation Period and (b) any Disposition or discontinuance
of operations by the Borrower or any of its Restricted Subsidiaries consummated at any time on or after the first day of a Computation
Period as if such Disposition or discontinuance had been consummated on the first day of such Computation Period.
14
“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 credit institution or investment firm established
in an EEA Member Country.
“Eligible Assignee”
means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii) and (v) (subject to such
consents, if any, as may be required under Section 10.06(b)(iii)).
“Environmental Claim”
means all claims, however asserted, by any governmental, regulatory or judicial authority or other Person alleging potential liability
or responsibility for violation of any Environmental Law, or for release or injury to the environment.
“Environmental Laws”
means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, interpretations, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection
of human health and safety, the environment and natural resources or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
“Environmental Liability”
means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties
or indemnities), of the Borrower or any of its Subsidiaries directly or indirectly resulting from or based upon (a) violation of
any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials,
(c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment
or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
15
“Equity Interests”
means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all
of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership
or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other
ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such
shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or
trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b)
or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of
the Code).
“ERISA Event”
means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate from
a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer”
as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification
that a Multiemployer Plan is insolvent; (d) the filing of a notice of intent to terminate or the treatment of a Pension Plan amendment
as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension
Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan
in endangered or critical status within the meaning of Sections 430 or 432 of the Code or Sections 303 or 305 of ERISA; or
(h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007
of ERISA, upon the Borrower or any ERISA Affiliate.
“Erroneous Payment”
has the meaning specified in Section 9.13(a).
“Erroneous Payment
Deficiency Assignment” has the meaning specified in Section 9.13(bd).
“Erroneous Payment
Impacted Class” has the meaning specified in Section 9.13(b)
“Erroneous Payment
Return Deficiency” has the meaning specified in Section 9.13(bd).
“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.
“Event of Default”
has the meaning specified in Section 8.01.
“Exchange Act”
means the Securities Exchange Act of 1934.
16
“Excluded Subsidiaries”
means any Unrestricted Subsidiary, any Regulated Subsidiary, any not-for-profit Subsidiary, any FSHCO, any non-wholly owned Subsidiary,
any Subsidiary with respect to which the Borrower reasonably determines that the cost or other consequences of providing a Guarantee
(including any adverse tax consequences) would be excessive in view of the benefits to be obtained by the Lenders therefrom, any Domestic
Subsidiary of a Foreign Subsidiary that is a CFC and any Subsidiary that is prohibited, but only so long as such Subsidiary would be
prohibited, by applicable law, rule or regulation or by any contractual obligation existing on the Amendment No. 1 Effective Date or
existing at the time of acquisition thereof after the Amendment No. 1 Effective Date (so long as such prohibition did not arise as part
of such acquisition), in each case, from guaranteeing the Obligations or that would require governmental (including regulatory) consent,
approval, license or authorization to provide a Guarantee unless such consent, approval, license or authorization has been received (but
without obligation to seek the same), any captive insurance company and any special purpose entity.
“Excluded Swap Obligation”
means, with respect to any Guarantor, any Swap Obligation if, and only to the extent that, all or a portion of the guaranty of such Guarantor
of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal
under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or
official interpretation of any thereof), including by virtue of such Guarantor’s failure for any reason to constitute an “eligible
contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such
Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises
under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is
attributable to swaps for which such guaranty or security interest is or becomes illegal.
“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment made by or on account
of any obligation of the Borrower hereunder or under any other Loan Document, (a) Taxes imposed on or measured by its net income
(however denominated), and franchise Taxes imposed on it (in lieu of net income Taxes), by the jurisdiction (or any political subdivision
thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender,
in which its applicable Lending Office is located, (b) any branch profits Taxes imposed by the United States or any similar Tax
imposed by any other jurisdiction in which the Borrower is located, (c) any backup withholding Tax that is required by the Code
to be withheld from amounts payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii), (d) in
the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 10.13), any United
States federal withholding Tax that (i) is imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the
time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s
failure or inability (other than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled, immediately before the designation of a new Lending Office
(or assignment), to receive additional amounts from the Borrower with respect to such withholding Tax pursuant to Section 3.01(a)(ii)
or (c), and (e) any United States withholding Tax imposed pursuant to FATCA.
“Existing Credit
Agreement” means that certain Credit Agreement, dated as of April 12, 2011, among AAR Corp., the lenders from time to time
party thereto and Bank of America, N.A., as amended from time to time.
“Existing Letters
of Credit” means those letters of credit set forth on Schedule 2.04(b) which shall be deemed to have been issued pursuant
to the terms and conditions hereof and shall constitute Letters of Credit hereunder.
17
“Fair Market Value”
means, at any time and with respect to any property, the sale value of such property that would be realized in an arm’s-length
sale at such time between an informed and willing buyer and an informed and willing seller (neither being under a compulsion to buy or
sell).
“Fall-Away
Covenants” has the meaning specified in Section 7.14(a).
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted
pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the
Code.
“Federal Funds Rate”
means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members
of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided
that if such rate is not so published for any day which is a Business Day, the Federal Funds Rate for such day shall be the average of
the quotation for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing
selected by the Administrative Agent. Notwithstanding the foregoing, if the Federal Funds Rate shall be less than zero, such rate shall
be deemed to be zero for purposes of this Agreement.
“Fee Letter”
means the amended and restated letter agreement, dated as of the date hereof, among the Borrower, the Administrative Agent and the Arranger.
“First
Covenant Date” means the last day of the first Fiscal Quarter ending at least nine (9) months after the Uplift Closing Date.
“Fiscal Quarter”
means a fiscal quarter of a Fiscal Year.
“Fiscal Year”
means the fiscal year of the Borrower and its Subsidiaries, which period shall be the 12-month period ending on May 31st of each year.
References to a Fiscal Year with a number corresponding to any calendar year (e.g., “Fiscal Year 2022”) refer to the Fiscal
Year ending on May 31st of such calendar year.
“Fitch”
means Fitch Ratings or any of its successors or assigns that is a nationally recognized statistical rating organization within the meaning
of Rule 3(a)(62) under the Exchange Act.
“Fixed Amounts”
shall have the meaning assigned to such term in Section 1.09(b).
“Floor”
means a rate of interest equal to 0.00%.
“Foreign Lender”
means a Lender that is not a U.S. Person.
“Foreign Subsidiary”
means any Subsidiary that is organized under the laws of a jurisdiction other than the United States, any state thereof or the District
of Columbia.
“Fourth
Covenant Date” means the last day of the first Fiscal Quarter ending at least eighteen (18) months after the Uplift Closing Date.
18
“FRB” means
the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure”
means, at any time there is a Defaulting 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 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 Defaulting
Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“FSHCO”
means (i) any Domestic Subsidiary that has no material assets other than Equity Interests (or Equity Interests and indebtedness) of one
or more Foreign Subsidiaries that are CFCs and (ii) any Domestic Subsidiary that has no material assets other than Equity Interests (or
Equity Interests and indebtedness) of one or more Foreign Subsidiaries that are CFCs and/or, directly or indirectly, in one or more other
entities described in clause (i) of this definition.
“Fund”
means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its activities.
“GAAP”
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 or any other nation, or of any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).
“Guarantee”
means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Debt or other obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such Debt or other obligation of the payment or performance of such Debt
or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or
level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Debt or other obligation, or (iv) entered
into for the purpose of assuring in any other manner the obligee in respect of such Debt or other obligation of the payment or performance
thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person
securing any Debt or other obligation of any other Person, whether or not such Debt or other obligation is assumed by such Person (or
any right, contingent or otherwise, of any holder of such Debt to obtain any such Lien). The amount of any Guarantee shall be deemed to
be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by
the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
19
“Guarantors”
means, collectively, each existing and future direct and indirect Significant Subsidiary that is a Domestic Subsidiary and each other
Domestic Subsidiary that from time to time shall upon the request of the Borrower become a party to the Guaranty; provided that
in no event shall any Excluded Subsidiary be a Guarantor.
“Guaranty”
means the Guaranty made by the Guarantors in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit G.
“Hazardous Materials”
means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum
or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Hedging Agreement”
means any interest rate, currency or commodity swap agreement, cap agreement or collar agreement, and any other agreement or arrangement
designed to protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices.
“Hedging Obligation”
means, with respect to any Person, any liability of such Person under any Hedging Agreement.
“Hedging Termination
Value” means, in respect of any one or more Hedging Agreements, after taking into account the effect of any legally enforceable
netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging 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 Hedging Agreements, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender
or any Affiliate of a Lender).
“Impacted Loans”
has the meaning specified in Section 3.03(a).
“Incurrence-Based
Amounts” shall have the meaning assigned to such term in Section 1.09(b).
“Indemnified Taxes”
means Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower
hereunder or under any other Loan Document.
“Indemnitees”
has the meaning specified in Section 10.04(b).
“Information”
has the meaning specified in Section 10.07.
“Interest Coverage
Ratio” means, for any Computation Period, the ratio of (a) the total for such period of EBITDA for the Borrower and its Restricted
Subsidiaries to (b) the total for such period of required payments of cash Interest Expense by the Borrower and its Restricted Subsidiaries.
“Interest Expense”
means for any period the consolidated net interest expense of the Borrower and its Restricted Subsidiaries for such period (including
all imputed interest on Capital Leases).
20
“Interest Payment
Date” means, (a) as to any Loan other than a Base 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 SOFR Loan exceeds three months, the respective
dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to
any Base Rate Loan (including a Swing Line Loan), the last Business Day of each calendar month and the Maturity Date.
“Interest Period”
means, as to each SOFR Loan, the period commencing on the date such SOFR Loan is disbursed or (in the case of any SOFR Committed Loan)
converted to or continued as a SOFR Loan and ending on the date one, three or six months thereafter, as selected by the Borrower in its
Committed Loan Notice; provided that:
(i) 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,
in the case of a SOFR Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next
preceding Business Day;
(ii) any
Interest Period pertaining to a SOFR Loan 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
(iii) no
Interest Period shall extend beyond the Maturity Date.
“Investment”
means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or
other acquisition of Equity Interest of another Person, (b) a loan, advance or capital contribution to, or Guarantee or assumption
of Debt of, another Person or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“Investment
Grade Rating” means a corporate family/corporate credit rating equal to or higher than Baa3 (or the equivalent) by Moody’s,
BBB- (or the equivalent) by S&P, or BBB- (or the equivalent) by Fitch.
“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).
“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 Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.
“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.
21
“L/C Advance”
means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable
Percentage.
“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 Committed Borrowing.
“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 Wells Fargo, Bank of America, N.A., PNC Bank, National Association, CIBC Bank USA or another Lender designated by the Borrower and
approved by the Administrative Agent, 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 aggregate amount available to be drawn under all outstanding Letters of Credit plus
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.
“LCT Election”
shall have the meaning assigned to such term in Section 1.09(a).
“LCT Test Date”
shall have the meaning assigned to such term in Section 1.09(a).
“Lender”
has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lender.
“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 Borrower and the Administrative Agent.
“Letter of Credit”
means any commercial letter of credit or any standby letter of credit issued hereunder and shall include the Existing Letters of Credit.
“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 seven 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 2.04(h).
“Letter of Credit
Sublimit” means an amount equal to $80,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
“Letter of Credit
Sublimit Amount” means, with respect to each L/C Issuer, the commitment of such L/C Issuer to issue Letters of Credit hereunder.
The initial amount of each L/C Issuer’s Letter of Credit Sublimit Amount is set forth on Schedule 2.04(a), or if an L/C Issuer
has entered into an Assignment and Assumption or has otherwise assumed a Letter of Credit Sublimit Amount after the Closing Date, the
amount set forth for such L/C Issuer as its Letter of Credit Sublimit Amount in the Register maintained by the Administrative Agent. The
Letter of Credit Sublimit Amount of an L/C Issuer may be modified from time to time by agreement between such L/C Issuer and the Borrower,
and notified to the Administrative Agent.
22
“Limited Condition
Acquisition” shall mean any acquisition (including by means of a merger, amalgamation or consolidation) of, or Investment by
one or more of the Borrower and its Subsidiaries (other than intercompany Investments) in, any assets, business or Person the consummation
of which is not conditioned on the availability of, or on obtaining, third-party financing.
“Limited Condition
Transaction” shall mean any (a) Limited Condition Acquisition, (b) redemption or repayment of Debt requiring irrevocable advance
notice or any irrevocable offer to purchase Debt or (c) any declaration of a distribution or dividend in respect of, or irrevocable advance
notice of, or any irrevocable offer to, purchase, redeem or otherwise acquire or retire for value, any Equity Interests of the Borrower
or any Restricted Subsidiary.
“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property,
and any financing lease having substantially the same economic effect as any of the foregoing).
“Loan”
means an extension of credit by a Lender to the Borrower under Article II in the form of a Committed Loan or a Swing Line
Loan.
“Loan Documents”
means this Agreement, including schedules and exhibits hereto, each Note, each Issuer Document, any agreement creating or perfecting rights
in Cash Collateral pursuant to the provisions of Section 2.17 of this Agreement, the Fee Letter, the Guaranty and any amendments,
modifications or supplements hereto or to any other Loan Document or waivers hereof or to any other Loan Document.
“Loan Parties”
means, collectively, the Borrower and each Guarantor.
“LTM EBITDA”
means, as of any date of determination, consolidated EBITDA for the Borrower and its Restricted Subsidiaries, determined on a pro forma
basis, for the four Fiscal Quarter period then most recently ended for which a Compliance Certificate has been delivered pursuant to Section
6.01(c).
“Material”
means material in relation to the business, operations, affairs, financial condition, assets, properties or prospects of the Borrower
and its Restricted Subsidiaries taken as a whole.
“Material Adverse
Effect” means (a) a material adverse change in, or a material adverse effect upon, the financial condition, operations,
assets, business, or properties of the Borrower and its Restricted Subsidiaries taken as a whole; (b) a material impairment of the
ability of the Borrower to perform any of the obligations under any Loan Document to which it is a party; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party.
“Maturity Date”
means December 14, 2027October
23, 2031; provided, however, that if such date is not a Business Day, the Maturity Date shall be the next preceding
Business Day.
23
“Moody’s”
means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Multiemployer Plan”
means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“Multiple Employer
Plan” means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two
of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“Net Proceeds Amount”
means, with respect to any Transfer of any property by any Person, an amount equal to the difference of (a) the aggregate amount of the
consideration (valued at the Fair Market Value of such consideration at the time of the consummation of such Transfer) received by such
Person in respect of such Transfer, minus (b) all ordinary and reasonable out-of-pocket costs and expenses actually incurred by such Person
in connection with such Transfer.
“Non-Consenting Lender”
has the meaning specified in Section 10.13.
“Nonrecourse Debt”
means any Debt of any Person which, by the terms thereof, does not represent a claim against any general assets or revenues of such Person
other than the specific assets that are subject to a Lien securing such Debt.
“Note”
means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit D.
“Notice of Committed
Loan Prepayment” means a notice of prepayment with respect to a Committed Loan, which shall be in such 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 a Responsible Officer.
“Obligations”
means all obligations (monetary (including post-petition interest, allowed or not) or otherwise) of the Borrower and other Loan Parties
under this Agreement and any other Loan Document including Attorney Costs and any reimbursement obligations of the Borrower in respect
of Letters of Credit and surety bonds, all Hedging Obligations permitted hereunder which are owed to any Lender or its Affiliate or the
Administrative Agent, and all Bank Products Obligations, all in each case howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due, provided that the Obligations shall exclude any Excluded
Swap Obligations.
“OFAC”
means the U.S. Department of the Treasury’s Office of Foreign Assets Control, and any successor thereto.
“Operating Leases”
means any lease of (or other agreement conveying the right to use) any real or personal property by the Borrower or any Restricted Subsidiary,
as lessee, other than any Capital Lease.
24
“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 Taxes”
means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes arising from any payment made
hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement
or any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an
assignment pursuant to a request by the Borrower under Section 10.13).
“Outstanding Amount”
means (i) with respect to Committed Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be, occurring on
such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date 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 Borrower of Unreimbursed Amounts.
“Overnight Rate”
means, for any day, the greater of (a) the Federal Funds Rate and (b) an overnight rate determined by the Administrative Agent 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).
“Payment Recipient”
has the meaning specified in Section 9.13(a).
“PBGC”
means the Pension Benefit Guaranty Corporation.
“Pension Plan”
means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed
to by the Borrower or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Code.
“Periodic Term SOFR
Determination Day” has the meaning assigned thereto in the definition of “Term SOFR”.
25
“Permitted Receivables
Transactions” means any sale of notes or accounts receivable by the Borrower or a Restricted Subsidiary so long as such sale
constitutes a “true sale” under GAAP and recourse to the Borrower and its Restricted Subsidiaries in connection with such
sale is limited to (a) the retained portion of the notes or accounts receivable or (b) such other recourse as the Borrower determines
in good faith (which determination shall be conclusive) is customary or otherwise necessary or advisable in connection with such transaction.
“Person”
means any natural person, corporation, firm, joint venture, partnership, limited liability company, association, enterprise, trust or
other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof.
“Plan”
means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees
of the Borrower or any ERISA Affiliate or any such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf
of any of its employees.
“Platform”
has the meaning specified in Section 10.02(b).
“Preferred
Stock” means any Equity Interest with preferential right of payment of dividends or upon liquidation, dissolution or winding up.
“Prime Rate”
means, at any time, the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate.
Each change in the Prime Rate shall take effect at the opening of business on the day specified in the public announcement of such change.
The parties hereto acknowledge that the rate announced publicly by the Administrative Agent as its prime rate is an index or base rate
and shall not necessarily be its lowest or best rate charged to its customers or other banks.
“Principal
Property Subsidiary” means any Subsidiary that owns, operates or leases one or more Restricted Properties.
“Property Reinvestment
Application” means, with respect to any Transfer of property, the application of an amount equal to the Net Proceeds Amount
with respect to such Transfer to acquire, develop or maintain assets used in the ordinary course of the Borrower’s or Restricted
Subsidiaries’ business.
“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.
“Rating
Agency” means each of Moody’s, S&P and Fitch.
“Recipient”
means the Administrative Agent, any Lender and any L/C Issuer, as applicable.
“Register”
has the meaning specified in Section 10.06(c).
“Regulated Subsidiary”
means any entity that is subject to United States or foreign, federal, state or local regulation over its ability to incur IndebtednessDebt
or create Liens (including Liens with respect to its own Equity Interests).
“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and
advisors of such Person and of such Person’s Affiliates.
“Relevant Governmental
Body” means the FRB or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the FRB or the
Federal Reserve Bank of New York, or any successor thereto.
26
“Reportable Event”
means any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the
30-day notice period has been waived.
“Request for Credit
Extension” means (a) with respect to a Borrowing, conversion or continuation of Committed Loans, a Committed 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, not less than three Lenders having more than 50% of the Aggregate Commitments or, if the commitment
of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section
8.02, not less than three Lenders holding in the aggregate more than 50% of the Total Outstandings (with the aggregate amount of each
Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by
such Lender for purposes of this definition); provided that the Commitment of, and the portion of the Total Outstandings held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Resolution Authority”
means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”
means the chief executive officer, the chief financial officer, the president and chief operating officer, the chief accounting officer,
the treasurer or the assistant treasurer of a Loan Party and solely for purposes of the delivery of incumbency certificates pursuant
to Section 4.01, the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant
to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice
to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between
the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a
Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the
part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity
Interest of the Borrower 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 such capital
stock or other Equity Interest, or on account of any return of capital to the Borrower’s stockholders, partners or members (or the
equivalent Person thereof).
27
“Restricted
Property” means (a) any manufacturing facility, or portion thereof, owned or leased by the Borrower or any of its Restricted
Subsidiaries and located within the United States, which, in the opinion of the board of directors of the Borrower, is of material importance
to the business of the Borrower and its Restricted Subsidiaries taken as a whole, but no such manufacturing facility, or portion thereof,
shall be deemed of material importance if its gross book value (before deducting accumulated depreciation) is less than 10% of the Consolidated
Assets of the Borrower and its Restricted Subsidiaries as set forth on the most recent internally available consolidated balance sheet
of the Borrower and its Restricted Subsidiaries, after eliminating all amounts properly attributable to minority interests, if any, in
the stock and surplus of Restricted Subsidiaries, or (b) any shares of Equity Interests of any Subsidiary owning any such manufacturing
facility. As used in this definition, “manufacturing facility” means property, plant and equipment used for actual manufacturing,
refurbishment or conversion, such as quality assurance, engineering, technical support, service, maintenance, refurbishment, conversion,
staging area for work in process materials, employees’ eating and comfort facilities and manufacturing administration, and it excludes
sales offices, research facilities and facilities used only for warehousing or general administration.
“Restricted Subsidiary”
means each Subsidiary of the Borrower other than an Unrestricted Subsidiary.
“Restricted Subsidiary
Stock” means, with respect to any Person, the stock (or any options or warrants to purchase stock or other Equity Interests
exchangeable for or convertible into stock) of any Restricted Subsidiary of such Person.
“Reversion
Date” has the meaning specified in Section 7.14(a).
“S&P”
means S&P Global Ratings (a division of S&P Global Inc.) or any successor to the rating agency business thereof.
“Sanctioned Country”
means, at any time, any country or territory which is itself the subject or target of any comprehensive Sanctions.
“Sanctioned Person”
means, at any time, (a) any Person or group listed in any Sanctions-related list of designated Persons maintained by OFAC or the
U.S. Department of State, the United Nations Security Council, the European Union or any EU member state, (b) any Person or group operating,
organized or resident in a Sanctioned Country, (c) any agency, political subdivision or instrumentality of the government of a Sanctioned
Country, or (d) any Person owned or Controlled, directly or indirectly, by any of the above.
“Sanctions”
means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government,
including those administered by OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union or
HerHis Majesty’s
Treasury of the United Kingdom.
“SEC” means
the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“SEC Filings”
means, as at any date, the Borrower’s Annual Report on Form 10-K prepared in compliance with the requirements therefor and filed
with the SEC most recently prior to such date, and all of the Borrower’s Quarterly Reports on Forms 10-Q and/or other reports, including
on Form 8-K, in each case prepared in compliance with the requirements therefor and filed with the SEC since the date of such Form 10-K
filing.
“Second
Covenant Date” means the last day of the first Fiscal Quarter ending at least twelve (12) months after the Uplift Closing Date.
“Senior Notes”
means any series of senior unsecured notes issued under the Senior Notes Indenture.
“Senior Notes Indenture”
means that certain Indenture of the Borrower, dated as of March 1, 2024 (including any supplemental indenture relating thereto or in respect
thereof).
28
“Significant Subsidiary”
means at any time any Restricted Subsidiary which accounts for more than (i) 10% of the Consolidated Assets of the Borrower and its Restricted
Subsidiaries as of the last day of the most recently ended four Fiscal Quarter Period for which a Compliance Certificate has been delivered
pursuant to Section 6.01(c) or (ii) 10% of the consolidated revenue of the Borrower and its Restricted Subsidiaries for the four
Fiscal Quarter period then most recently ended for which a Compliance Certificate has been delivered pursuant to Section 6.01(c);
provided, however, that if no single Restricted Subsidiary qualifies as a Significant Subsidiary under clauses (i) or (ii),
but two or more Restricted Subsidiaries, when taken together, account for more than 10% of the Consolidated Assets or the consolidated
revenue of the Borrower and its Restricted Subsidiaries (determined as provided above), then the Borrower shall designate Restricted Subsidiaries
as Significant Subsidiaries until the remaining Restricted Subsidiaries that have not been so designated account, on an
a combined basis, for less than 10% of Consolidated Assets and consolidated revenue for the Borrower and all of the Restricted
Subsidiaries (determined as provided above).
“SOFR”
means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator”
means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Committed Loan”
means a Committed Loan that bears interest at a rate based on Adjusted Term SOFR.
“SOFR Loan”
means a SOFR Committed Loan.
“Specified Acquisition”
has the meaning specified in Section 7.13(b).
“Subordinated Debt”
means any Debt of the Borrower that is (i) junior and subordinate in right of payment to the Loans and other Obligations pursuant to subordination
provisions that have been approved in writing by the Required Lenders and (ii) has a final maturity no earlier than any of the Loans and
a weighted average life to maturity (determined in accordance with standard financial practice) that is no shorter than any of the Loans.
“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of
the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned by
such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer
to a Subsidiary or Subsidiaries of the Borrower.
“Suspension
Period” has the meaning specified in Section 7.14(a).
“Swap Obligation”
means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a
“swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swing Line Borrowing”
means a borrowing of a Swing Line Loan pursuant to Section 2.05.
“Swing Line Lender”
means Wells Fargo 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 2.05(a).
29
“Swing Line Loan
Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.05(b), which, if in writing, shall be substantially
in the form of Exhibit C or such other form as approved by the Administrative Agent (including any form on an electronic platform
or electronic transmissions system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible
Officer of the Borrower.
“Swing Line Sublimit”
means an amount equal to the lesser of (a) $35,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part of,
and not in addition to, the Aggregate Commitments.
“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 SOFR”
means,
(a) for
any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on
the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business
Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however,
that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable
tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate
has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the
first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term
SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government
Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for
any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day,
the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such
day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City
time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the
Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR
will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government
Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as
such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior
to such Base Rate Term SOFR Determination Day.
30
“Term
SOFR Adjustment” means a percentage equal to 0.10% per annum, as such percentage may be reduced from time to
time pursuant to the immediately succeeding proviso; provided that, if at any time, and from
time to time, after the Closing Date the Borrower notifies (which notification shall identify the applicable Subject Agreements (as defined
below)) the Administrative Agent that a minimum of ten (10) publicly filed credit agreements (x) for pro rata credit facilities with an
aggregate facility size no less than $650,000,000 per agreement, and (y) for borrowers with corporate family ratings of no greater than
Ba1 from Moody’s or BB+ from S&P (or the equivalent prevailing ratings) at the time such agreements are entered into (1) have
eliminated or do not include the application of credit spread adjustments for loans thereunder based on a Term SOFR benchmark or (2) have
implemented a credit spread adjustment below the then applicable Term SOFR Adjustment (any such agreements, in each case under the foregoing
clause (1) or (2), the “Subject Agreements”), then the Administrative Agent shall
promptly notify the Lenders of (and specify) such Subject Agreements (such notification to Lenders, the “Term
SOFR Adjustment Notification”) and, so long as the Administrative Agent has not received written notice of
objection to the Subject Agreements from Lenders comprising Required Lenders (any such objection notice shall specify the applicable Subject
Agreement(s) and set forth in reasonable detail the reasons such Lenders believe any applicable Subject Agreements do not meet the criteria
set forth in the immediately preceding clauses (x) and (y)) within five (5) Business Days after the date of such Term SOFR Adjustment
Notification, the Administrative Agent and the Borrower shall reduce (and the Lenders hereby authorize and consent to such reduction)
the Term SOFR Adjustment to 0.00% (or such other percentage to which the Term SOFR Adjustment may be reduced pursuant to the immediately
preceding clause (y)(2), as the case may be) for all tenors with respect to Base Rate Loans and SOFR Loans hereunder on the seventh (7th)
Business Day after the date of such Term SOFR Adjustment Notification. If Lenders comprising Required Lenders have objected to one or
more Subject Agreements, the Administrative Agent shall promptly notify the Lenders thereof and the Borrower may submit a revised Term
SOFR Adjustment Notification with additional or replacement Subject Agreements, which revised Term SOFR Adjustment Notification shall
be subject to the procedures set forth above. Notwithstanding anything set forth herein, the Administrative Agent shall not be responsible
or have any liability for, or have any duty to ascertain, inquire into, or monitor publicly filed credit agreements to determine whether
any credit agreements meet the criteria set forth above for Subject Agreements.
“Term SOFR Administrator”
means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative
Agent and reasonably acceptable to the Borrower).
“Term SOFR Reference
Rate” means the forward-looking term rate based on SOFR.
“Third
Covenant Date” means the last day of the first Fiscal Quarter ending at least fifteen (15) months after the Uplift Closing Date.
“Total Debt”
means all Debt (other than Nonrecourse Debt) of the Borrower and its Restricted Subsidiaries, determined on a consolidated basis, excluding
(a) Contingent Liabilities in respect of Debt of the Borrower or any Restricted Subsidiary, (b) Hedging Obligations, and
(c) any earn-out or similar obligations until such obligation
becomes a liability on the consolidated balance sheet of the Borrower in accordance with GAAP and is not paid within 60 days after becoming
due and payable, (d) Debt of the Borrower to Restricted Subsidiaries and Debt of Restricted Subsidiaries to the Borrower or to
other Restricted Subsidiaries (including all offsetting debits and credits between the Borrower and the Restricted Subsidiaries and all
other items required to be eliminated in the course of preparing consolidated financial statements for the Borrower and the Restricted
Subsidiaries in accordance with GAAP).,
(e) prior to the Uplift Closing Date, the proceeds of the Uplift Notes, Uplift Bridge Facility, or any Debt incurred in lieu thereof,
in each case, funded into escrow prior to the Uplift Closing Date and (f) any Debt or other obligations under or in respect of any Permitted
Receivables Transaction.
“Total Outstandings”
means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
31
“Transfer”
means, with respect to any Person, any transaction in which such Person sells, conveys, transfers or leases (as lessor) any of its property,
including Restricted Subsidiary Stock. For purposes of determining the application of the Net Proceeds Amount in respect of any Transfer,
the Borrower may designate any Transfer as one or more separate Transfers each yielding a separate Net Proceeds Amount. In any such case,
the Disposition Value of any property subject to each such separate Transfer shall be determined by ratably allocating the aggregate Disposition
Value of all property subject to all such separate Transfers to each such separate Transfer on a proportionate basis.
“Triumph Acquisition”
has the meaning specified in Amendment No. 1.
“Triumph Acquisition
Agreement” has the meaning specified in Amendment No. 1.
“Triumph Escrow Merger”
has the meaning specified in the definition of “Unrestricted Subsidiary”.
“Triumph Transactions”
means (a) the Triumph Acquisition, (b) the other transactions to occur pursuant to or in connection with the Triumph Acquisition Agreement,
(c) the Triumph Escrow Merger and (d) the payment of all fees and expenses to be paid and owing in connection with the foregoing.
“Type”
means with respect to a Committed Loan, its character as a Base Rate Loan or a SOFR Loan.
“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 falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated
by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates
of such credit institutions or investment firms.
“UK Resolution Authority”
means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark
Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Uncalled
Default” has the meaning specified in Section 8.01.
“Unfunded Liability”
means the amount (if any) by which the present value of all vested and unvested accrued benefits under all Pension Plans exceeds the fair
market value of all assets allocable to those benefits, all determined as of the then most recent valuation date for each Pension Plan,
based on the actuarial assumptions currently being used for funding each Pension Plan on an on-going basis.
“United States”
and “U.S.” mean the United States of America.
“Unreimbursed Amount”
has the meaning specified in Section 2.04(c)(i).
32
“Unrestricted Cash”
means, on any date, that portion of the Borrower’s and its domestic Restricted
Subsidiaries’ cash and Cash Equivalent Investments held with any Lender that is
not encumbered by or subject to any Lien (including Liens permitted hereunder), setoff (other than ordinary course setoff rights of a
depository bank arising under a bank depository agreement for customary fees, charges and other account-related expenses due to such depository
bank thereunder), counterclaim, recoupment, defense or other right in favor of any Person.;
provided that, to the extent such cash or Cash Equivalent Investments are held outside the United States, such cash and Cash Equivalent
Investments are not restricted in any manner from being repatriated to the United States by applicable Law, regulation, contractual obligation
or organizational document as paid-in capital and/or surplus reserve of the Borrower and its Subsidiaries (and would be fully available
to the Borrower and its Domestic Subsidiaries upon such repatriation); provided further that, from and after that date that is thirty
(30) months after the Uplift Closing Date, to the extent that cash and Cash Equivalent Investments is held by a non-Wholly-Owned Restricted
Subsidiary, Unrestricted Cash shall include only a percentage of such cash and Cash Equivalent Investments equal to the percentage of
the Equity Interests the Borrower directly or indirectly holds in such non-Wholly-Owned Restricted Subsidiary.
“Unrestricted Subsidiary”
means each of AAR Aircraft & Engine Sales & Leasing, Inc., each Subsidiary thereof (the “AAR AESL Group”),
AAR International Financial Services, L.L.C., each Subsidiary thereof (the “AAR IFS Group”), AAR Airlift Group, Inc.,
each Subsidiary thereof (the “AAR Airlift Group”), AAR Escrow Issuer, LLC, a Delaware limited liability company, and
each other Subsidiary of the Borrower designated as such in a written notice to the Administrative Agent and the Lenders by the Borrower;
provided, however, that (i) no such designation shall take effect until the receipt of such notice by the Administrative
Agent and the Lenders, (ii) no such designation shall be made if a Default or Event of Default would result therefrom, and (iii) no such
designation shall be made without the Required Lenders’ prior written consent if, after giving effect to such designation or
series of related designations on a pro forma basis, EBITDA for the Borrower and the Restricted Subsidiaries, on a consolidated
basis, would be reduced by more than 10% of consolidated EBITDA for the Borrower and the Restricted Subsidiaries for the four Fiscal Quarter
period immediately preceding the Fiscal Quarter in which such designation or
series of related designations is made. If at any time a Subsidiary that is designated as an Unrestricted Subsidiary represents
(i) more thatthan
10% of the consolidated assets of the Borrower and its Subsidiaries or (ii) more than 10% of the consolidated revenue of the Borrower
and its Subsidiaries, such Unrestricted Subsidiary shall automatically be redesignated as a Restricted Subsidiary; provided, however,
that this sentence shall not apply to any Subsidiary that is a part of the AAR AESL Group, the AAR IFS Group or the AAR Airlift Group.
Effective as of the Amendment No. 1 Effective Date and substantially concurrently with the Triumph Transactions, AAR Escrow Issuer, LLC,
a Delaware limited liability company, shall be merged with and into the Borrower (the “Triumph Escrow Merger”) and
shall cease to constitute an Unrestricted Subsidiary hereunder.
“Uplift
Acquiror” means a wholly owned Foreign Subsidiary of the Borrower to be formed in connection with the Uplift Acquisition for purposes
of initially acquiring the applicable Equity Interests in the Uplift Company and, following the Uplift Reorganization, holding the corresponding
Equity Interests in the Uplift JVCo.
“Uplift
Acquisition” has the meaning specified in Amendment No. 3.
“Uplift
Acquisition Agreement” has the meaning specified in Amendment No. 3.
“Uplift
Bridge Facility” means any senior unsecured credit facility pursuant to which the Borrower may incur bridge loans on or prior to
the Uplift Closing Date in an aggregate principal amount not to exceed $2,100,000,000 for the purpose of financing the Uplift Transactions.
“Uplift
Closing” means the “Closing” as defined in the Uplift Acquisition Agreement.
“Uplift
Closing Date” means the “Closing Date” as defined in the Uplift Acquisition Agreement.
33
“Uplift
Company” means MRO Holdings, Inc., a sociedad anónima organized under the laws of Panama, to be converted to a sociedad
de responsabilidad limitada pursuant to the Uplift Reorganization as contemplated by the Uplift Transactions, and any successor in
interest thereto, including by way of such conversion.
“Uplift
Intercompany Loan Agreement” means that certain credit agreement to be entered into on or prior to the Uplift Closing Date between
the Uplift Company, as borrower, and the Uplift Acquiror, as lender, pursuant to which term loans will be made available to the Uplift
Company to, among other things, consummate the repayment or refinancing of certain existing Debt of the Uplift Company and its Subsidiaries,
on the terms and subject to the conditions therein.
“Uplift
Intercompany Services Agreement” means the Intercompany Services Agreement to be entered into in connection with the Uplift Transactions
by and between the Borrower and the Uplift JVCo.
“Uplift
JVCo” means a Delaware limited liability company to be formed in connection with the Uplift Acquisition that will directly own the
Equity Interests in the Uplift Company following the Uplift Reorganization, and any successor in interest thereto.
“Uplift
LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of the Uplift JVCo to be entered into on or about
the Uplift Closing Date in connection with the Uplift Transactions among the Borrower (solely in the capacities contemplated therein),
the Uplift Acquiror and the other parties thereto.
“Uplift
Notes” means any series of secured or unsecured notes issued by the Borrower (which may be in the form of convertible notes) on
or prior to the Uplift Closing Date in an aggregate principal amount not to exceed $2,100,000,000 in lieu of all or any portion of the
Uplift Bridge Facility for the purpose of financing the Uplift Transactions.
“Uplift
Reorganization” means the contribution, substantially concurrently with or promptly following the Uplift Acquisition, by the Uplift
Acquiror and the Uplift Seller of their respective Equity Interests in the Uplift Company to the Uplift JVCo in exchange for Equity Interests
in the Uplift JVCo, together with the related pre-closing reorganization, entity conversion and tax election steps and other related corporate
restructuring steps effected in connection therewith.
“Uplift
Seller” means MROH Intermediate Holdco LLC, a Delaware limited liability company, and any successor in interest thereto.
“Uplift
Transactions” means, collectively, any or all of the following (whether taking place prior to, on or following the Uplift Closing
Date), (a) the entry into the Uplift Acquisition Agreement and the other Ancillary
Agreements (as defined therein), consummation of the transactions contemplated thereby, including the Uplift
Acquisition and the Uplift Reorganization, (b) the entry into the Uplift Intercompany Loan Agreement and consummation of the transactions
contemplated thereby, including the incurrence of Debt thereunder, (c) the entry into the Uplift LLC Agreement and the Uplift Intercompany
Services Agreement and the consummation of the transactions contemplated thereby, (d) the offer and issuance of the Uplift Notes, (e)
the entry into any Uplift Bridge Facility and incurrence of Debt thereunder, (f) the repayment or refinancing of certain existing Debt
of the Uplift Company and its Subsidiaries as contemplated by the Uplift Acquisition Agreement, (g) all other transactions pursuant to
or in connection with any of the foregoing and (h) the payment of all fees and expenses to be paid and owing in connection with the foregoing.
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“U.S. Government
Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry
and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes
of trading in United States government securities; provided, that for purposes of notice requirements related to advances, repayments
and notices of conversion/continuation of loans, such day is also a Business Day.
“U.S. Person”
means a “United States person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance
Certificate” has the meaning specified in Section 3.01(e).
“Wells Fargo”
means Wells Fargo Bank, N.A. and its successors.
“Wholly-Owned Restricted
Subsidiary” means a Restricted Subsidiary of the Borrower that is a Wholly-Owned Subsidiary.
“Wholly-Owned Subsidiary”
means, as to any Person, a Subsidiary all of the Equity Interests of which (except directors’ qualifying Equity Interests) are at
the time directly or indirectly owned by such Person and/or another Wholly-Owned Subsidiary of such Person.
“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 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 “hereto,”
“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, rule or regulation
shall, unless otherwise specified, refer to such law, rule 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.
35
(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) Any
reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar
term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited
liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation,
consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division
of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is
a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
1.03 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.
(b) Changes
in GAAP. If the Borrower notifies the Administrative Agent that the Borrower wishes to amend any covenant in Section 6 or Section
7.11 (or any related definition) to eliminate or to take into account the effect of any change in GAAP on the operation of such covenant
(or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend Section 6 or Section 7.13
(or any related definition) for such purpose), then the Borrower’s compliance with such covenant shall be determined on the basis
of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant
(or related definition) is amended in a manner satisfactory to the Borrower and the Required Lenders. Without limiting the foregoing,
leases shall continue to be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements
for purposes of calculating the financial covenants in Section 7.13, notwithstanding any change in GAAP relating thereto, unless
the parties hereto shall enter into a mutually acceptable amendment addressing such changes.
1.04 Rounding.
Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to three places 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 Times
of Day. Unless otherwise specified, all references herein to times of day shall be references to Central time (daylight or standard,
as applicable).
1.06 Letter
of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated
amount of such Letter of Credit in effect at such time; 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 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 and provided further that the amount of any
Letter of Credit and of any L/C Obligations with respect to any Letter of Credit issued in a currency other than Dollars is such amount
calculated on the basis of the arithmetical mean of the buy and sell spot rates of exchange of the Administrative Agent for such currency
on the London market at 11:00 a.m. London time on or as of the most recent date of computation of such amount by the Administrative Agent.
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1.07 Interest
Rates. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to,
(a) the continuation of, administration of, submission of, calculation of or any other matter related to the Term SOFR Reference Rate,
Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or with respect to
any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics
of any such alternative, successor or replacement rate (including any Benchmark Replacement), as it may or may not be adjusted pursuant
to Section 3.03(c), will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity
as, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability,
or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its Affiliates or other related
entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, any alternative,
successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto and such transactions may be adverse
to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Term
SOFR Reference Rate, Adjusted Term SOFR, or Term SOFR, or any other Benchmark, any component definition thereof or rates referred to in
the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender
or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages,
costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any
such rate (or component thereof) provided by any such information source or service. In connection with the use or administration of Term
SOFR, the Administrative Agent will, in consultation with the Borrower, have the right to make Conforming Changes from time to time and,
notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will
become effective without any further action or consent of any other party to this Agreement or any other Loan Document. The Administrative
Agent will promptly notify the Borrower and the Lenders of the effectiveness of any Conforming Changes in connection with the use or administration
of Term SOFR.
1.08 Divisions.
For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law with respect to any
Person that is a limited liability company formed under Delaware law (or any comparable event under the applicable laws of any other relevant
jurisdiction): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different
Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person
comes into existence as a result of such division or plan of division (or such other comparable event), such new Person shall be deemed
to have been organized and acquired on the first date of its existence by the holders of its Equity Interests at such time.
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1.09 Certain
Conditions, Calculations and Tests.
(a)
In connection with any action being taken in connection
with a Limited Condition Transaction, for purposes of:
(i) determining
compliance with any provision of this Agreement which requires the calculation of EBITDA (including, without limitation, tests measured
as a percentage of EBITDA), the Adjusted Total Debt to EBITDA Ratio, the Interest Coverage Ratio, consolidated revenues and/or Consolidated
Assets (other than for purposes of Section 7.13 (other than for Section 7.06(c) or 7.11(l)) or the Applicable Rate);
(ii) determining
the accuracy of representations and warranties and/or whether a Default or Event of Default (or any subset of Defaults or Events of Default)
shall have occurred and be continuing; or
(iii) testing
availability under baskets set forth in this Agreement (including, without limitation, baskets measured as a percentage of LTM EBITDA
or by reference to the Adjusted Total Debt to EBITDA Ratio, the Interest Coverage Ratio, consolidated revenues and/or Consolidated Assets),
in each case, at the option
of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT
Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be (i) in the case
of a Limited Condition Acquisition, the date of the definitive agreements for such Limited Condition Acquisition are entered into or,
solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers (or similar law or regulation)
applies, the date on which a “Rule 2.7 announcement” (or similar law or regulation) of a firm intention to make an offer is
published on a regulatory information service in respect of a target of a Limited Condition Transaction, (ii) in the case of any redemption
or repayment of Debt requiring irrevocable advance notice or any irrevocable offer to purchase Debt, the date of such irrevocable advance
notice or irrevocable offer and (iii) in the case of any declaration of a distribution or dividend in respect of, or irrevocable advance
notice of, or any irrevocable offer to, purchase, redeem or otherwise acquire or retire for value any Equity Interests of, the Borrower
or any Restricted Subsidiary, the date of such declaration, irrevocable advance notice or irrevocable offer (each, an “LCT Test
Date”), and if, after giving pro forma effect to the Limited Condition Transaction and the other transactions to be entered
into in connection therewith (including any incurrence or repayment or discharge of Debt and/or Liens and the use of proceeds thereof)
as if they had occurred at the beginning of the most recent Compliance Period ended prior to the LCT Test Date, the Borrower could have
taken such action on the relevant LCT Test Date in compliance with such test, ratio or basket, calculated on a pro forma basis, then such
test, ratio or basket shall be deemed to have been complied with. If the Borrower has made an LCT Election and any of the tests, determinations,
ratios or baskets for which compliance was determined or tested as of the LCT Test Date are subsequently exceeded as a result of fluctuations
in any such test, determination, ratio or basket, including due to fluctuations in EBITDA of the Borrower and its Restricted Subsidiaries,
at or prior to the consummation of the relevant transaction or action, such tests, baskets or ratios will be deemed not to have been exceeded
as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated
or taken; provided, however, that, if any ratios improve or baskets increase as a result of such fluctuations, such improved
ratios or baskets may be utilized. If the Borrower has made an LCT Election for any Limited Condition Transaction, then, in connection
with any subsequent calculation of any test, determination, ratio or basket availability (other than the testing of any ratio for purposes
of Section 7.13 (other than for Section 7.06(c) or 7.11(l)) and the definition of “Applicable Rate”)
on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated
or the definitive agreement/announcement for such Limited Condition Transaction is terminated or expires without consummation of such
Limited Condition Transaction, any such ratio, basket or amount shall be calculated on a pro forma basis assuming such Limited Condition
Transaction and other transactions in connection therewith (including any incurrence or discharge of Debt and/or Liens and the use of
proceeds thereof) have been consummated.
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In connection with any action
being taken in connection with a Limited Condition Transaction, for purposes of determining compliance with any provision of this Agreement
which requires that no Event of Default or Default, as applicable, has occurred, is continuing or would result from any such action, as
applicable, such condition shall, at the option of the Borrower, be deemed satisfied, so long as no Event of Default or Default, as applicable,
exists on the LCT Test Date. If the Borrower has exercised its option under this Section 1.09(a) and any Event of Default or Default
occurs following the LCT Test Date and prior to the consummation of the applicable transaction, any such Event of Default or Default shall
be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited
Condition Transaction is permitted hereunder.
(b) Notwithstanding
anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision
or covenant of this Agreement that does not require compliance with a financial ratio or test (including any Adjusted Total Debt to EBITDA
Ratio and/or Interest Coverage Ratio) (any such amounts, the “Fixed Amounts”) substantially concurrently or in a series
of related transactions with any amounts incurred or transactions entered into (or consummated) in reliance on a provision or covenant
of this Agreement that does require compliance with any such financial ratio or test (any such amounts, the “Incurrence-Based
Amounts”), it is understood and agreed that (x) the Fixed Amounts (and any cash proceeds thereof) shall be disregarded in the
calculation of the financial ratio or test applicable to the Incurrence-Based Amounts in connection with such incurrence and (y) the entire
transaction (or series of related transactions) shall be calculated on a pro forma basis (including the use of proceeds of all Debt to
be incurred and any repayments, repurchases, redemptions or other retirements of Debt). Notwithstanding anything herein to the contrary,
if at any time any applicable ratio or financial test for any category based on an Incurrence-Based Amount permits Debt, Liens, Restricted
Payments, Asset Dispositions, Acquisition, Investments or any other transaction, as applicable, previously incurred under a category based
on a Fixed Amount, such Debt, Lien, Restricted Payment, Asset Disposition, Acquisition, Investment or other transaction, as applicable,
shall (unless the Borrower otherwise elects) be deemed to have been automatically reclassified as incurred under such category based on
an Incurrence-Based Amount. Furthermore, the Borrower may, in its sole discretion, divide, classify or reclassify within the same covenant,
or at any later time divide, classify or reclassify within the same covenant, any such transaction (or any portion thereof) and will only
be required to include the amount and type of such transaction in any one category. Notwithstanding
anything contained herein to the contrary, if any financial ratios or tests (including any Adjusted Total Debt to EBITDA Ratio and/or
Interest Coverage Ratio) which require compliance in connection with the incurrence of any Debt, incurrence of any Lien or the making
of any Investment, Restricted Payment or Asset Disposition would be satisfied at any time thereafter following the utilization of any Fixed
Amounts, then the reclassification of actions or transactions (or portions thereof), including the reclassification of utilization of
any Fixed Amounts as incurred or utilized under any available Incurrence-Based Amounts, shall be deemed to have automatically occurred
even if not elected by the Borrower (unless the Borrower otherwise notifies the Administrative Agent).
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(c) From
and after the Uplift Closing Date, (i) with respect to each basket, cap or threshold that is determined by reference to the greater of
(x) a fixed dollar amount (a “Dollar Component”) and (y) a grower basket measured as a percentage of LTM EBITDA (a “Grower
Component”), the Dollar Component shall automatically be deemed increased to an amount equal to such corresponding Grower Component
calculated using LTM EBITDA as of the Uplift Closing Date after giving pro forma effect to the Uplift Transactions, in each case to the
extent such amount exceeds the Dollar Component in effect as of the Amendment No. 3 Effective Date, and (ii) with respect to each basket
that is tested by reference to the Adjusted Total Debt to EBITDA Ratio, the applicable Adjusted Total Debt to EBITDA Ratio for such basket
shall automatically be increased by the excess (if any) of (x) the Adjusted Total Debt to EBITDA Ratio calculated as of the Uplift Closing
Date after giving pro forma effect to the Uplift Transactions over (y) the Adjusted Total Debt to EBITDA Ratio, in each case calculated
as of the Amendment No. 3 Effective Date.
ARTICLE
II. THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed
Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a “Committed
Loan”) to the Borrower 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 Commitment; provided, however, that after giving effect
to any Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding
Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender’s Commitment. Within the limits of each Lender’s Commitment, and subject to the other terms and conditions hereof,
the Borrower may borrow under this Section 2.01, prepay under Section 2.06, and reborrow under this Section 2.01.
Committed Loans may be Base Rate Loans or SOFR Loans, as further provided herein.
2.02 Borrowings,
Conversions and Continuations of Committed Loans.
(a) Each
Committed Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of SOFR Committed Loans shall
be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone or (B) a Committed
Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Administrative Agent of a Committed
Loan Notice. Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation of SOFR Committed Loans or of any conversion of SOFR Committed
Loans to Base Rate Committed Loans, and (ii) on the requested date of any Borrowing of Base Rate Committed Loans. Each telephonic
notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent
of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion
to or continuation of SOFR Committed Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
Except as provided in Sections 2.04(c) and 2.05(c), each Borrowing of or conversion to Base Rate Committed Loans shall
be in a principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Committed Loan Notice (whether telephonic
or written) shall specify (i) whether the Borrower is requesting a Committed Borrowing, a conversion of Committed Loans from one
Type to the other, or a continuation of SOFR Committed 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 Committed Loans to be borrowed, converted or continued,
(iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, and (v) if applicable,
the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Committed Loan in a Committed Loan
Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Committed Loans shall
be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable SOFR Committed Loans. If the Borrower requests a Borrowing of, conversion
to, or continuation of SOFR Committed Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed
to have specified an Interest Period of one month.
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(b) Following
receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage
of the applicable Committed Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection. In
the case of a Committed Borrowing, each Lender shall make the amount of its Committed Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable
Committed 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 Borrower
in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Wells Fargo
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 the Borrower; provided, however, that if, on the date the Committed
Loan Notice with respect to such Borrowing is given by the Borrower, 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 the Borrower
as provided above.
(c) Except
as otherwise provided herein, a SOFR Committed Loan may be continued or converted only on the last day of an Interest Period for such
SOFR Committed Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as SOFR Committed Loans
without the consent of the Required Lenders.
(d) The
Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for SOFR
Committed Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify the Borrower and the Lenders of any change in Wells Fargo’s prime rate used in determining the Base Rate promptly following
the public announcement of such change.
(e) After
giving effect to all Committed Borrowings, all conversions of Committed Loans from one Type to the other, and all continuations of Committed
Loans as the same Type, there shall not be more than fifteen (15) Interest Periods in effect with respect to Committed Loans.
2.03 [Reserved].
2.04 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 Lenders set forth
in this Section 2.04, (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 for the account of the Borrower or its Subsidiaries, and to amend 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 Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and
any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the
Total Outstandings shall not exceed the Aggregate Commitments, (x) the aggregate Outstanding Amount of the Committed Loans of any
Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, (y) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit, and (z) the Outstanding Amount of the L/C Obligations
in respect of all Letters of Credit issued by each L/C Issuer shall not exceed such L/C Issuer’s Letter of Credit Sublimit Amount.
Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the 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 Borrower’s ability to obtain Letters of Credit shall be fully
revolving, and accordingly the 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.
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(ii) The
L/C Issuer shall not issue any Letter of Credit, if:
(A) the
expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Lenders
have approved such expiry date; or
(B) the
expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the 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 the 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 the Letter of Credit in particular or shall impose upon the L/C Issuer with respect to
the 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 the Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except
as otherwise agreed by the Administrative Agent and the L/C Issuer, the Letter of Credit is in an initial stated amount less than $10,000;
(D) the
Letter of Credit is to be denominated in a currency other than Dollars, euros, British pounds sterling or UAE dirhams or a currency in
which the applicable L/C Issuer can and is willing to issue Letters of Credit;
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(E) any
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 sole discretion) with the Borrower or such Lender to eliminate the L/C Issuer’s actual or
potential Fronting Exposure (after giving effect to Section 2.18(a)(iv)) 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; or
(F) the
Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(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 the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not
accept the proposed amendment to the Letter of Credit.
(vi) The
L/C Issuer shall act on behalf of the 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.
(i) Each
Letter of Credit shall be issued or amended, as the case may be, upon the request of the 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 a Responsible Officer
of the Borrower. 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 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 thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary
in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing
thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C Issuer may 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 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.
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(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 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 Lender, the Administrative
Agent or any Loan Party, at least one Business Day 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 then 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 Borrower (or the applicable
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 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 Lender’s Applicable Percentage times the amount of such Letter of Credit. In the event that the L/C Issuer issues
a Letter of Credit denominated in a currency other than Dollars, euros, British pounds sterling or UAE dirhams (or amends such a Letter
of Credit to increase the stated amount) the L/C Issuer shall promptly notify each Lender of such issuance or amendment.
(iii) 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 Borrower and the Administrative Agent a true and complete copy of such Letter of Credit
or amendment.
(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 together with, in the case
of a commercial Letter of Credit, a sight draft from the beneficiary, the L/C Issuer shall examine such drawing documents within the period
specified by the terms and conditions of such Letter of Credit, and after such examination, the L/C Issuer shall notify the Borrower and
the Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit
(each such date, an “Honor Date”), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in
an amount equal to the amount of such drawing as determined by the L/C Issuer. If the Borrower fails to so reimburse the L/C Issuer by
such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed
Amount”), and the amount of such Lender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed to
have requested a Committed Borrowing of Base Rate 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 for the principal amount of Base Rate Loans, but subject
to the amount of the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02 (other than
the delivery of a Committed Loan Notice) as determined by the Administrative Agent. Any notice given by the L/C Issuer or the Administrative
Agent pursuant to this Section 2.04(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.
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(ii) Each
Lender shall upon any notice pursuant to Section 2.04(c)(i) make funds available (and the Administrative Agent may apply Cash
Collateral provided for this purpose) for the account of the L/C Issuer at the Administrative Agent’s Office 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 2.04(c)(iii), each Lender that so makes funds available
shall be deemed to have made a Base Rate Committed Loan to the Borrower in such amount. The Administrative Agent shall remit the funds
so received to the L/C Issuer.
(iii) With
respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of Base Rate Loans because the conditions set
forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower 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 Lender’s payment to the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.04(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 Lender in satisfaction of its participation obligation under this
Section 2.04.
(iv) Until
each Lender funds its Committed Loan or L/C Advance pursuant to this Section 2.04(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
Lender’s obligation to make Committed Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit,
as contemplated by 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 which such Lender may have against the L/C Issuer, the
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 Lender’s obligation
to make Committed Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02
(other than delivery by the Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the Borrower 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 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 2.04(c) by the time specified in Section 2.04(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 greater of the Federal Funds Rate and
a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing
or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing
or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
45
(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 Lender such Lender’s L/C Advance
in respect of such payment in accordance with Section 2.04(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 the 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 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 2.04(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 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 demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders
under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Obligations
Absolute. The obligation of the 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 the Borrower or any 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) 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; or
46
(v) any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Borrower or any Subsidiary.
The 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 the Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The 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 Lender and the 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 the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering
any such document. None of the 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 Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence 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. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary
or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to,
and shall not, preclude the 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
(v) of Section 2.04(e); provided, however, that anything in such clauses to the contrary notwithstanding,
the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused
by 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. 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. Each L/C Issuer shall provide to the Administrative Agent a list of outstanding Letters of Credit (together
with amounts) issued by it on a monthly basis; the Administrative Agent shall provide a copy of such list to any Lender upon request.
(g) Applicability
of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer and the 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 Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber
of Commerce at the time of issuance shall apply to each commercial Letter of Credit.
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(h) Letter
of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the daily amount available to be drawn under such Letter of Credit; provided, however, any Letter of Credit
Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender
has not provided Cash Collateral satisfactory to the L/C Issuer pursuant to this Section 2.04 shall be payable, to the maximum
extent permitted by applicable Law, to the other Lenders in accordance with the upward adjustments in their respective Applicable Percentages
allocable to such Letter of Credit pursuant to Section 2.18(a)(iv), with the balance of such fee, if any, payable to the L/C
Issuer for its own account. 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 1.06. Letter of Credit Fees shall be (i) due and
payable on the first Business Day after the end of each Fiscal Quarter, 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 and (ii) computed on a quarterly basis
in arrears. 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 Borrower shall pay directly to the L/C Issuer for its own account
a fronting fee with respect to each Letter of Credit, at the rate of 0.125% per annum, computed on the daily amount available to be drawn
under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth 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 1.06. In addition, the Borrower
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 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 Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings
under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures
to the benefit of the Borrower, and that the Borrower’s business derives substantial benefit from the businesses of such Subsidiaries.
48
2.05 Swing
Line Loans.
(a)
The Swing Line. Subject to the terms and conditions
set forth herein, the Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.05,
may in its sole discretion make loans (each such loan, a “Swing Line Loan”) to the Borrower 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, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the
Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such
Lender’s Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Total
Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of
any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Commitment, and provided, further, that the Borrower shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may
borrow under this Section 2.05, prepay under Section 2.06, and reborrow under this Section 2.05.
Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each 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 Lender’s Applicable Percentage times the amount of such Swing Line
Loan.
(b)
Borrowing Procedures. Each Swing Line Borrowing shall be made upon
the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by (A) telephone
or (B) 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 of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each
such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the
Swing Line Lender of any telephonic 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 Lender) prior to
2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing
Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.05(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 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 Borrower (which hereby irrevocably authorizes the Swing
Line Lender to so request on its behalf), that each Lender make a Base Rate Committed 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 Committed 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, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02. The Swing Line Lender shall furnish the Borrower with
a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make
an amount equal to its Applicable Percentage of the amount specified in such Committed 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 Committed Loan Notice, whereupon, subject to Section 2.05(c)(ii), each Lender that so makes funds available
shall be deemed to have made a Base Rate Committed Loan to the Borrower in such amount. The Administrative Agent shall remit the funds
so received to the Swing Line Lender.
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(ii) If
for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.05(c)(i),
the request for Base Rate Committed 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 Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s payment
to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.05(c)(i) shall be deemed payment
in respect of such participation.
(iii) If
any 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 2.05(c) by the time specified in Section 2.05(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 greater of the Federal Funds Rate and a rate determined by the Swing Line Lender
in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged
by the Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the
amount so paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or funded participation
in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iv) Each
Lender’s obligation to make Committed Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.05(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 Swing Line Lender, the 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 Lender’s obligation to make Committed Loans pursuant to this Section 2.05(c)
is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise
impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.
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(d)
Repayment of Participations.
(i) At
any time after any 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 Lender its Applicable Percentage thereof 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 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 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.
(e)
Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender funds its Base Rate
Committed Loan or risk participation pursuant to this Section 2.05 to refinance such 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 Borrower shall
make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
2.06 Prepayments.
(a) The
Borrower may, upon delivery of a Notice of Committed Loan Prepayment to the Administrative Agent, at any time or from time to time voluntarily
prepay Committed Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of SOFR Committed Loans
and (B) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of SOFR Committed Loans shall be in a principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Committed Loans shall
be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Committed Loans
to be prepaid and, if SOFR Committed Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly
notify each 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 the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein. Any prepayment of a SOFR Loan shall be accompanied by all accrued interest on the amount
prepaid, together with any additional amounts required pursuant to Section 3.05. Subject to Section 2.18, each
such prepayment shall be applied to the Committed Loans of the Lenders in accordance with their respective Applicable Percentages.
(b) [Reserved].
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(c) The
Borrower 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 $100,000. Each such notice shall specify the date and amount of such prepayment.
If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein.
(d) If
for any reason the Total Outstandings at any time exceed the Aggregate Commitments then in effect, the Borrower shall immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that
the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(d) unless after
the prepayment in full of the Committed Loans and Swing Line Loans the Total Outstandings exceed the Aggregate Commitments then in effect.
2.07 Termination
or Reduction of Commitments. The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Commitments, or from
time to time permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be received by the Administrative
Agent not later than 11:00 a.m. five 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, (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings
would exceed the Aggregate Commitments, and (iv) if, after giving effect to any reduction of the Aggregate Commitments, the Letter
of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be automatically reduced
by the amount of such excess. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction
of the Aggregate Commitments. Any reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according to
its Applicable Percentage. All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination.
2.08 Repayment
of Loans.
(a)
The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Committed Loans outstanding on such date.
(b)
The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the date ten Business Days after such Loan is made and (ii) the Maturity Date.
2.09 Interest.
(a) Subject
to the provisions of subsection (b) below, (i) each SOFR Committed Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to Adjusted Term SOFR for such Interest Period plus the Applicable Rate;
(ii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing
date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan shall bear interest
on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate.
(b)
(i) If any
amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity,
by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal
to the Default Rate to the fullest extent permitted by applicable Laws.
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(ii) If
any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders,
such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.
(iii) Upon
the request of the Required Lenders, while any Event of Default exists, the Borrower shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(iv) Accrued
and unpaid interest on past due amounts (including interest on past due interest to the extent permitted by applicable Law) shall be due
and payable upon demand.
(c) Interest
on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified
herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.
2.10 Fees.
In addition to certain fees described in subsections (h) and (i) of Section 2.04:
(a)
Commitment Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the Applicable Rate times
the actual daily amount by which the Aggregate Commitments exceed the sum of (i) the Outstanding Amount of Committed Loans and
(ii) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.18. The commitment
fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV
is not met, and shall be due and payable quarterly in arrears on the last Business Day of each Fiscal Quarter, commencing with the
first such date to occur after the Closing Date, and on the last day of the Availability Period. The commitment fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect.
(b)
Other Fees. (i) The Borrower shall pay to the Arranger and the Administrative
Agent for their own respective accounts fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.
(ii) The
Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.
Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
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2.11 Computation
of Interest and Fees; Retroactive Adjustments of Applicable Rate.
(a)
All computations of interest for Base Rate Loans (including Base Rate Loans determined
by reference to Adjusted Term SOFR) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual
days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed
(which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall,
subject to Section 2.13(a), bear interest for one day. Each determination by the Administrative Agent of an interest
rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
(b)
If, as a result of any restatement of or other adjustment to the financial
statements of the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the Adjusted Total Debt to
EBITDA Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the
Adjusted Total Debt to EBITDA Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and
retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the
case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for
relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the
Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should
have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit
the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section 2.04(c)(iii), 2.04(h)
or 2.09(b) or under Article VIII. The Borrower’s obligations under this paragraph shall survive the
termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.
2.12 Evidence
of Debt.
(a)
The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records
maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by
the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations.
In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence
of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to
such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts
or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of
its Loans and payments with respect thereto.
(b)
In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or
records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event
of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender
in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest
error.
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2.13 Payments
Generally; Administrative Agent’s Clawback.
(a)
General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the
Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is
owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the
date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other
applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due
on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.
(b)
(i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Committed Borrowing of SOFR
Loans (or, in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing)
that such Lender will not make available to the Administrative Agent such Lender’s share of such Committed Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02
(or, in the case of a Committed Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and
at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to
the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date
such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the
case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily
charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the
Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount
of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Committed Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s Committed Loan included in such Committed
Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall
have failed to make such payment to the Administrative Agent.
(ii) Payments
by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately
available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
A notice of the Administrative
Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest
error.
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(c) Failure
to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender
as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative
Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance
with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without
interest.
(d) Obligations
of Lenders Several. The obligations of the Lenders hereunder to make Committed Loans, to fund participations in Letters of Credit
and Swing Line Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender
to make any Committed Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible
for the failure of any other Lender to so make its Committed Loan, to purchase its participation or to make its payment under Section 10.04(c).
(e) Funding
Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or
to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
2.14 Sharing
of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect
of any principal of or interest on any of the Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans
held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Committed Loans or participations
and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Committed
Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable,
so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Committed Loans and other amounts owing them, provided that:
(i) if
any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such
participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest;
and
(ii) the
provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and
in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting
Lender), (y) the application of Cash Collateral provided for in Section 2.17, or (z) any payment obtained by a Lender
as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in L/C Obligations
or Swing Line Loans to any assignee or participant, other than an assignment to the Borrower or any Affiliate thereof (as to which the
provisions of this Section shall apply).
Each Loan Party consents to
the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
2.15 [Reserved].
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2.16 Increase
in Commitments.
(a) Request
for Increase. Provided that, subject to Section 1.09(a) in connection with a Limited Condition Transaction, there exists no
Default, upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrower may from time to time, request
an increase in the Aggregate Commitments (which increase may take the form of one or more term loan tranches) by an amount (for all such
requests after the Amendment No. 13
Effective Date) not exceeding the greater of (x) $300,000,000577,500,000
and (y) 75.0% of LTM EBITDA; provided that any such request for an increase shall be in a minimum amount of $5,000,000.
At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within
which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice
to the Lenders).
(b) Lender
Elections to Increase. Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase
its Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase.
Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment.
(c) Notification
by Administrative Agent; Additional Lenders. The Administrative Agent shall notify the Borrower and each Lender of the Lenders’
responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of the Administrative
Agent, and, other than with respect to increases in the form of a term loan tranche, the L/C Issuer and the Swing Line Lender (which approvals
shall not be unreasonably withheld), the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder
agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(d) Effective
Date and Allocations. If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the
Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase.
The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Increase
Effective Date.
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(e) Conditions
to Effectiveness of Increase. Subject to Section 1.09(a) in connection with a Limited Condition Transaction, as a condition precedent
to such increase, (i) the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (x) certifying and attaching
the resolutions adopted by such Loan Party approving or consenting to such increase, and (y) in the case of the Borrower, certifying
that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V
and the other Loan Documents are true and correct on and as of the Increase Effective Date, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that
for purposes of this Section 2.16, the representations and warranties contained in subsections (a) and (b) of Section 5.04
shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01,
and (B) no Default exists, (ii) (x) upon the reasonable request of any Lender participating in such increase, in each case made at
least five (5) days prior to the Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably
satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and
anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, and (y) at least five (5) days prior to the
Increase Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation
shall have delivered, to each Lender participating in such increase that so requests, a Beneficial Ownership Certification in relation
to such Loan Party, and (iii) to the extent that the increase of the Aggregate Commitments shall take the form of a term loan tranche,
this Agreement and the other Loan Documents shall be amended, (x) in form and substance satisfactory to the Administrative Agent and the
Lenders participating in such term loan tranche, to include any additional terms to reflect the incurrence of, and terms and conditions
of such term loan tranche (including, without limitation, the pricing, margins, interest rate floors, fees and maturity date (which may
be later but not earlier than the then scheduled Maturity Date) applicable thereto) and (y) to include such other terms as are customary
for a term loan commitment, in form and substance satisfactory to the Administrative Agent. Other
than in connection with the establishment of any term loan tranche, the Borrower shall prepay any Committed Loans outstanding on
the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to
keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments
under this Section.
(f) Conflicting
Provisions. This Section shall supersede any provisions in Section 2.14 or 10.01 to the contrary.
2.17 Cash
Collateral.
(a) Certain
Credit Support Events. Upon the request of the Administrative Agent or the L/C Issuer (i) if the L/C Issuer has honored any full
or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter
of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations. At any time that there shall exist a Defaulting Lender, immediately upon the request
of the Administrative Agent, the L/C Issuer or the Swing Line Lender, the Borrower shall deliver to the Administrative Agent Cash Collateral
in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.18(a)(iv) and any Cash Collateral
provided by the Defaulting Lender).
(b) Grant
of Security Interest. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained
in blocked, interest bearing deposit accounts at the L/C Issuer. The Borrower, and to the extent provided by any Lender, such Lender,
hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer
and the Lenders (including the Swing Line Lender), and agrees to maintain, a first priority security interest in all such cash, deposit
accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing,
all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.17(c). If at any time
the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative
Agent as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations
secured thereby, the Borrower or the relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide
to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.
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(c) Application.
Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.17
or Sections 2.04, 2.05, 2.06, 2.18 or 8.02 in respect of Letters of Credit or Swing Line Loans
shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line Loans, obligations to fund participations therein
(including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for
which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.
(d) Release.
Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly
following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination
of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 10.06(b)(vi)))
or (ii) the Administrative Agent’s good faith determination that there exists excess Cash Collateral; provided, however,
(x) that Cash Collateral furnished by or on behalf of a Loan Party shall not be released during the continuance of a Default or Event
of Default (and following application as provided in this Section 2.17 may be otherwise applied in accordance with Section 8.03),
and (y) the Person providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral
shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
2.18 Defaulting
Lenders.
(a) Adjustments.
Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time
as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) Waivers
and Amendments. That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this
Agreement shall be restricted as set forth in Section 10.01.
(ii) Reallocation
of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including any amounts
made available to the Administrative Agent by that Defaulting Lender pursuant to Section 10.08), shall be applied at such
time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting
Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting
Lender to the L/C Issuer or Swing Line Lender hereunder; third, if so determined by the Administrative Agent or requested by the
L/C Issuer or Swing Line Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation
in any Swing Line Loan or Letter of Credit; fourth, as the Borrower may request (so long as no Default or Event of Default exists),
to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement,
as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in
a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under
this Agreement; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or Swing Line Lender against that Defaulting Lender
as a result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or
Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction
obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under
this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided
that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting
Lender has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were made at a time when the conditions set
forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings
owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings
owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or
held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.18(a)(ii) shall be
deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
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(iii) Certain
Fees. That Defaulting Lender (x) shall not be entitled to receive any commitment fee pursuant to Section 2.10(a)
(and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting
Lender) for any period during which that Lender is a Defaulting Lender and (y) shall be limited in its right to receive Letter of
Credit Fees as provided in Section 2.04(h).
(iv) Reallocation
of Applicable Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing
the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit or Swing
Line Loans pursuant to Sections 2.04 and 2.05, the “Applicable Percentage” of each non-Defaulting Lender
shall be computed without giving effect to the Commitment of that Defaulting Lender; provided, that, (i) each such reallocation
shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default exists;
and (ii) the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit
and Swing Line Loans shall not exceed the positive difference, if any, of (1) the Commitment of that non-Defaulting Lender minus
(2) the aggregate Outstanding Amount of the Committed Loans of that Lender.
(b) Defaulting
Lender Cure. If the Borrower, the Administrative Agent, Swing Line Lender and the L/C Issuer agree in writing in their sole discretion
that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto,
whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements
with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other
Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Committed Loans and funded
and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance
with their Applicable Percentages (without giving effect to Section 2.18(a)(iv)), whereupon that Lender will cease to be
a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by
or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent
otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
ARTICLE
III. TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments
Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
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(i) Any
and all payments by or on account of any obligation of the Borrower hereunder or under any other Loan Document shall to the extent permitted
by applicable Laws be made free and clear of and without deduction or withholding for any Taxes. If, however, applicable Laws require
the Borrower, the Administrative Agent or other applicable withholding agent to withhold or deduct any Tax, such Tax shall be withheld
or deducted in accordance with such Laws as determined by the applicable withholding agent, upon the basis of the information and documentation
to be delivered pursuant to subsection (e) below.
(ii) If
the Borrower, the Administrative Agent or other applicable withholding agent shall be required by applicable Law to withhold or deduct
any Taxes, including both United States federal backup withholding and withholding Taxes, from any payment by or on account of any obligation
of the Borrower hereunder or under any other Loan Document, (A) the applicable withholding agent shall withhold or make such deductions
as are determined by the withholding agent to be required based upon the information and documentation it has received pursuant to subsection
(e) below, (B) the applicable withholding agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority
in accordance with applicable Laws, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes or
Other Taxes, the sum payable by the Borrower shall be increased as necessary so that after any required withholding or the making of
all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent, Lender
or L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such withholding or deduction been
made.
(b) Payment
of Other Taxes by the Borrower. Without limiting the provisions of subsection (a) above, the Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable Laws.
(c) Tax
Indemnifications.
(i) Indemnification
by the Borrower. Without limiting the provisions of subsection (a) or (b) above, the Borrower shall, and does hereby, indemnify
the Administrative Agent, each Lender and the L/C Issuer, and shall make payment in respect thereof within 10 days after demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted
on or attributable to amounts payable under this Section) withheld or deducted by the Borrower or the Administrative Agent or paid by
the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. The Borrower shall also, and does hereby, indemnify the Administrative Agent, and shall make
payment in respect thereof within 10 days after demand therefor, for any amount which a Lender or the L/C Issuer for any reason
fails to pay indefeasibly to the Administrative Agent as required by clause (ii) of this subsection. A certificate as to the amount
of any such payment or liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or
by the Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.
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(ii) Indemnification
by the Lenders. Without limiting the provisions of subsection (a) or (b) above, each Lender and the L/C Issuer shall, and
does hereby, indemnify the Borrower and the Administrative Agent, and shall make payment in respect thereof within 10 days after
demand therefor, against any and all (A) Taxes and any and all related losses, claims, liabilities, penalties, interest and expenses
(including the fees, charges and disbursements of any counsel for the Borrower or the Administrative Agent) incurred by or asserted against
the Borrower or the Administrative Agent by any Governmental Authority as a result of the failure by such Lender or the L/C Issuer, as
the case may be, to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered
by such Lender or the L/C Issuer, as the case may be, to the Borrower or the Administrative Agent pursuant to subsection (e), (B)
any Taxes attributable to the failure by such Lender or L/C Issuer to comply with the provisions of Section 10.06(d) relating to the
maintenance of a Participant Register and (C) Excluded Taxes attributable to such Lender or the L/C Issuer, as the case may be. Each
Lender and the L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such
Lender or the L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative
Agent under this clause (ii). The agreements in this clause (ii) shall survive the resignation and/or replacement of the Administrative
Agent, any assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the termination of the Aggregate Commitments and
the repayment, satisfaction or discharge of all other Obligations.
(d) Evidence
of Payments. Upon request by the Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by the Borrower
or by the Administrative Agent to a Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to
the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy
of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment
or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.
(e) Status
of Lenders; Tax Documentation.
(i) Each
Lender shall deliver to the Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably
requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws
or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Borrower or the Administrative
Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Loan Document are subject
to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any
available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower or the
Administrative Agent pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax purposes in
the applicable jurisdiction.
(ii) Without
limiting the generality of the foregoing,
(A) any
Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent executed originals of IRS Form W-9 or such other
documentation or information prescribed by applicable Laws or reasonably requested by the Borrower or the Administrative Agent, certifying
that such Lender is exempt from backup withholding; and
(B) each
Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient)
on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the
request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(I) executed
originals of IRS Form W-8BEN or Form W-8BEN-E claiming, to the extent applicable, eligibility for benefits of an income tax treaty
to which the United States is a party,
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(II) executed
originals of IRS Form W-8ECI,
(III) executed
originals of IRS Form W-8IMY and all required supporting documentation,
(IV) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate
substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not (A) a “bank” within the meaning
of Section 881(c)(3)(A) of the Code, (B) a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B)
of the Code, or (C) a “controlled foreign corporation” related to the Borrower, as described in Section 881(c)(3)(C) of the
Code and (y) executed originals of IRS Form W-8BEN or Form W-8BEN-E,
(V) to
the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form
W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS
Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership
and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender
may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect
partner, or
(VI) executed
originals of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States federal
withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrower or the
Administrative Agent to determine the withholding or deduction required to be made or to comply with their obligations under FATCA.
(iii) Each
Lender shall promptly (A) notify the Borrower and the Administrative Agent of any change in circumstances which would modify or
render invalid any claimed exemption or reduction or any form or certification previously delivered to the Borrower or the Administrative
Agent, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and
as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Laws of any
jurisdiction that the Borrower or the Administrative Agent make any withholding or deduction for taxes from amounts payable to such Lender.
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(iv) Notwithstanding
any other provision of this Section 3.01, a Lender shall not be required to deliver any form pursuant to this Section 3.01
that such Lender is not legally eligible to deliver.
(v) Each
Lender authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation
provided by such Lender to the Administrative Agent pursuant to this Section 3.01(e).
(f) Treatment
of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for
or otherwise pursue on behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as the case may be. If the Administrative
Agent, any Lender or the L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as
to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section,
it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses incurred by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request
of the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or the L/C Issuer
in the event the Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this paragraph (f), in no event will the indemnified party be required to pay any amount
to an indemnifying party pursuant to this paragraph (f) the payment of which would place the indemnified party in a less favorable net
after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund
had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax
had never been paid. This subsection shall not be construed to require the Administrative Agent, any Lender or the L/C Issuer to make
available its tax returns (or any other information relating to its Taxes that it deems confidential) to the Borrower or any other Person.
3.02 Illegality.
If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for
any Lender or its applicable Lending Office to make, maintain or fund SOFR Loans, or to determine or charge interest rates based upon
SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR, or Term SOFR, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, (i) any obligation of such Lender to make or continue SOFR Loans or to convert Base Rate Committed Loans
to SOFR Committed Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining
Base Rate Loans the interest rate on which is determined by reference to Adjusted Term SOFR component of the Base Rate, the interest
rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent
without reference to Adjusted Term SOFR component of the Base Rate, in each case until such Lender notifies the Administrative Agent
and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the
Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all SOFR Loans
of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality,
be determined by the Administrative Agent without reference to the Adjusted Term SOFR component of the Base Rate), either on the last
day of the Interest Period therefor, if such Lender may lawfully continue to maintain such SOFR Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such SOFR Loans and (y) if such notice asserts the illegality of such Lender determining
or charging interest rates based upon Adjusted Term SOFR, the Administrative Agent shall during the period of such suspension compute
the Base Rate applicable to such Lender without reference to the Adjusted Term SOFR component thereof until the Administrative Agent
is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon Adjusted
Term SOFR. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
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3.03 Inability
to Determine Rates.
(a) Circumstances
Affecting Benchmark Availability. If in connection with any request for a SOFR Loan or a conversion to or continuation thereof, the
Administrative Agent determines that (x) adequate and reasonable means do not exist for determining Adjusted Term SOFR for any requested
Interest Period with respect to a proposed SOFR Committed Loan or in connection with an existing or proposed Base Rate Loan and (y) the
circumstances described in Section 3.03(c)(i) do not apply (in each case with respect to the foregoing clause (x) or (y), “Impacted
Loans”), the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation
of the Lenders to make or maintain SOFR Loans shall be suspended, and (y) in the event of a determination described in the preceding
sentence with respect to the Adjusted Term SOFR component of the Base Rate, the utilization of the Adjusted Term SOFR component in determining
the Base Rate shall be suspended, in each case until the Administrative Agent revokes such notice. Upon receipt of such notice, the Borrower
may revoke any pending request for a Borrowing of, conversion to or continuation of SOFR Committed Loans or, failing that, will be deemed
to have converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein.
(b) Laws
Affecting SOFR Availability. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in the
first sentence of Section 3.03(a), the Administrative Agent, in consultation in good faith with the Borrower, may establish an
alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted
Loans until (i) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under the first sentence of
Section 3.03(a), (ii) the Required Lenders notify the Administrative Agent and the Borrower that such alternative interest rate
does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (iii) any Lender determines that any
Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending
Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine
or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such
Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
(c) Benchmark
Replacement Setting.
(i) Benchmark
Replacement.
(A) Notwithstanding
anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative
Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment
with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative
Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received,
by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark
with a Benchmark Replacement pursuant to this Section 3.03(c)(i)(A) will occur prior to the applicable Benchmark Transition Start
Date.
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(B) No
Hedging Agreement shall be deemed to be a “Loan Document” for purposes of this Section 3.03(c).
(ii) Benchmark
Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement,
the Administrative Agent will have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding
anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective
without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) Notices;
Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (A) the
implementation of any Benchmark Replacement and (B) the effectiveness of any Conforming Changes in connection with the use, administration,
adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Borrower of the removal or reinstatement
of any tenor of a Benchmark pursuant to Section 3.03(c)(iv). Any determination, decision or election that may be made by the Administrative
Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 3.03(c), including any determination with respect
to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain
from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion
and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant
to this Section 3.03(c).
(iv) Unavailability
of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection
with the implementation of a Benchmark Replacement), (A) if the then-current Benchmark is a term rate (including the Term SOFR Reference
Rate) and either (1) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate
from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the administrator of such Benchmark or
the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing
that any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the International Organization
of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent may modify the definition of “Interest
Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative,
non-compliant or non-aligned tenor and (B) if a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed
on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an
announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities
Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative
Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings
at or after such time to reinstate such previously removed tenor.
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(v) Benchmark
Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (A)
the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans to be made, converted or
continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request
into a request for a borrowing of or conversion to Base Rate Loans and (B) any outstanding affected SOFR Loans will be deemed to have
been converted to Base Rate Loans at the end of the applicable Interest Period. During any Benchmark Unavailability Period or at any
time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current
Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.
3.04 Increased
Costs.
(a) Increased
Costs Generally. If any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits
with or for the account of, or credit extended or participated in by, any Lender or the L/C Issuer;
(ii) subject
any Lender or the L/C Issuer to any Taxes with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit
or any SOFR Loan made by it, or change the basis of taxation of payments to such Lender or the L/C Issuer in respect thereof (except
for Indemnified Taxes, Other Taxes and Excluded Taxes); or
(iii) impose
on any Lender or the L/C Issuer any other condition, cost or expense affecting this Agreement or SOFR Loans made by such Lender or any
Letter of Credit or participation therein;
and the result of any of the foregoing shall
be to increase the cost to such Lender of making or maintaining any Loan the interest on which is determined by reference to Adjusted
Term SOFR (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating
in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest
or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as
the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional
costs incurred or reduction suffered.
(b) Capital
Requirements. If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity requirements
has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital
of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C
Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies
of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy or liquidity), then from time to time
the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such
Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.
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(c) Certificates
for Reimbursement. A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered
to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or the L/C Issuer, as the case may be,
the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Delay
in Requests. Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions
of this Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section
for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or the L/C Issuer, as
the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s
or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect
thereof).
3.05 Compensation
for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any
continuation, conversion, payment or prepayment of any SOFR Loan on a day other than the last day of the Interest Period for such Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any
failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any
SOFR Loan on the date or in the amount notified by the Borrower; or
(c) any
assignment of a SOFR Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant
to Section 10.13;
including any loss of anticipated profits and
any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to
terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by
such Lender in connection with the foregoing.
3.06 Mitigation
Obligations; Replacement of Lenders.
(a) Designation
of a Different Lending Office. If any Lender requests compensation under Section 3.04, or the Borrower is required to
pay any Indemnified Taxes or Other Taxes or any additional amount to any Lender, the L/C Issuer, or any Governmental Authority for the
account of any Lender or the L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02,
then such Lender or the L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender or the L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02,
as applicable, and (ii) in each case, would not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be. The Borrower hereby agrees
to pay all reasonable costs and expenses incurred by any Lender or the L/C Issuer in connection with any such designation or assignment.
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(b) Replacement
of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any Indemnified
Taxes or Other Taxes or any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01,
the Borrower may replace such Lender in accordance with Section 10.13.
3.07 Survival.
All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments, repayment
of all other Obligations hereunder, and resignation of the Administrative Agent.
ARTICLE
IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions
of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) The
Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or,
in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory
to the Administrative Agent and each of the Lenders:
(i) executed
counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the
Borrower;
(ii) a
Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such
certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party
as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized
to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such
documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or
formed, and that each of the Borrower and Loan Parties is validly existing, in good standing and qualified to engage in business in its
state of incorporation (or formation) and in each other state requested by the Administrative Agent;
(v) (i)
a favorable opinion of Debevoise & Plimpton LLP, counsel to the Loan Parties, and (ii) a favorable opinion of Jessica Garascia, Vice
President, General Counsel, Chief Administrative Officer, and Secretary of the Borrower, in each case, addressed to the Administrative
Agent and each Lender;
(vi) [reserved];
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(vii) a
certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a)
and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements
that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) the representations
and warranties set forth in Section 5 hereof are true and correct on and as of the Closing Date, and (D) no Default or Event of Default
has occurred and is continuing;
(viii) [reserved];
(ix) evidence
that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated;
(x) at
least five Business Days prior to the Closing Date, all documentation and other information concerning the Borrower as shall be reasonably
required by any Lender to satisfy its bank regulatory authorities under applicable “know-your-customer” and anti-money laundering
rules and regulations, including the Patriot Act, to the extent requested at least ten Business Days prior to the date hereof; and
(xi) such
other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or
the Required Lenders reasonably may require.
(b) Any
fees required to be paid by the Borrower on or before the Closing Date shall have been paid.
(c) Unless
waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative
Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three (3) Business Days prior
to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate
of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Without limiting the generality
of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified
in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted
or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory
to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying
its objection thereto.
4.02 Conditions
to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type, or a continuation of SOFR Committed Loans) is subject to the following
conditions precedent:
(a) Except
as set forth in Section 2.16(e) with respect to any increase used to finance a Limited Condition Transaction, the representations and
warranties of the Borrower and each other Loan Party contained in Article V (other than those contained in Section 5.04(b)
and Section 5.05) or any other Loan Document, or which are contained in any document furnished at any time under or in connection
herewith or therewith, shall be true and correct on and as of the date of such Credit Extension, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except
that for purposes of this Section 4.02, the representations and warranties contained in subsection (a) of Section
5.04 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
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(b) Except
as set forth in Section 2.16(e) with respect to any increase used to finance a Limited Condition Transaction, no Default shall exist,
or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(c) The
Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension
(other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type or a continuation of SOFR Committed
Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a)
and (b) (in each case, subject to Section 1.09(a) in connection with a Limited Condition Transaction) have been satisfied
on and as of the date of the applicable Credit Extension.
ARTICLE
V. REPRESENTATIONS AND WARRANTIES
The Borrower represents and
warrants to the Administrative Agent and the Lenders that:
5.01 Organization.
Each of the Borrower and each Restricted Subsidiary is validly existing and in good standing under the laws of its jurisdiction of organization;
and each of the Borrower and each Restricted Subsidiary is duly qualified to do business in each jurisdiction where, because of the nature
of its activities or properties, such qualification is required, except for such jurisdictions where the failure to so qualify could
not reasonably be expected to have a Material Adverse Effect.
5.02 Authorization;
No Conflict. The Borrower and each Restricted Subsidiary is duly authorized to execute and deliver each Loan Document to which such
Person is a party and perform its Obligations under each Loan Document to which it is a party. The Borrower is duly authorized to borrow
monies hereunder. The execution, delivery and performance by the Borrower and each Restricted Subsidiary of each Loan Document to which
such Person is a party, and the borrowings by the Borrower hereunder, do not and will not (a) require any consent or approval of any
governmental agency or authority (other than any consent or approval which has been obtained and is in full force and effect) or which
the failure to so obtain could not reasonably be expected to have a Material Adverse Effect, (b) conflict with (i) any provision of law,
(ii) the Organization Documents or material agreements disclosed in the Borrower’s most recent filing with the SEC on Form 10-K
or (iii) any material agreement, indenture, instrument or other document, or any judgment, order or decree, which is binding upon the
Borrower or any Restricted Subsidiary or any of their respective properties or (c) require, or result in, the creation or imposition
of any Lien on any asset of the Borrower or any Restricted Subsidiary (other than Liens, if any, in favor of the Administrative Agent
created pursuant to the Loan Documents).
5.03 Validity
and Binding Nature. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed
and delivered by each Loan Party that is party thereto and is, or when so delivered will be, the legal, valid and binding obligation
of such Person, enforceable against such Person in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting
the enforceability of creditors’ rights generally and to general principles of equity.
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5.04 Financial
Condition; No Material Adverse Effect.
(a) The
Audited Financial Statements, copies of which have been delivered to each Lender, were prepared in accordance with GAAP (subject, in
the case of such unaudited statements, to the absence of footnotes and to normal year-end adjustments) and present fairly the consolidated
financial condition of the Borrower and its Subsidiaries as at such dates and the results of their operations for the periods then ended.
(b) Since
the date of the Audited Financial Statements, there has been no change in the financial condition, operations, assets, business or properties
of the Borrower and the Restricted Subsidiaries, taken as a whole that has had or could reasonably be expected to have a Material Adverse
Effect.
5.05 Litigation
and Contingent Liabilities. Except as set forth on Schedule 5.05 or as disclosed in the SEC Filings as of the Amendment No.
13 Effective Date,
no litigation (including derivative actions), arbitration proceeding or governmental investigation or proceeding is pending or, to the
Borrower’s knowledge, threatened against the Borrower or any Restricted Subsidiary which could reasonably be expected to have a
Material Adverse Effect. Other than any liability incident to such litigation or proceedings, neither the Borrower nor any Restricted
Subsidiary has any material contingent liabilities not listed on Schedule 5.05, disclosed in the SEC Filings as of the Amendment
No. 13 Effective
Date or that are permitted by Section 7.01.
5.06 Ownership
of Properties; Liens. Each of the Borrower and each of its Restricted Subsidiaries owns good and, in the case of real property, sufficient
title to all of its properties and assets, real and personal, tangible and intangible, of any nature whatsoever (including patents, trademarks,
trade names, service marks and copyrights) that individually or in the aggregate are Material, free and clear of all Liens, charges and
claims (including infringement claims with respect to patents, trademarks, service marks, copyrights and the like) except as permitted
by Section 7.02.
5.07 Equity
Ownership; Subsidiaries. All issued and outstanding Equity Interests of the Borrower and each Restricted Subsidiary are duly authorized
and validly issued, fully paid, non-assessable, and free and clear of all Liens other than those in favor of the Administrative Agent
(if any), and such securities were issued in compliance with all applicable state and federal laws concerning the issuance of securities.
Schedule 5.07 sets forth the authorized Equity Interests of each Restricted Subsidiary and each Unrestricted Subsidiary as of
the Amendment No. 13
Effective Date and identifies each owner of such Equity Interests and their percentage of the total Equity Interests which each owner
owns. Each Restricted Subsidiary is a Wholly-Owned Subsidiary, except as set forth on Schedule 5.07. As of the Amendment No. 13
Effective Date, except as set forth on Schedule 5.07, there are no pre-emptive or other outstanding rights, options, warrants,
conversion rights or other similar agreements or understandings for the purchase or acquisition of any Equity Interests of the Borrower
or any Restricted Subsidiary. The Borrower shall update Schedule 5.07 promptly after (a) the creation or acquisition by the Borrower
or a Subsidiary thereof of a new Subsidiary, (b) any change in the ownership structure of any Wholly-Owned Restricted Subsidiary that
results in such Restricted Subsidiary no longer being a Wholly-Owned Subsidiary or (c) any change in a Subsidiary’s designation
as an Unrestricted Subsidiary or a Restricted Subsidiary; provided, such update in and of itself shall not cause such action to
be permitted hereunder if such action is otherwise prohibited hereunder.
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5.08 Pension
Plans.
(a) Each
Pension Plan complies in all material respects with all applicable requirements of law and regulations. No contribution failure under
Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan has occurred with respect to any Pension Plan, sufficient
to give rise to a Lien under Section 303(k) of ERISA, or otherwise to have a Material Adverse Effect. There are no pending or, to the
knowledge of the Borrower, threatened, claims, actions, investigations or lawsuits against any Pension Plan, any fiduciary of any Pension
Plan, the Borrower or any ERISA Affiliate with respect to a Pension Plan which could reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any ERISA Affiliate has engaged in any prohibited transaction (as defined in Section 4975 of the Code
or Section 406 of ERISA) in connection with any Pension Plan which would subject that Person to any material liability. Within the past
five years, neither the Borrower nor any ERISA Affiliate has engaged in a transaction which resulted in a Pension Plan with an Unfunded
Liability being transferred out of the group of ERISA Affiliates, which could reasonably be expected to have a Material Adverse Effect.
No ERISA Event has occurred or is reasonably expected to occur with respect to any Pension Plan, which could reasonably be expected to
have a Material Adverse Effect.
(b) All
contributions (if any) have been made to any Multiemployer Plan that are required to be made by the Borrower or any ERISA Affiliate under
the terms of the plan or of any collective bargaining agreement or by applicable law; neither the Borrower nor any ERISA Affiliate has
withdrawn or partially withdrawn from any Multiemployer Plan, incurred any withdrawal liability with respect to any such plan or received
notice of any claim or demand for withdrawal liability or partial withdrawal liability from any such plan, and no condition has occurred
which, if continued, could result in a withdrawal or partial withdrawal from any such plan; and neither the Borrower nor any ERISA Affiliate
has received any notice that any Multiemployer Plan is in endangered or critical status within the meaning of Section 432 of the Code
or Section 305 of ERISA, that increased contributions may be required to avoid a reduction in plan benefits or the imposition of any
excise tax, that any such plan is or has been funded at a rate less than that required under Section 412 of the Code, that any such plan
is or may be terminated, or that any such plan is or may become insolvent.
5.09 Investment
Company Act. Neither the Borrower nor any Restricted Subsidiary is an “investment company” or a company “controlled”
by an “investment company” or a “subsidiary” of an “investment company,” within the meaning of the
Investment Company Act of 1940.
5.10 Regulation
U. The Borrower is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose
of purchasing or carrying “margin stock” as defined in Regulation U of the FRB.
5.11 Taxes.
Each of the Borrower and each Restricted Subsidiary has timely filed all tax returns and reports required by law to have been filed by
it and has paid all taxes and governmental charges due and payable with respect to such returns, except any such taxes or charges (a)
which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books or (b) the filing or amount of which is not individually or in the aggregate Material. The Borrower
and the Restricted Subsidiaries have made adequate reserves on their books and records in accordance with GAAP for all taxes that have
accrued but which are not yet due and payable. Neither the Borrower nor any Restricted Subsidiary has participated in any transaction
that relates to a year of the taxpayer (which is still open under the applicable statute of limitations) which is a “listed transaction”
within the meaning of Treasury Regulation Section 1.6011-4(b)(2) (irrespective of the date when the transaction was entered into).
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5.12 Solvency;
Etc.. On the Closing Date, and immediately prior to and after giving effect to the issuance of each Letter of Credit and each borrowing
hereunder and the use of the proceeds thereof, with respect to the Borrower and the Restricted Subsidiaries, taken as a whole, (a) the
fair value of their assets is greater than the amount of their liabilities as such value and liabilities are established in accordance
with GAAP, and (b) the present fair saleable value of their assets is not less than the amount that will be required to pay the probable
liability on their debts as they become absolute and matured.
5.13 Environmental
Matters. As of the Closing Date, except as disclosed in the most recent SEC Filings, neither the Borrower nor any Restricted Subsidiary
has knowledge of any liability or has received any notice of any liability, and no proceeding has been instituted raising any liability
against the Borrower or any of its Restricted Subsidiaries or any of their respective real properties now or formerly owned, leased or
operated by any of them or other assets, alleging any damage to the environment or violation of any Environmental Laws, except, in each
case, such as could not reasonably be expected to result in a Material Adverse Effect individually or in the aggregate. As of the Closing
Date, except as disclosed in the most recent SEC Filings, and except as otherwise disclosed in writing:
(a) neither
the Borrower nor any Restricted Subsidiary has knowledge of any facts which would give rise to any liability, public or private, for
violation of Environmental Laws or damage to the environment emanating from, occurring on or in any way related to real properties now
or formerly owned, leased or operated by any of them or to other assets or their use, except, in each case, such as could not reasonably
be expected to result in a Material Adverse Effect;
(b) neither
the Borrower nor any of its Restricted Subsidiaries has stored any Hazardous Materials on real properties now or formerly owned, leased
or operated by any of them or has disposed of any Hazardous Materials in a manner contrary to any Environmental Laws in each case in
any manner that could reasonably be expected to result in a Material Adverse Effect; and
(c) all
buildings on all real properties now owned, leased or operated by the Borrower or any of its Restricted Subsidiaries are in compliance
with applicable Environmental Laws, except where failure to comply could not reasonably be expected to result in a Material Adverse Effect.
5.14 Insurance.
The Borrower and each Restricted Subsidiary and their respective properties are insured with financially sound and reputable insurance
companies which are not Affiliates of the Borrower and the Restricted Subsidiaries, in such amounts, with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the
Borrower and the Restricted Subsidiaries operate.
5.15 Information.
All information heretofore or contemporaneously herewith furnished in writing by the Borrower to the Administrative Agent or any Lender
for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all written information hereafter
furnished by or on behalf of the Borrower to the Administrative Agent or any Lender pursuant hereto or in connection herewith will be,
true and accurate in every material respect on the date as of which such information is dated or certified, and none of such information
is or will be incomplete by omitting to state any material fact necessary to make such information not misleading in light of the circumstances
under which made (it being recognized by the Administrative Agent and the Lenders that any projections and forecasts provided by the
Borrower are based on good faith estimates and assumptions believed by the Borrower to be reasonable as of the date of the applicable
projections or assumptions and that actual results during the period or periods covered by any such projections and forecasts may differ
from projected or forecasted results).
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5.16 Intellectual
Property. Each of the Borrower and each Restricted Subsidiary owns and possesses or has a license or other right to use all patents,
patent rights, trademarks, trademark rights, trade names, trade name rights, service marks, service mark rights, and copyrights as are
necessary for the conduct of the businesses of the Borrower or such Restricted Subsidiary, as applicable, except to the extent the lack
of such rights could not reasonably be expected to have a Material Adverse Effect, without any infringement upon rights of others which
could reasonably be expected to have a Material Adverse Effect.
5.17 No
Default. No Event of Default or Default exists or would result from the incurrence by the Borrower or any Restricted Subsidiary of
any Debt hereunder or under any other Loan Document.
5.18 Taxpayer
Identification Number. The Borrower’s true and correct U.S. taxpayer identification number is set forth on Schedule 10.02.
5.19 Anti-Corruption
Laws; Sanctions; Anti-Terrorism Laws.
(a) The
Borrower, its Subsidiaries and their respective officers and employees, and to the knowledge of the Borrower its directors and agents,
are in compliance with Anti-Corruption Laws and applicable Sanctions, inclusive of all applicable general and specific licenses, in all
material respects, and each of the Borrower and its Subsidiaries has in effect policies and procedures designed to promote and achieve
compliance with Anti-Corruption Laws and applicable Sanctions. None of the Borrower, any Subsidiary or to the knowledge of the Borrower
or such Subsidiary any of their respective directors, officers, employees or agents is a Sanctioned Person. No Loan or Letter of Credit,
use of the proceeds of any Loan or Letter of Credit or other transactions contemplated hereby will violate Anti-Corruption Laws or applicable
Sanctions.
(b) Neither
the making of the Loans hereunder nor the use of the proceeds thereof will violate the PATRIOT Act, the Trading with the Enemy Act, as
amended, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B,
Chapter V, as amended) or any enabling legislation or executive order relating thereto or successor statute thereto. The Borrower
and its Subsidiaries are in compliance in all material respects with the PATRIOT Act.
5.20 Affected
Financial Institutions. No Loan Party is an Affected Financial Institution.
ARTICLE
VI. AFFIRMATIVE COVENANTS
Until the expiration or termination
of the Commitments and thereafter until all Obligations hereunder and under the other Loan Documents are paid in full (other than contingent
or indemnification obligations which survive the termination of this Agreement) and all Letters of Credit have been terminated (or cash
collateralized or backstopped in a manner reasonably satisfactory to the applicable L/C Issuer), the Borrower agrees that, unless at
any time the Required Lenders shall otherwise expressly consent in writing, it will:
6.01 Reports,
Certificates and Other Information. Furnish to the Administrative Agent (for delivery to each Lender):
(a) Annual
Report. Promptly when available and in any event within 90 days after the close of each Fiscal Year, a copy of the annual audit report
of the Borrower and its Subsidiaries for such Fiscal Year, including therein consolidated balance sheets and statements of earnings and
cash flows of the Borrower and its Subsidiaries as at the end of such Fiscal Year, together with a Report of Independent Registered Public
Accounting Firm thereon without adverse reference to going concern value and without qualification (other than a going concern qualification
resulting from an upcoming maturity date occurring within one year under any Debt or an anticipated breach of any financial covenant
in the documentation related to any Debt) by KPMG LLP or such other independent auditors of recognized standing selected by the Borrower
and reasonably acceptable to the Administrative Agent; provided that the availability on EDGAR or the internet within the time
period specified above of the Borrower’s Annual Report on Form 10-K for such Fiscal Year (together with the Borrower’s annual
report to shareholders, if any, prepared pursuant to Rule 14a-3 under the Exchange Act) prepared in accordance with the requirements
therefor and filed with the SEC shall be deemed to satisfy the requirements of this Section 6.01(a). The Borrower shall also furnish
to the Administrative Agent and each Lender promptly when available and in any event within 90 days after the close of each Fiscal Year
consolidated balance sheets and statements of earnings and cash flows of the Borrower and all Restricted Subsidiaries as at the end of
such Fiscal Year prepared in accordance with GAAP and a consolidated balance sheet and statement of earnings and cash flows of all of
the Borrower’s Unrestricted Subsidiaries as at the end of such Fiscal Year prepared in accordance with GAAP, together with information
on elimination entries (subject, in the case of the financial statements for the Borrower and its Restricted Subsidiaries and the financial
statements for the Borrower’s Unrestricted Subsidiaries, to the absence of footnotes and other deviations from GAAP that are to
be listed or itemized by the Borrower upon submission of such financial statements).
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(b) Interim
Reports. Promptly when available and in any event within 45 days after the end of each Fiscal Quarter, consolidated balance sheets
of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter, together with consolidated statements of earnings and cash
flows for such Fiscal Quarter and for the period beginning with the first day of such Fiscal Year and ending on the last day of such
Fiscal Quarter, together with a comparison with the corresponding period of the previous Fiscal Year certified by a Responsible Officer
of the Borrower; provided that the availability on EDGAR or the internet within the time period specified above of copies of the
Borrower’s Quarterly Report on Form 10-Q prepared in compliance with the requirements therefor and filed with the SEC shall be
deemed to satisfy the requirements of this Section 6.01(b). The Borrower shall also furnish to the Administrative Agent and each
Lender promptly when available and in any event within 45 days after the close of each Fiscal Quarter consolidated balance sheets of
the Borrower and its Restricted Subsidiaries as of the end of such Fiscal Quarter, together with consolidated statements of earnings
and cash flows for such Fiscal Quarter, and consolidated balance sheets of the Borrower’s Unrestricted Subsidiaries as of the end
of such Fiscal Quarter, together with a consolidated statement of earnings and cash flows and information on elimination entries reasonably
satisfactory to the Administrative Agent. All deliveries under this Section shall be prepared in accordance with GAAP (subject, in the
case of the financial statements for the Borrower and its Restricted Subsidiaries and the financial statements for the Borrower’s
Unrestricted Subsidiaries, to the absence of footnotes and other deviations from GAAP that are to be listed or itemized by the Borrower
upon submission of such financial statements).
(c) Compliance
Certificates. Within 20 Business Days of the furnishing of a copy of or the making available on EDGAR or the internet of, as the
case may be, each annual audit report of Form 10-K pursuant to Section 6.01(a) and each set of quarterly statements or Form 10-Q
pursuant to Section 6.01(b), a duly completed Compliance Certificate in the form of Exhibit E, with appropriate insertions,
dated the date of such annual report or such quarterly statements and signed by a Responsible Officer of the Borrower, containing a computation
of each of the financial ratios and restrictions set forth in Section 7.13 and to the effect that such Responsible Officer has
not become aware of any Event of Default or Default that has occurred and is continuing or, if there is any such event, describing it
and the steps, if any, being taken to cure it. As a schedule to any Compliance Certificate delivered pursuant to Section 6.01(a),
the Borrower shall also provide a listing of each of its Subsidiaries (excluding AAR International, Inc., the AAR AESL Group, the AAR
IFS Group and the AAR Airlift Group) that represents 10% or more of the Borrower’s consolidated revenues for the Fiscal Year then
ended and/or 10% or more of the Borrower’s Consolidated Assets as of the last day of such Fiscal Year. Such schedule shall set
forth the Dollar amount of each such Subsidiary’s assets and revenues and the percentage of the Borrower’s Consolidated Assets
and consolidated revenues represented by such Subsidiary’s assets and revenues.
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(d) Reports
to the SEC and to Shareholders. Promptly upon the filing or sending thereof, copies of all regular, periodic or special reports of
the Borrower filed with the SEC; copies of all registration statements of the Borrower filed with the SEC (other than on Form S-8); and
copies of all proxy statements or other communications made to security holders generally, provided that the availability on EDGAR
or the internet of any such report, statement or communication shall be deemed to satisfy the requirements of this Section 6.01(d)
with respect to such report, statement or communication.
(e) Notice
of Default, Litigation and ERISA Matters. Promptly upon any Responsible Officer becoming aware of any of the following, written notice
describing the same and the steps being taken by the Borrower or the Subsidiary affected thereby with respect to:
(i) the
occurrence of (x) an Event of Default or (y)
a Default;
(ii) any
litigation, arbitration or governmental investigation or proceeding not previously disclosed by the Borrower to the Lenders and which
will not be disclosed in the next applicable SEC Filings in accordance with the requirements thereof, which has been instituted or, to
the knowledge of the Borrower, is threatened against the Borrower or any Restricted Subsidiary or to which any of the properties of any
thereof is subject which might reasonably be expected to have a Material Adverse Effect;
(iii) the
institution of any steps by the Borrower, any ERISA Affiliate or any other Person to terminate any Pension Plan, or the failure of the
Borrower or any ERISA Affiliate to make a required contribution to any Pension Plan (if such failure is sufficient to give rise to a
Lien under Section 303(k) of ERISA) or to any Multiemployer Plan, or the taking of any action with respect to a Pension Plan which could
result in the requirement that the Borrower furnish a bond or other security to the PBGC or such Pension Plan, or the occurrence of any
event with respect to any Pension Plan which could result in the incurrence by the Borrower or any ERISA Affiliate of any material liability,
fine or penalty (including any claim or demand for withdrawal liability or partial withdrawal from any Multiemployer Plan), or any material
increase in the contingent liability of the Borrower with respect to any post-retirement welfare benefit plan or other employee benefit
plan of the Borrower or another ERISA Affiliate, or any notice that any Multiemployer Plan is in endangered or critical status within
the meaning of Section 432 of the Code or Section 305 of ERISA, that increased contributions may be required to avoid a reduction in
plan benefits or the imposition of an excise tax, that any such plan is or has been funded at a rate less than that required under Section
412 of the Code, that any such plan is or may be terminated, or that any such plan is or may become insolvent; or
(iv) any
other event (including (i) any violation of any Environmental Law or the assertion of any Environmental Claim or (ii) the enactment or
effectiveness of any law, rule or regulation) which might reasonably be expected to have a Material Adverse Effect and which will not
be disclosed in the next applicable SEC Filings in accordance with the requirements thereof.
(f) Projections.
As soon as reasonably practicable but no later than 60 days after the beginning of a Fiscal Year, provided that financial projections
have been approved by the board of directors of the Borrower for such Fiscal Year, the financial projections of the Borrower and its
Restricted Subsidiaries for such Fiscal Year, with each set of financial projections to be prepared and delivered in the form approved
by the board of directors of the Borrower.
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(g) Other
Information. Promptly from time to time, such other information concerning the Borrower and the Restricted Subsidiaries as any Lender
or the Administrative Agent may reasonably request.
The Borrower hereby acknowledges that (a) the
Administrative Agent and/or the Arranger may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials
and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting
the Borrower Materials on a Platform and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who
do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of
any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.
The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously
marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first
page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative
Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information
with respect to the Borrower or its securities for purposes of United States federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all
Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public
Side Information”; and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
6.02 Books,
Records and Inspections. Keep, and cause each Restricted Subsidiary to keep, its books and records in accordance with sound business
practices sufficient to allow the preparation of financial statements in accordance with GAAP; permit, and cause each Restricted Subsidiary
to permit, any Lender or the Administrative Agent or any representative thereof to inspect the properties and operations of the Borrower
or any Restricted Subsidiary; and permit, and cause each Restricted Subsidiary to permit, at any reasonable time and with reasonable
notice (or at any time without notice if an Event of Default exists), any Lender or the Administrative Agent or any representative thereof
to visit any or all of its offices, to discuss its financial matters with its officers and its independent auditors (and the Borrower
hereby authorizes such independent auditors to discuss such financial matters with any Lender or the Administrative Agent or any representative
thereof), and to examine (and, at the expense of the Borrower and the Restricted Subsidiaries, photocopy extracts from) any of its books
or other records. All such inspections or audits by the Administrative Agent shall be at the Lenders’ ratable expense, provided
that so long as no Event of Default or Default exists, the Borrower shall not be required to reimburse the Lenders for any inspections
or audits.
6.03 Maintenance
of Property; Insurance.
(a) Keep,
and cause each Restricted Subsidiary to keep, all property useful and necessary in the business of the Borrower and the Restricted Subsidiaries
in good working order and condition, ordinary wear and tear excepted.
(b) Maintain,
and cause each Restricted Subsidiary to maintain, with responsible insurance companies, such insurance coverage as may be required by
any law or governmental regulation or court decree or order applicable to it and such other insurance, to such extent and against such
hazards and liabilities, as is customarily maintained by companies similarly situated.
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6.04 Compliance
with Laws; Payment of Taxes and Liabilities. (a) Comply, and cause each Restricted Subsidiary to comply, in all material respects
with all applicable Laws (including Environmental Laws and requirements of laws and regulations applicable to Pension Plans and Multiemployer
Plans and Anti-Corruption Laws and applicable Sanctions), except where failure to comply could not reasonably be expected to have a Material
Adverse Effect; (b) without limiting clause (a) above, ensure, and cause each Restricted Subsidiary to ensure, that no Person
who owns a controlling interest in or otherwise controls a Restricted Subsidiary is or shall be (i) listed on the Specially Designated
Nationals and Blocked Person List maintained by the Office of Foreign Assets Control (“OFAC”), Department of the Treasury,
and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, Executive Order or regulation or (ii) a person
designated under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any related enabling legislation or any
other similar Executive Orders; and (c) without limiting clause (a) above, comply, and cause each Restricted Subsidiary to comply,
with all applicable Bank Secrecy Act (“BSA”) and anti-money laundering laws and regulations.
6.05 Maintenance
of Existence, Etc. Maintain and preserve, and (subject to a merger permitted under Section 7.04) cause each Restricted Subsidiary
to maintain and preserve (a) its existence and good standing in the jurisdiction of its organization, except in connection with a merger
of any Restricted Subsidiary into the Borrower or a Wholly-Owned Restricted Subsidiary and (b) its qualification to do business and good
standing in each jurisdiction where the nature of its business makes such qualification necessary (other than such jurisdictions in which
the failure to be qualified or in good standing could not reasonably be expected to have a Material Adverse Effect).
6.06 Use
of Proceeds. Use the proceeds of the Loans, and the Letters of Credit, solely for working capital purposes, for Acquisitions permitted
by Section 7.06 and for other general business purposes and other legal purposes; and not use or permit any proceeds of any Loan
to be used, either directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of “purchasing or carrying”
any margin stock (within the meaning of Regulation U issued by the FRB), except to the extent such purchase or carrying would not
cause a violation of any Law by the Borrower or any Lender. The Borrower shall ensure that its Subsidiaries and its or their respective
directors, officers, employees and agents shall not use the proceeds of any Loan or Letter of Credit (i) in furtherance of an offer,
payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of
any Anti-Corruption Laws or (ii) in any manner that would result in the violation by any Person of any applicable Sanctions.
6.07 Additional
Guarantors. Notify the Administrative Agent at the time that any Person that is a Domestic Subsidiary (other than an Excluded Subsidiary)
becomes a Significant Subsidiary, and promptly thereafter (and in any event within 45 days (or such longer period as the Administrative
Agent may agree) after a determination that such Domestic Subsidiary (other than an Excluded Subsidiary) constitutes a Significant Subsidiary),
cause such Person to (a) become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty
or such other document as the Administrative Agent shall deem appropriate for such purpose, and (b) deliver to the Administrative
Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and, to the extent reasonably
requested by the Administrative Agent, opinions of counsel to such Person.
6.08 PATRIOT
Act Compliance; Policies and Procedures. The Borrower shall, and shall cause each Subsidiary to, provide such information and take
such actions as are reasonably requested by the Administrative Agent or any Lender in order to assist the Administrative Agent and the
Lenders in maintaining compliance with the PATRIOT Act and the Beneficial Ownership Regulation. The Borrower shall, and shall cause each
Subsidiary to, maintain policies and procedures designed to promote and achieve compliance with the Anti-Corruption Laws and applicable
Sanctions.
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ARTICLE
VII. NEGATIVE COVENANTS
Until the expiration or termination
of the Commitments and thereafter until all Obligations hereunder and under the other Loan Documents are paid in full (other than contingent
or indemnification obligations which survive the termination of this Agreement) and all Letters of Credit have been terminated (or cash
collateralized or backstopped in a manner reasonably satisfactory to the applicable L/C Issuer), the Borrower agrees that, unless at
any time the Required Lenders shall otherwise expressly consent in writing, it will:
7.01 Debt.
Not, and not permit any Restricted Subsidiary to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations
under this Agreement and the other Loan Documents, Debt incurred pursuant
to the Uplift Intercompany Loan Agreement and Debt incurred pursuant to any Uplift Bridge Facility;
(b) Nonrecourse
Debt secured by Liens permitted by Section 7.02(d), and extensions, renewals and refinancings thereof; provided that the
aggregate amount of all such Nonrecourse Debt at any time outstanding shall not exceed the greater of (x) $160,000,000462,000,000
and (y) 60.0% of LTM EBITDA;
(c) Debt
of the Borrower to any domestic Restricted Subsidiary or Debt of any domestic Restricted Subsidiary of which the Borrower owns, directly
or indirectly, not less than 80% of the Equity Interests of such Subsidiary to the Borrower or another domestic Restricted Subsidiary;
provided that, to the extent such Debt is owed by a Loan Party to a non-Loan Party, such Debt shall be evidenced by a demand note
and the obligations under such demand note shall be subordinated to the Obligations of the Borrower hereunder in a manner reasonably
satisfactory to the Administrative Agent;
(d) Subordinated
Debt provided, that immediately before and immediately after the incurrence of such Subordinated Debt, no Event of Default or
Default exists;
(e) Hedging
Obligations incurred for bona fide hedging purposes and not for speculation;
(f) Debt
described on Schedule 7.01 as of the Amendment No. 3 Effective Date or included
on any amended and restated Schedule 7.01 delivered pursuant to Amendment No. 3 on or about the Uplift Closing Date, and
any extension, renewal or refinancing thereof so long as the aggregate principal amount thereof is not increased above
the aggregate principal amount thereof as of the Amendment No. 3 Effective Date or the Uplift Closing Date, as applicable (except
to the extent such increase would otherwise be permitted by this Section 7.01);
(g) Contingent
Liabilities arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted
under Section 7.05;
(h) except
as provided in Section 7.01(i) below, up to the greater of (x) $135,000,000385,000,000
and (y) 50.0% of LTM EBITDA of Acquired Debt assumed in Acquisitions permitted under Section 7.06; provided that any such
Debt of any Subsidiary is without any recourse to the Borrower or any other Subsidiary (including any other Guarantor);
80
(i) Acquired
Debt arising under Acquisitions permitted under Section 7.06 where the primary obligor thereof is a Guarantor so long as (i) such
Acquired Debt is unsecured, and (ii) such Acquired Debt is without recourse to the Borrower or any other Subsidiary (including any other
Guarantor);
(j) Debt
of the Borrower or a Subsidiary incurred pursuant to Permitted Receivables Transactions; provided that the unpaid principal or
equivalent amount thereunder shall not exceed an aggregate amount of the greater of (x) $200,000,000577,500,000
and (y) 75.0% of LTM EBITDA at any time outstanding;
(k) Debt
represented by (i) any Senior Notes and
(ii) any Uplift Notes;
(l) other
secured Debt secured by any Lien permitted under clauses (d)(1), (k)
or (l) of Section 7.02;
(m) any
Debt constituting an Investment permitted by Section 7.11 (other than Section 7.11(e));
(n) other
secured or unsecured Debt of the Borrower or any of its Restricted Subsidiaries in an aggregate unpaid principal amount not to exceed
the greater of (x) $75,000,000231,000,000
and (y) 30.0% of LTM EBITDA at any time outstanding;
(o) other
unsecured Debt incurred by the Borrower provided, that, immediately before and immediately after the incurrence of such Debt,
no Event of Default or Default exists; and
(p) other
unsecured Debt incurred by any Restricted Subsidiary to Guarantee Debt incurred by the Borrower as permitted by Section 7.01(o) provided
that such Subsidiary also contemporaneously Guarantees the Borrower’s Obligations under this Agreement pursuant to a Guaranty substantially
identical to the Guaranty.;
(q) other
unsecured Debt incurred by the Borrower or any of its Restricted Subsidiaries; in each case with a maturity date on or after the date
that is 91 days after the Maturity Date then in effect; provided that after giving pro forma effect to the incurrence of such Debt, the
Adjusted Total Debt to EBITDA Ratio shall not exceed 4.05:1.00; and
(r) Debt
incurred by the Borrower or any of its Restricted Subsidiaries under any revolving credit facilities (including any revolving credit
facilities of the Uplift Company and its Subsidiaries) in an aggregate principal amount not to exceed the greater of (x) $100,000,000
and (y) 8.0% of LTM EBITDA at any time outstanding.
7.02 Liens.
Not, and not permit any Restricted Subsidiary to, create or permit to exist any Lien on any of its real or personal properties, assets
or rights of whatsoever nature (whether now owned or hereafter acquired), except:
(a) Liens
for taxes, assessments or other governmental charges that are not yet due and payable or the payment of which is not at the time required
by Section 6.04;
(b) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case incurred in the
ordinary course of business and not in connection with borrowed money, for sums not yet due and payable or the payment of which is being
contested in good faith by appropriate proceedings;
81
(c) Liens
(other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers’
compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters
of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capital
Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made
in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property;
(d) Liens
securing (1) recourse Debt incurred by the Borrower or any Restricted Subsidiary
(or any Person in which the Borrower or any Restricted Subsidiary shall be the beneficial owner), provided that (x) such Lien is restricted
to aircraft, engines and/or parts that are intended for lease, consignment or sale to a Person other than the Borrower or a Restricted
Subsidiary and (y) the aggregate amount of all such secured Debt at any time outstanding shall not exceed $50,000,000 and (2) Nonrecourse
Debt incurred by the Borrower or any Restricted Subsidiary (or any Person in which the Borrower or any Restricted Subsidiary shall be
the beneficial owner), provided that such Lien is restricted to aircraft and,
engines and the lease thereof/or
parts that are intended for lease, consignment or sale to a Person other than the Borrower or a Restricted Subsidiary;
(e) any
attachment or judgment Lien; provided, that the judgment it secures shall, within 60 days after the entry thereof, have been discharged
or execution thereof stayed pending appeal, or shall have been discharged within 60 days after the expiration of any such stay, or could
not reasonably be expected to have a Material Adverse Effect;
(f) Liens
on property or assets of the Borrower or any of its Restricted Subsidiaries securing Debt owing to the Borrower or to another Restricted
Subsidiary;
(g) Liens
in existence on the Amendment No. 13
Effective Date and listed on Schedule 7.02 or included on any amended and
restated Schedule 7.02 delivered pursuant to Amendment No. 3 on or about the Uplift Closing Date,
and any Lien granted as a replacement or substitute therefor; provided that any such replacement or substitute Lien does not secure
an aggregate amount of IndebtednessDebt
or other obligations, if any, greater than that secured on the Amendment No. 13
Effective Date or the Uplift Closing Date, as applicable (except
to the extent such increase would otherwise be permitted by this Section 7.02);
(h) leases
or subleases (including aircraft or engine leases) granted to others, easements, rights-of-way, restrictions and other similar charges,
encumbrances or survey exceptions, in each case incidental to, and not interfering with, the ordinary conduct of the business of the
Borrower or any of its Restricted Subsidiaries, provided that such Liens do not, in the aggregate, Materially detract from the
value of such property;
(i) the
interest of the lessor of any property subject to a lease (other than a Capital Lease) of such property under which the Borrower or any
Restricted Subsidiary is lessee, whether or not such interest is protected by a precautionary filing;
(j) any
Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Borrower or a Restricted Subsidiary
or its becoming a Restricted Subsidiary, or any Lien existing on any property acquired by the Borrower or any Restricted Subsidiary at
the time such property is so acquired (whether or not the Debt secured thereby shall have been assumed), provided that (i) no
such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Restricted
Subsidiary or such acquisition of property, and (ii) each such Lien shall extend solely to the item or items of property so acquired
and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to or is acquired
for specific use in connection with such acquired property;
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(k) any
Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase
price or cost of construction, of property (or any improvement thereon) acquired or constructed by the Borrower or a Restricted Subsidiary
after the Closing Date, provided that:
(i) any
such Lien shall extend solely to the item or items of such property (or improvement thereon) so acquired or constructed and, if required
by the terms of the instrument originally creating such Lien, other property (or improvement thereon) which is an improvement to or is
acquired for specific use in connection with such acquired or constructed property (or improvement thereon) or which is real property
being improved by such acquired or constructed property (or improvement thereon),
(ii) the
principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Borrower
or such Restricted Subsidiary of the property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined
in good faith by a Responsible Officer of the Borrower) of such property (or improvement thereon) at the time of such acquisition or
construction,
(iii) in
the case of inventory, the net book value, net of applicable reserves, of all inventory subject to such Liens shall not at any time exceed
20% of the aggregate net book value, net of applicable reserves, of all inventory of the Borrower and its Restricted Subsidiaries, and
(iv) any
such Lien shall be created contemporaneously with, or within 365 days after, the acquisition or construction of such property;
(l) any
Lien renewing, extending or refunding any Lien permitted by paragraphs (g), (j) and (k) of this Section 7.02, provided
that (i) the principal amount of Debt secured by such Lien immediately prior to such extension, renewal or refunding is not increased
or the maturity thereof reduced, (ii) such Lien is not extended to any other property, and (iii) immediately after such extension, renewal
or refunding no Default or Event of Default would exist;
(m) Liens
on notes or accounts receivable sold by the Borrower or any Restricted Subsidiary (or any related security, collections or proceeds with
respect thereto or, if applicable, any segregated bank account established for the purpose of holding, among other things, collections
and proceeds with respect to such accounts receivable), incurred pursuant to Permitted Receivables Transactions; provided that
the unpaid principal amount of Debt or other obligations secured by such Liens shall not exceed the greater of (x) $200,000,000577,500,000
and (y) 75.0% of LTM EBITDA at any time outstanding; and
(n) Liens
not otherwise permitted under this Section 7.02 so long as the outstanding principal amount of the obligations secured thereby
does not exceed the greater of (x) $75,000,000231,000,000
and (y) 30.0% of LTM EBITDA at any time outstanding.;
and
(o) Liens
securing Debt incurred in compliance with clause (k)(ii) (including any Lien on or in connection with the funding of the Uplift Notes
(or the Uplift Bridge Facility or any other Debt incurred in lieu thereof) into an escrow account prior to the Uplift Closing Date (including
any account pledge and/or account control arrangement and any Liens on the deposits and assets held in such account)) or (r) of Section
7.01.
83
Notwithstanding
the foregoing, following the occurrence of a Covenant Fall-Away Event, the Borrower may elect by written notice to the Administrative
Agent to be subject to this paragraph (a “Liens Covenant Election”). From and after a Liens Covenant Election, the restrictions
set forth in the foregoing provisions of this Section 7.02 shall no longer apply and this paragraph shall be the only restriction on
Liens under this Agreement, and the Borrower shall not, and shall not permit any Principal Property Subsidiary to, create or permit to
exist any Lien on (i) any Restricted Property or (ii) any shares of Equity Interests or evidence of indebtedness for borrowed money issued
by any Principal Property Subsidiary, without making effective provision, and the Borrower in such case shall make or cause to be made
effective provision, whereby the Obligations shall be secured by such Lien equally and ratably with the obligations secured thereby,
so long as such obligations shall be so secured; provided, however that the foregoing restriction shall not apply to any of the following:
(i) Liens
existing on the date on which the Covenant Fall-Away Event occurs;
(ii) Liens
on property, shares of Equity Interests or evidence of Debt of any corporation existing at the time such corporation becomes a Guarantor;
(iii) Liens
in favor of the Borrower or any Guarantor;
(iv) Liens
in favor of any Governmental Authority to secure progress, advance or other payments pursuant to a contract or statute or Debt incurred
to finance all or any portion of the construction of or improvements to property subject to such Liens;
(v) Liens
(i) on property, shares of Equity Interests or evidence of Debt for borrowed money existing at the time such property, shares or evidence
of Debt is acquired (including through merger, amalgamation or consolidation) and Liens relating to construction or improvements entered
into within one year after the applicable construction or improvement; provided that, in the case of construction or improvements, such
Liens shall not extend to property previously owned by the Borrower or any Guarantor other than substantially unimproved real property
on which the property constructed or the improvement is located, and (ii) created within 180 days after completion of the acquisition
of real property to secure or provide for payment of the purchase price of the real property acquired; provided, further, that the Liens
described in clauses (i) and (ii) shall not extend to any other property of the Borrower or any of the Guarantors, whether then owned
or thereafter acquired;
(vi) mechanics',
landlords' and similar Liens arising in the ordinary course of business in respect of obligations not yet due or being contested in good
faith;
(vii) Liens
for taxes, assessments or governmental charges or levies that are not yet due and payable or are being contested in good faith by appropriate
proceedings; provided that any reserve or other appropriate provision required under GAAP has been made therefor and, in the case of
any such contest, such contest effectively suspends collection of the contested obligation and enforcement of any Lien securing such
obligation;
(viii) Liens
arising out of legal proceedings being contested in good faith;
84
(ix) Liens
that (i) are incidental to the ordinary conduct of business or the ownership of properties and assets, including Liens incurred in connection
with workers' compensation, unemployment insurance or other forms of governmental insurance or benefits or to secure the performance
of tenders, statutory obligations, leases and contracts, (ii) are not incurred in connection with the borrowing of money or the obtaining
of advances or credit and (iii) do not, in the aggregate, materially detract from the value of the property of the Borrower or any Guarantor
or materially impair the use thereof in the operation of its business; and
(x) Liens
for the sole purpose of extending, renewing or replacing, in whole or in part, any of the foregoing Liens.
7.03 Restricted
Payments. Not, and not permit any Restricted Subsidiary to, (a) make any distribution to any holders of its Equity
Interests, (b) purchase or redeem any of its Equity Interests, or (c) set aside funds for any of the foregoing.
Notwithstanding the foregoing, (i) any Subsidiary may pay dividends or make other distributions to, and purchase or redeem
Equity Interests from, the Borrower or a domestic Wholly-Owned Subsidiary; (ii) any Foreign Subsidiary may pay dividends or
make other distributions to, and purchase or redeem Equity Interests from, the Borrower or any other Subsidiary; (iii) the
Borrower and its Restricted Subsidiaries may pay dividends and make other distributions, and purchase or redeem Equity Interests, in
connection with the Triumph Transactions; (iv) the Borrower may pay dividends or make other
distributions to, and purchase or redeem Equity Interests from, the holders of its Equity Interests in an aggregate amount not to
exceed the greater of (x) $95,000,000 and 35.0% of LTM EBITDA; and (v) so long as no Event of Default or
Defaultunder Section 8.01(a) or
(g) exists or would result therefrom, the Borrower may pay dividends or make other distributions to, and purchase or
redeem Equity Interests from, the holders of its Equity Interests. in
an aggregate amount not to exceed the greater of (x) $269,500,000 and (y) 35.0% of LTM EBITDA; and (v) (x) so
long as no Event of Default or Default exists or would result therefrom, the Borrower and each Restricted Subsidiary may pay
dividends or make other distributions to, and purchase or redeem Equity Interests from, the holders of their respective Equity
Interests and (y) each Restricted Subsidiary may, solely in connection with the Uplift Transactions, pay dividends or make
other distributions to, and purchase or redeem Equity Interests from, the holders of its Equity Interests.
7.04 Mergers
and Consolidations. Not, and not permit any Restricted Subsidiary to, consolidate with or merge with any other corporation or convey,
transfer or lease substantially all of its assets in a single transaction or series of transactions to any Person (except that a Restricted
Subsidiary of the Borrower may (x) consolidate with or merge with, or convey, transfer or lease substantially all of its assets in a
single transaction or series of transactions to, the Borrower or another Restricted Subsidiary of the Borrower or any other Person that
will, after giving effect to the consummation of such transaction or series of transactions, constitute a Restricted Subsidiary and (y)
convey, transfer or lease all of its assets in compliance with the provisions of Section 7.05), provided that the foregoing
restriction does not apply to (1) any consolidation or merger in order to consummate an Acquisition not prohibited by Section 7.06
or any other Investment not prohibited by Section 7.11 or (2) the consolidation or merger of the Borrower with, or the conveyance,
transfer or lease of substantially all of the assets of the Borrower in a single transaction or series of transactions to, any Person,
in each case, so long as (i) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by
conveyance, transfer or lease substantially all of the assets of the Borrower, as the case may be (the “Successor Corporation”),
shall be a solvent corporation, limited liability company or other limited liability entity organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia, (ii) the Successor Corporation (if not the Borrower) agrees
in writing to assume all of the obligations of the Borrower under this Agreement and each other Loan Document to which the Borrower is
a party, and (iii) immediately after giving effect to such transaction no Default or Event of Default would exist. No such conveyance,
transfer or lease of substantially all of the assets of the Borrower shall have the effect of releasing the Borrower or any Successor
Corporation from its liability under this Agreement or the Loan Documents.
85
7.05 Sale
of Assets, Etc.. Except as permitted under Section 7.04 or in connection with an Acquisition not prohibited by Section
7.06, not, and not permit any of its Restricted Subsidiaries to, make any Asset Dispositions unless:
(a) in
the good faith opinion of the Borrower, the Asset Disposition is in exchange for consideration having a Fair Market Value at least equal
to that of the property exchanged;
(b) immediately
after giving effect to the Asset Disposition (or, at the option of the Borrower, at the time of entry into a legally binding commitment
with respect to such Asset Disposition), no Default or Event of Default would exist; and
(c) immediately
after giving effect to the Asset Disposition, the Disposition Value of all property that was the subject of any Asset Disposition
(other than any Transfers pursuant to clause (ii) below) occurring in the then current Fiscal Year of the Borrower would not exceed
10% of Consolidated Assets as of the end of the then most recently ended Fiscal Year of the Borrower (with
unused capacity under this clause (c) in any Fiscal Year carried forward to the immediately succeeding Fiscal Year
only).
If the Net Proceeds Amount for any Transfer is
applied to a Debt Prepayment Application or a Property Reinvestment Application within 365 days after such Transfer or, if a letter of
intent or binding commitment to reinvest such Net Proceeds Amount is entered into within such 365-day period, within 545 days after such
Transfer, then, in each case, such Transfer, only for the purpose of determining compliance with subsection (c) of this Section as of
a date on or after the Net Proceeds Amount is so applied, shall be deemed not to be an Asset Disposition.
Notwithstanding the foregoing, the Borrower and
its Restricted Subsidiaries may (i) enter into any Permitted Receivables Transaction permitted under Section 7.01 and,
(ii) make Transfers for Fair Market Value related to any potential Disposition of the assets set forth on Schedule 7.05 as of
the Amendment No. 13
Effective Date or included on any amended and restated Schedule 7.05 delivered
pursuant to Amendment No. 3 on or about the Uplift Closing Date and (iii) consummate the Uplift Transactions.
7.06 Acquisitions.
Not, and not permit any Restricted Subsidiary to, acquire all or substantially all of the assets or any Equity Interests of any class
of, or any partnership or joint venture interest in, any other Person, except for any Acquisition by the Borrower or any domestic Wholly-Owned
Subsidiary that is a Restricted Subsidiary where:
(a) the
business or division acquired are for use, or the Person acquired is engaged, in a business which would not cause the general nature
of the business in which the Borrower and its Restricted Subsidiaries, taken as a whole, are engaged immediately after giving effect
to such Acquisition to be substantially changed from the general nature of the business in which the Borrower and its Restricted Subsidiaries,
taken as a whole, are engaged on or immediately prior to the Amendment No. 13
Effective Date;
(b) immediately
before and after giving effect to such Acquisition, no Event of Default or Default shall exist;
(c) immediately
after giving effect to such Acquisition, the Borrower is in pro forma compliance with all the financial ratios and restrictions set forth
in Section 7.13; provided, that (x) the Borrower shall calculate such pro forma compliance based upon the most-recent trailing
twelve month historical financial statements for the Borrower and the target to be acquired, (y) all such information for the Borrower
and the target shall be used and shall comply with the defined terms (such as, for example, Consolidated Net Income) used in this Agreement
to calculate, among other things, financial covenants, and (z) the following formula shall be used to determine the target’s EBITDA:
Consolidated Net Income plus, to the extent deducted in determining such Consolidated Net Income, Interest Expense, income and
franchise tax expense, depreciation and amortization; and
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(d) in
the case of the Acquisition of any Person, the board of directors or similar governing body of such Person has approved such Acquisition
prior to the occurrence thereof;
(e) to
the extent available, reasonably prior to such Acquisition, the Administrative Agent shall have received complete executed or conformed
copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien
search reports and lien release letters and other documents as the Administrative Agent may require to evidence the termination of Liens
on the assets or business to be acquired (except to the extent the Borrower or a Restricted Subsidiary is assuming such Liens pursuant
to the Acquisition);
(f) to
the extent available, Borrower shall use reasonable efforts prior to such Acquisition to provide the Administrative Agent an acquisition
summary with respect to the Person and/or business or division to be acquired, such summary to include a reasonably detailed description
thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for
which they are available and as otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition,
and the Borrower’s calculation of pro forma EBITDA relating thereto; and
(g) if
the Acquisition is structured as a merger, the Borrower or a Restricted Subsidiary is the surviving entity (including a surviving entity
that becomes a Restricted Subsidiary);
provided that (i) clauses
(e) and (f) shall apply only if the consideration paid in connection with the Acquisition is greater than the greater of (x) $30,000,00092,400,000
and (y) 12.0% of LTM EBITDA and,
(ii) nothing in this Section 7.06 shall be deemed to restrict the Triumph Transactions,
the Uplift Transactions or any Investment permitted by Section 7.11(j).
7.07 [Reserved].
7.08 Transactions
with Affiliates. Not, and not permit any Restricted Subsidiary to, enter into, or cause, suffer or permit to exist any transaction,
arrangement or contract with any of its Affiliates (other than its Subsidiaries) involving aggregate payments or consideration in excess
of the greater of (x) $15,000,00046,200,000
and (y) 6.0% of LTM EBITDA which is on terms which are materially less favorable to the Borrower or such Restricted Subsidiary than are
obtainable in a comparable transaction by the Borrower or such Restricted Subsidiary with any Person which is not one of its Affiliates,
except:
(a) transactions
permitted by Section 7.03;
(b) transactions
pursuant to compensatory, benefit and incentive plans and similar agreements with officers, directors, managers or employees of the Borrower
or any of its Restricted Subsidiaries;
(c) the
Triumph Transactions and the payment of all fees and expenses related to the Triumph Transactions and
the Uplift Transactions and the payment of all fees and expenses related to the Uplift Transactions;
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(d) the
issuance or transfer of Equity Interests of the Borrower and the granting and performance of customary registration rights;
(e) sales
of accounts receivable, or participations therein, in connection with any Permitted Receivables Transactions;
(f) any
transaction in which the only consideration paid by the Borrower or any Restricted Subsidiary consists of Equity Interests of the Borrower;
(g) any
lease entered into between the Borrower or any Restricted Subsidiary and any Affiliate of the Borrower in the ordinary course of business;
(h) intellectual
property licenses in the ordinary course of business;
(i) transactions
between the Borrower or any of its Restricted Subsidiaries and any Person that would constitute a transaction with an Affiliate solely
because a director of which is also a director of the Borrower or any other direct or indirect parent of the Borrower; provided,
however, that such director abstains from voting as a director of the Borrower or such direct or indirect parent of the Borrower,
as the case may be, on any matter involving such other Person; and
(j) transactions
with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business.
7.09 Inconsistent
Agreements. Not, and not permit any Restricted Subsidiary to, enter into any agreement, document or instrument after the Closing
Date containing any provision which would (a) be violated or breached by any borrowing by the Borrower hereunder or by the performance
by the Borrower of any of its Obligations hereunder or under any other Loan Document, (b) prohibit the Borrower or any Restricted Subsidiary
from granting to the Administrative Agent and the Lenders, a Lien on any of its assets (other than any provision in any agreement relating
to Debt secured by Liens permitted under Section 7.02(k), Acquired Debt, Nonrecourse Debt or Permitted Receivables Transactions
that prohibits the Borrower or such Restricted Subsidiary from granting a Lien to the Administrative Agent and the Lenders upon the asset
or assets which secure such Debt or otherwise directly corresponding with such financing), or (c) create or permit to exist or become
effective any encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make other distributions
to the Borrower or any Wholly-Owned Subsidiary, or pay any Debt owed to the Borrower or any other Restricted Subsidiary, (ii) make loans
or advances to the Borrower or any Restricted Subsidiary or (iii) transfer any of its assets or properties to the Borrower or any Restricted
Subsidiary, other than, in each case of clause (a) through (c), (A) customary restrictions and conditions contained in agreements relating
to the sale of all or a substantial part of the assets of any Subsidiary pending such sale, provided that such restrictions and
conditions apply only to the Subsidiary to be sold and such sale is permitted hereunder, (B) restrictions or conditions, other than
those prohibited by clause (b), imposed by any agreement relating to Debt secured by Liens permitted under Section 7.02(k), Acquired
Debt, Nonrecourse Debt, Permitted Receivables Transactions and other secured Debt permitted by this Agreement, (C) restrictions or conditions,
other than those prohibited by clause (b), imposed by any agreement relating to other Debt not prohibited by Section 7.01, to
the extent such restrictions are not materially more restrictive than the restrictions contained in this Agreement, as determined in
good faith by the Borrower, (D) any agreement in effect at the time a Person becomes a Restricted Subsidiary, so long as such agreement
was not entered into in contemplation of such Person becoming a Restricted Subsidiary, (E) any restrictions imposed pursuant to the Triumph
Acquisition Agreement, the Uplift Acquisition Agreement, the Uplift Intercompany
Loan Agreement, the Uplift Intercompany Services Agreement or the Uplift LLC Agreement, (F) restrictions or conditions in the
documentation governing any Senior Notes that are not materially more restrictive than the restrictions contained in the Senior Notes
Indenture, as determined in good faith by the Borrower, and (G) customary provisions in leases and other contracts restricting the assignment
thereof.
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7.10 Business
Activities. Not, and not permit any of its Restricted Subsidiaries to, engage in any business if, as a result, the general nature
of the business in which the Borrower and its Restricted Subsidiaries, taken as a whole, would then be engaged would be substantially
changed from the general nature of the business in which the Borrower and its Restricted Subsidiaries, taken as a whole, are engaged
on the Amendment No. 13
Effective Date.
7.11 Investments.
Not, and not permit any Restricted Subsidiary to, make or permit to exist any Investment in any other Person, except the following:
(a) contributions
by the Borrower to the capital of any Wholly-OwnedRestricted
Subsidiary, or by any Subsidiary to the capital of any other domestic Wholly-OwnedRestricted
Subsidiary; provided, however, that neither the Borrower nor any Restricted Subsidiary shall make an Investment in an Unrestricted
Subsidiary to finance in whole or in part an Acquisition;
(b) Investments
in any Person that concurrently with such Investment becomes a Restricted Subsidiary;
(c) Investments
in property to be used in the ordinary course of business of the Borrower and its Restricted Subsidiaries;
(d) Investments
constituting Debt permitted by Section 7.01;
(e) Contingent
Liabilities constituting Debt permitted by Section 7.01 or Liens permitted by Section 7.02;
(f) Cash
Equivalent Investments;
(g) bank
deposits in the ordinary course of business;
(h) Investments
in securities of account debtors received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency
of such account debtors;
(i) (i)
Investments in a Restricted Subsidiary to permit the Restricted Subsidiary to consummate Acquisitions permitted by Section 7.06 and (ii)
Acquisitions permitted by Section 7.06;
(j) Investments
listed on Schedule 7.11 as of the Amendment No. 13
Effective Date or included on any amended and restated Schedule 7.11 delivered
pursuant to Amendment No. 3 on or about the Uplift Closing Date;
(k) treasury
stock;
(l) Investments
in Unrestricted Subsidiaries and other Investments, provided that immediately after giving effect to any such Investment the Borrower
is in compliance with Section 7.13 and no Event of Default or Default exists;
89
(m) Investments
of a Restricted Subsidiary acquired after the Closing Date or of a person merged into the Borrower or a Restricted Subsidiary after the
Closing Date, in each case, to the extent such Investments were not made in contemplation of or in connection with such acquisition or
merger and were in existence on the date of such acquisition or merger; and
(n) Investments
to effect the Triumph Transactions and Investments to effect the Uplift
Transactions;
(o) Investments
in an aggregate amount not to exceed the greater of (x) $385,000,000 and (y) 50.0% of LTM EBITDA at any time outstanding; and
(p) Investments;
provided that after giving pro forma effect to such Investment, the Adjusted Total Debt to EBITDA Ratio would be equal to or less than
3.80:1.00;
provided that (x) any
Investment which when made complies with the requirements of the definition of the term “Cash Equivalent Investment” may
continue to be held notwithstanding that such Investment if made thereafter would not comply with such requirements; (y) no Investment
otherwise permitted by clause (d), (e), or (i),
(o) or (p) shall be permitted to be made if, immediately before or after giving effect thereto, any Event of Default or Default
exists.
7.12 Fiscal
Year. Not change its Fiscal Year.
7.13 Financial
Covenants.
(a) Minimum
Interest Coverage Ratio. Not permit the Interest Coverage Ratio, as of the last day of any Computation Period, to be less than 3.002.00:1.00.
(b) Maximum
Adjusted Total Debt to EBITDA Ratio. Not permit the Adjusted Total Debt to EBITDA Ratio, as of the last day of any
Computation Period, to be greater than the ratio set forth in the chart
below for the last day of such Computation Period:
Last
Day of Computation Period
Maximum
Adjusted Total Debt to
EBITDA Ratio
May
31, 2024 to February 28, 2025
4.75:1.00
May
31, 2025 and August 31, 2025
4.50:1.00
November
30, 2025 and February 28, 2026
4.25:1.00
Thereafter
4.00:1.00
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(b) Maximum
Adjusted Total Debt to EBITDA Ratio. Not permit the Adjusted Total Debt to EBITDA Ratio, as of the last day of any Computation Period,
to be greater than (i) 5.50:1.00 for any Computation
Period ending prior to the First Covenant Date, (ii) 5.25:1.00 for any Computation Period ending on or after the First Covenant Date
but prior to the Second Covenant Date, (iii) 5.00:1.00 for any Computation Period ending on or after the Second Covenant Date but prior
to the Third Covenant Date, (iv) 4.75:1.00 for any Computation Period ending on or after the Third Covenant Date but prior to the Fourth
Covenant Date and (v) 4.50:1.00 for any Computation Period ending on or after the Fourth Covenant Date; provided
that, in connection with any Acquisition (whether by direct purchase, merger or otherwise and whether in a single transaction or series
of related transactions) consummated after the Amendment No. 13
Effective Date for which the aggregate purchase price in respect thereof is greater than or equal to $75,000,000 (any such acquisition,
a “Specified Acquisition”), the maximum permitted Adjusted Total Debt to EBITDA Ratio with respect to any Computation
Period ending on the last day of each of the four consecutive Fiscal Quarters commencing with the Fiscal Quarter in which such Specified
Acquisition occurs (each such period, an “Acquisition Holiday”) shall increase by 0.50:1.00 for four Fiscal Quarters
(including the Fiscal Quarter in which the Specified Acquisition closes); provided further that the
exercise of the AAR Initial Option (as defined in the Uplift LLC Agreement) and of the AAR Call Option with respect to a Call Right (each
as defined in the Uplift LLC Agreement) shall each be deemed a Specified Acquisition for purposes of this Section 7.13(b) and, notwithstanding
the foregoing, the maximum permitted Adjusted Total Debt to EBITDA Ratio during the Acquisition Holiday resulting from any such exercise
shall be the greater of (x) the maximum permitted Adjusted Total Debt to EBITDA Ratio then in effect and (y) 5.00:1.00 (including the
Fiscal Quarter in which such exercise occurs); provided further that (x) at the time of commencement of any such Acquisition Holiday,
no Event of Default shall have occurred and be continuing, (y) no Acquisition Holiday shall be available during the two (2) consecutive
Fiscal Quarters occurring immediately after any Acquisition Holiday shall have concluded (provided
that this clause (y) shall not apply to any Acquisition Holiday arising from the exercise of such AAR Initial Option or any such AAR
Call Option) and (z) notwithstanding the foregoing, in no event shall the maximum permitted Adjusted Total Debt to EBITDA Ratio
exceed 4.50during an Acquisition
Holiday resulting from a Specified Acquisition (other than an exercise of any such AAR Initial Option or any such AAR Call Option) exceed
the greater of (x) the maximum permitted Adjusted Total Debt to EBITDA Ratio then in effect and (y) 4.75:1.00 at any time (other
than as set forth in the chart above).
7.14 Fall-Away
Covenants
(a) Notwithstanding
anything herein to the contrary, at any time following the Amendment No. 3 Effective Date: (1) the Borrower has an Investment Grade Rating
from at least two Rating Agencies and (2) no Default or Event of Default has occurred and is continuing (the occurrence of the events
described in the foregoing clauses (1) and (2) being collectively referred to as a “Covenant Fall-Away Event”),
upon delivery of the officer’s certificate described in Section 7.14(b) below, beginning on the day of such delivery and continuing
until the Reversion Date (as defined below) (such period a “Suspension Period”), (i) the Guaranty will be automatically and
unconditionally released and discharged and (ii) the Borrower and the Restricted Subsidiaries shall not be subject to the provisions
of Sections 6.07, 7.01, 7.03, 7.05, 7.06, 7.08, 7.09, and 7.11, and upon the making of a Liens Covenant Election, Section 7.02 shall
thereafter apply as provided in the last paragraph thereof (“Fall-Away Covenants”).
(b) The
Borrower shall provide to the Administrative Agent a certificate signed by a Responsible Officer of the Borrower indicating the occurrence
of a Covenant Fall-Away Event.
91
(c) If,
after a Covenant Fall-Away Event, the condition in clause (1) of Section 7.14(a) ceases to be satisfied (a “Reversion Date”),
then (i) the Borrower shall promptly notify the Administrative Agent of the Reversion Date, (ii) the Fall-Away Covenants (including Section
7.02 without regard to any Liens Covenant Election) shall automatically apply again and any Liens Covenant Election shall terminate,
(ii) within thirty (30) days (or such longer period as the Administrative Agent may agree), the Borrower shall cause each Subsidiary
that would have been required to be a Guarantor had no Covenant Fall-Away Event occurred to become a Guarantor. Notwithstanding anything
in Section 7.14(c) or anything else in this Agreement to the contrary, (x) on and after each Reversion Date, the Borrower and any Restricted
Subsidiary will, in each case, be permitted to consummate the transactions contemplated by any contract entered into during the Suspension
Period and (y) (1) any Debt incurred during any Suspension Period will be classified to have been incurred pursuant to Section 7.01(f)
as if it had been scheduled on Schedule 7.01; (2) any Lien granted during any Suspension Period will be classified to have been granted
pursuant to Section 7.02(g) as if it had been scheduled on Schedule 7.02; (3) any Restricted Payment made during any Suspension Period
will be deemed to have been permitted under Section 7.03, and any Restricted Payment made on or after each Reversion Date pursuant to
any agreement, document or instrument entered into during any Suspension Period will be deemed to have been permitted under Section 7.03
as if such payment was made during a Suspension Period; (4) any Transfer made after such Reversion Date pursuant to an agreement entered
into during any Suspension Period shall be deemed to be permitted pursuant to clause (ii) of the last paragraph of Section 7.05 as if
the assets subject thereto had been scheduled on Schedule 7.05; (5) any acquisition consummated during any Suspension Period will be
deemed to have been permitted under Section 7.06; (6) any agreement, document or instrument entered into during any Suspension Period
that contains restrictions of the type described in Section 7.09 will be deemed to have been permitted under Section 7.09, and the continued
performance by the Borrower or any Restricted Subsidiary party to such agreements, documents or instruments after such Reversion Date
will not constitute a breach of Section 7.09; and (7) any Investment made during any Suspension Period will be classified to have been
made pursuant to Section 7.11(j) as if it had been scheduled on Schedule 7.11; provided that the foregoing actions described in clauses
(x) and (y) would have been permitted during any such Suspension Period.
7.15 Amendments
to Uplift Intercompany Loan Agreement. Not, and not permit any Restricted Subsidiary to, amend, supplement, waive or otherwise modify
any provision of the Uplift Intercompany Loan Agreement in any manner that is materially adverse to the Lenders without the prior written
consent of the Required Lenders (such consent not to be unreasonably withheld, conditioned or delayed).
ARTICLE
VIII. EVENTS OF DEFAULT AND REMEDIES
8.01 Events
of Default. Any of the following shall constitute an Event of Default:
(a) Non-Payment.
The Borrower or any other Loan Party fails to pay (i) when and as (A)
when and as required to be paid herein, any
amount of principal of any Loan or (B) within five
days after the same is required to be paid herein or under the Guaranty, any
amount of principal of any Loan, any L/C Obligation or any payment due
under the Guaranty, or (ii) within five days after the same becomes due and the Borrower or any other Loan Party shall have received
notice of the amount due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five days
after the same becomes due, any other amount payable hereunder or under any other Loan Document; or
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(b) Non-Payment
of Other Debt. Any default shall occur under the terms applicable to any Debt of the Borrower or any Significant Subsidiary in an
aggregate amount (for all such Debt so affected and including undrawn committed or available amounts and amounts owing to all creditors
under any combined or syndicated credit arrangement) exceeding the greater of (x) $95,000,000269,500,000
and (y) 35.0% of LTM EBITDA and such default shall (i) consist of the failure to pay such Debt when due, whether by acceleration or otherwise,
or (ii) accelerate the maturity of such Debt or permit the holder or holders thereof, or any trustee or agent for such holder or holders,
to cause such Debt to become due and payable (or require the Borrower or any Restricted Subsidiary to purchase or redeem such Debt or
post cash collateral in respect thereof) prior to its expressed maturity; or
(c) Specific
Covenants. The Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.01(e) (other
than clause (i)(y) thereof), 6.05, 7.01, 7.02, 7.03, 7.04,
7.05, 7.06 or 7.13; or
(d) Other
Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (c) above)
contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days; or
(e) Hedging
Agreements. There occurs under any Hedging Agreement an early termination date resulting from (A) any event of default
under such Hedging Agreement as to which the Borrower or any Subsidiary
is the defaulting party or (B) any termination event under such Hedging Agreement as to which the Borrower or any Subsidiary is an affected
party and, in either event, the Hedging Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than
the greater of (x) $47,500,000
and (y) 18.0% of LTM EBITDA; or
(e) [Reserved];
or
(f) Representations
and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower
or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect when made or deemed made; or and,
to the extent capable of being cured, such representation, warranty, certification or statement of fact is not corrected or clarified
within 30 days after the earlier of (A) the date on which a Responsible Officer of the Borrower becomes aware thereof and (B) the date
on which written notice thereof shall have been given to the Borrower by the Administrative Agent or the Required Lenders; or
(g) Insolvency
Proceedings, Etc. The Borrower or any of its Significant Subsidiaries institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application
or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor
Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person
and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or
(h) Inability
to Pay Debts; Attachment. (i) The Borrower or any Significant Subsidiary becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is
issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within
60 days after its issue or levy; or
(i) Judgments.
There is entered against the Borrower or any Significant Subsidiary one or more final judgments or orders for the payment of money in
an aggregate amount (as to all such judgments or orders) exceeding the greater of (x) $95,000,000269,500,000
and (y) 35.0% of LTM EBITDA (to the extent not covered by independent third-party insurance as to which the insurer does not dispute
coverage) and (i) enforcement proceedings are commenced by any creditor upon such judgment or order, or (ii) there is a period
of 60 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;
or
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(j) ERISA.
(i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan or (ii) the Borrower or any ERISA Affiliate fails to pay
when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan, and in each case of clauses (i) and (ii) such event, together with all other such events,
if any, would reasonably be expected to have a Material Adverse Effect; or
(k) Invalidity
of Loan Documents; Effectiveness of Guaranty. Any material provision of any Loan Document, at any time after its execution and delivery
and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to
be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any material
provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document,
or purports to revoke, terminate or rescind any material provision of any Loan Document; or
(l) Change
of Control. There occurs any Change of Control.
Notwithstanding
anything to the contrary in this Agreement, if any Default or Event of Default occurs and the Borrower delivers to the Administrative
Agent written notice of such Default or Event of Default and the Administrative Agent and the Lenders do not exercise any of their remedies
under the terms of this Agreement or any other Loan Document for the two year period following the date on which notice of such Default
or Event of Default, as applicable, is delivered to the Administrative Agent and the Lenders (an “Uncalled Default”), such
Uncalled Default and any other Default or Event of Default which would not have arisen had such Uncalled Default not occurred shall be
deemed not to be continuing automatically at the end of such two year period (regardless of whether such Default or Event of Default
was still continuing at such time).
8.02 Remedies
Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may,
with the consent of, the Required Lenders, take any or all of the following actions:
(a) declare
the Commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon
such Commitments and obligation shall be terminated;
(b) declare
the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby expressly waived by the Borrower;
(c) require
that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
(d) exercise
on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the
Loan Documents;
provided, however, that upon the
occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States,
the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate,
the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and
payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective,
in each case without further act of the Administrative Agent or any Lender.
94
8.03 Application
of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately
due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02),
any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.17 and 2.18, be applied
by the Administrative Agent in the following order:
First, to payment
of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements
of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its
capacity as such;
Second, to payment
of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit
Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the
L/C Issuer and amounts payable under Article III), ratably among them in proportion to the respective amounts described in
this clause Second payable to them;
Third, to payment
of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and
other Obligations, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Third
payable to them;
Fourth, to payment
of that portion of the Obligations constituting unpaid principal of the Loans, L/C Borrowings, Hedging Obligations and Bank Product Obligations,
ratably among the Lenders or their Affiliates and the L/C Issuer in proportion to the respective amounts described in this clause Fourth
held by them;
Fifth, to the Administrative
Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount
of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.04 and 2.17;
and
Last, the balance,
if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Sections 2.04(c) and 2.17,
amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied
to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters
of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order
set forth above.
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ARTICLE
IX. ADMINISTRATIVE AGENT
9.01 Appointment
and Authority. Each of the Lenders and the L/C Issuer hereby irrevocably appoints Wells Fargo to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers
as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders
and the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions.
It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar
term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect
only an administrative relationship between contracting parties.
9.02 Rights
as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender”
or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving
as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money
to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower
or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account
therefor to the Lenders.
9.03 Exculpatory
Provisions. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the
other Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent:
(a) shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b) shall
not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and
(c) shall
not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person
serving as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent
shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own
gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until
notice describing such Default is given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.
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The Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
9.04 Reliance
by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, internet
or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it
to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of
a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer
unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of
such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
9.05 Delegation
of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.
The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and
any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct
of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that
the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
9.06 Resignation
of Administrative Agent. The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and
the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower,
to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in
the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may
on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above; provided
that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all payments, communications
and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the
L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative
Agent.
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9.07 Non-Reliance
on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the L/C Issuer also acknowledges
that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking
or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder
or thereunder.
9.08 No
Other Duties, Etc. Anything herein to the contrary notwithstanding, no Arrangers listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative
Agent, a Lender or the L/C Issuer hereunder.
9.09 Administrative
Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding
relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the
claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts
due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.04(h) and (i), 2.10 and 10.04)
allowed in such judicial proceeding; and
(b) to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments
to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the
Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.10
and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrative Agent
to vote in respect of the claim of any Lender or the L/C Issuer in any such proceeding.
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9.10 Guaranty
Matters.
(a) A
Guarantor shall automatically be released from its obligations under the Guaranty if such Guarantor (i) ceases to be a Restricted Subsidiary
or (ii) becomes an Excluded Subsidiary, in each case as a result of a transaction permitted hereunder; provided that, notwithstanding
the foregoing, no Guarantor shall be released from its obligations under the Guaranty as a result of becoming an Excluded Subsidiary solely
because such Subsidiary is no longer a wholly-owned Subsidiary of the Borrower unless such Subsidiary became a non-wholly owned Subsidiary
pursuant to a permitted transaction with a Person that is not an Affiliate of the Borrower for a bona fide business purpose as determined
by the Borrower in good faith (other than to release such Subsidiary from its obligations under the Guaranty).
(b) At
such time as all Commitments have expired or terminated, all Obligations hereunder and under the other Loan Documents have been paid in
full (other than contingent or indemnification obligations which survive the termination of this Agreement) and all Letters of Credit
have been terminated (or cash collateralized or backstopped in a manner reasonably satisfactory to the applicable L/C Issuer), the Guaranty
and all obligations of each Guarantor thereunder shall automatically terminate, all without delivery of any instrument or performance
of any act by any Person.
(c) In
connection with any such termination or release pursuant to this Section 9.10, the Administrative Agent shall (and the Lenders and the
L/C Issuers irrevocably authorize the Administrative Agent to) execute and deliver to any Loan Party, at such Loan Party’s expense,
all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents
pursuant to this Section 9.10 shall be without recourse to or warranty by the Administrative Agent. Upon request by the Administrative
Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Guarantor from
its obligations under the Guaranty pursuant to this Section 9.10.
9.11 Syndication
Agents. None of the Lenders identified in this Agreement as a Syndication Agent shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of
such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments
with respect to such Lenders as it makes with respect to the Administrative Agent in Section 9.07.
9.12 Certain
ERISA Matters.
(a) Each
Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such
Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative
Agent and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or
any other Loan Party, that at least one of the following is and will be true:
(i) such
Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit
Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters
of Credit, the Commitments or this Agreement,
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(ii) the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent
qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts),
PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption
for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined
by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and
performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii) (A)
such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE
84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate
in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation
in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements
of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a)
of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance
of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv) such
other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and
such Lender.
(b) In
addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has
provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such
Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date
such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative
Agent and the Arrangers and their respective Affiliates and not, for the avoidance of doubt, to or for the benefit of the Borrower or
any other Loan Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s
entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement
(including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document
or any documents related hereto or thereto).
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9.13 Erroneous
Payments.
(a) Each
Lender, each L/C Issuer and any other party hereto hereby severally agrees that if (i) the Administrative Agent notifies (which such notice
shall be conclusive absent manifest error) such Lender or L/C Issuer (Affiliate thereof) or any other Person that has received funds from
the Administrative Agent or any of its Affiliates, either for its own account or on behalf of a Lender or L/C Issuer (each such recipient,
a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion that any funds received
by such Payment Recipient were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient
(whether or not known to such Payment Recipient) or (ii) any Payment Recipient receives any payment from the Administrative Agent (or
any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment
or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable,
(y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its
Affiliates) with respect to such payment, prepayment or repayment, as applicable, or (z) that such Payment Recipient otherwise becomes
aware was transmitted or received in error or by mistake (in whole or in part) then, in each case, an error in payment shall be presumed
to have been made (any such amounts specified in clauses (i) or (ii) of this Section 9.13, whether received as a payment, prepayment
or repayment of principal, interest, fees, distribution or otherwise; individually and collectively, an “Erroneous Payment”),
then, in each case, such Payment Recipient is deemed to have knowledge of such error at the time of its receipt of such Erroneous Payment;
provided that nothing in this Section shall require the Administrative Agent to provide any of the notices specified in clauses
(i) or (ii) above. Each Payment Recipient agrees that it shall not assert any right or claim to any Erroneous Payment, and hereby waives
any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative
Agent for the return of any Erroneous Payments, including without limitation waiver of any defense based on “discharge for value”
or any similar doctrine.
(b) Without
limiting the immediately preceding clause (a), each Payment Recipient agrees that, in the case of clause (a)(ii) above, it shall promptly
notify the Administrative Agent in writing of such occurrence.
(c) In
the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall at all times remain the property of the Administrative
Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and upon demand
from the Administrative Agent such Payment Recipient shall (or, shall cause any Person who received any portion of an Erroneous Payment
on its behalf to), promptly, but in all events no later than two Business Days thereafter, return to the Administrative Agent the amount
of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds and in the currency so received,
together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received
by such Payment Recipient to the date such amount is repaid to the Administrative Agent at the Overnight Rate.
(d) In
the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor
by the Administrative Agent in accordance with immediately preceding clause (c), from any Lender that is a Payment Recipient or an Affiliate
of a Payment Recipient (such unrecovered amount as to such Lender, an “Erroneous Payment Return Deficiency”), then
at the sole discretion of the Administrative Agent and upon the Administrative Agent’s written notice to such Lender (i) such Lender
shall be deemed to have made a cashless assignment of the full face amount of the portion of its Loans (but not its Commitments) with
respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) to the Administrative Agent
or, at the option of the Administrative Agent, the Administrative Agent’s applicable lending affiliate in an amount that is equal
to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans
(but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) plus
any accrued and unpaid interest on such assigned amount, without further consent or approval of any party hereto and without any payment
by the Administrative Agent or its applicable lending affiliate as the assignee of such Erroneous Payment Deficiency Assignment. The parties
hereto acknowledge and agree that (1) any assignment contemplated in this clause (d) shall be made without any requirement for any payment
or other consideration paid by the applicable assignee or received by the assignor, (2) the provisions of this clause (d) shall govern
in the event of any conflict with the terms and conditions of Section 10.06 and (3) the Administrative Agent may reflect such assignments
in the Register without further consent or action by any other Person.
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(e) Each
party hereto hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient
that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent (1) shall be subrogated to all
the rights of such Payment Recipient with respect to such amount and (2) is authorized to set off, net and apply any and all amounts at
any time owing to such Payment Recipient under any Loan Document, or otherwise payable or distributable by the Administrative Agent to
such Payment Recipient from any source, against any amount due to the Administrative Agent under this Section 9.13 or under the
indemnification provisions of this Agreement, (y) the receipt of an Erroneous Payment by a Payment Recipient shall not for the purpose
of this Agreement be treated as a payment, prepayment, repayment, discharge or other satisfaction of any Obligations, except, in each
case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds
received by the Administrative Agent from, or on behalf of (including the exercise of remedies under any Loan Document), the Borrower
for the purpose of making a payment on the Obligations and (z) to the extent that an Erroneous Payment was in any way or at any time credited
as payment or satisfaction of any of the Obligations, the Obligations or any part thereof that were so credited, and all rights of the
Payment Recipient, as the case may be, shall be reinstated and continue in full force and effect as if such payment or satisfaction had
never been received, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous
Payment that is, comprised of funds received by the Administrative Agent from, or on behalf of (including the exercise of remedies under
any Loan Document), the Borrower for the purpose of making a payment on the Obligations; provided that this Section 9.13
shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date
for), the Obligations of the Borrower relative to the amount (or timing for payment) of the Obligations that would have been payable had
such Erroneous Payment not been made by the Administrative Agent.
(f) Each
party’s obligations under this Section 9.13 shall survive the resignation or replacement of the Administrative Agent or any
transfer of right or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction
or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Nothing
in this Section 9.13 will constitute a waiver or release of any claim of the Administrative Agent hereunder arising from any Payment
Recipient’s receipt of an Erroneous Payment.
ARTICLE
X. MISCELLANEOUS
10.01 Amendments,
Etc. Subject to Section 2.16(e) and Section 3.03(c), no amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative
Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall:
(a) waive
any condition set forth in Section 4.01(a) without the written consent of each Lender;
(b) extend
or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written
consent of such Lender;
(c) postpone
any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;
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(d) reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso
to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent
of each Lender directly affected thereby; provided, however, that only the consent of the Required Lenders shall be necessary
(i) to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit
Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect
of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(e) change
(i) Section 2.13, Section 2.14 or Section 8.03 in a manner
that would alter the pro rata sharing of payments required thereby or
(ii) the order of application of payments or proceeds set forth in Section 8.03, in each case, without
the written consent of each Lender;
(f) change
any provision of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number
or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; or
(g) except
in accordance with Section 9.10, release all or substantially all of the value of the Guaranty without the written consent of each
Lender;
and, provided further, that (i) no amendment, waiver or
consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of
the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect
the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent
under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in
a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right
to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires
the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders),
except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any
waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting
Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
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10.02 Notices;
Effectiveness; Electronic Communication.
(a) Notices
Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided
in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or electronic mail as follows, and all
notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number,
as follows:
(i) if
to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address, telecopier number, electronic mail
address or telephone number specified for such Person on Schedule 10.02; and
(ii) if
to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire
(including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in
effect for the delivery of notices that may contain material non-public information relating to the Borrower).
Notices and other communications sent by hand or overnight courier
service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications
sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices and other communications
delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic
Communications. Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and internet or intranet websites including IntraLinks or another similar electronic system (the “Platform”))
pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender
or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified the Administrative
Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures
approved by it, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative
Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s
receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next
business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received
upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification
that such notice or communication is available and identifying the website address therefor.
(c) The
Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO
NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS,
IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any
of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, the L/C
Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising
out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in
no event shall any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or actual damages).
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(d) Change
of Address, Etc. Each of the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender
may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time
to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number
and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.
Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected
the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable
such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and Applicable Law, including
United States federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public
Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its
securities for purposes of United States federal or state securities laws.
(e) Reliance
by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of
the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed
by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from
all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf
of the Borrower. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative
Agent, and each of the parties hereto hereby consents to such recording.
10.03 No
Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to
the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other
Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection
with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02
for the benefit of all the Lenders and the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative
Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies
that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other
Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of
Section 2.14), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during
the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any
time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders
shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to
the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.14, any
Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required
Lenders.
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10.04 Expenses;
Indemnity; Damage Waiver.
(a) Costs
and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication
of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and
the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the reasonable fees, charges and
disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees and time charges for
attorneys who may be employees of the Administrative Agent, any Lender or the L/C Issuer, in connection with the enforcement or protection
of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification
by the Borrower. The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer,
and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution
or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby
or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of
this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated
by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries,
or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based
on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of
whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from
a claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if the Borrower or such other Loan Party has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent jurisdiction.
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(c) Reimbursement
by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under subsection (a)
or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer
or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent)
or the L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or
any such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.13(d).
(d) Waiver
of Consequential Damages, Etc. To the fullest extent permitted by applicable law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement
or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients
of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic
or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee
as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e) Payments.
All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
(f) Survival.
The agreements in this Section shall survive the resignation of the Administrative Agent, the L/C Issuer and the Swing Line Lender, the
replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other
Obligations.
10.05 Payments
Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or any
Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant
to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to
pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to
the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding
sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
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10.06 Successors
and Assigns.
(a) Successors
and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the Borrower nor any other Loan Party may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and
no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with
the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d)
of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f)
of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Assignments
by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations
in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the
following conditions:
(i) Minimum
Amounts.
(A) in
the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to
it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in
any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall
not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing,
the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining
whether such minimum amount has been met.
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(ii) Proportionate
Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not
apply to rights in respect of the Swing Line Lender’s rights and obligations in respect of Swing Line Loans;
(iii) Required
Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this
Section and, in addition:
(A) the
consent of the Borrower (such consent not to be unreasonably withheld) shall be required unless (1) an Event of Default has occurred
and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice
to the Administrative Agent within five (5) Business Days after having received notice thereof;
(B) the
consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is
to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender;
(C) the
consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases
the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and
(D) the
consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment.
(iv) Assignment
and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent
may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is
not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No
Assignment to Certain Persons. No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates
or Subsidiaries, or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,
would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person.
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(vi) Certain
Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment
shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall
make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate
(which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including
funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested
but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay
and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and
interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations
in Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that
any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance
with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of
this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee
thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto)
but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect
to facts and circumstances occurring prior to the effective date of such assignment. Upon request, the Borrower (at its expense) shall
execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation
in such rights and obligations in accordance with subsection (d) of this Section.
(c) Register.
The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes),
shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the
Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on the Register information regarding the
designation, and revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available for inspection
by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations.
Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each,
a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including
all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line
Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. Each Lender that sells a participation shall, acting for itself and, solely for this purpose
as an agent of the Borrower (and such agency being solely for tax purposes), maintain a register on which it enters the name and address
of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations
under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to
disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's
interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent
that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form
under Section 5f.103-1(c) of the U.S. Treasury Regulations. The entries in such register shall be conclusive absent manifest error, and
each Lender shall treat each Person whose name is recorded in such register pursuant to the terms hereof as the owner of such participation
for all purposes of this Agreement, notwithstanding notice to the contrary.
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Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described
in the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.14 as though it were a Lender.
(e) Limitations
upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04
than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e)
as though it were a Lender.
(f) Certain
Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) Resignation
as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time Wells
Fargo assigns all of its Commitment and Loans pursuant to subsection (b) above, Wells Fargo may, (i) upon 30 days’ notice
to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to the Borrower, resign as Swing Line
Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from among
the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Borrower to
appoint any such successor shall affect the resignation of Wells Fargo as L/C Issuer or Swing Line Lender, as the case may be. If Wells
Fargo resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to
all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant
to Section 2.04(c)). If Wells Fargo resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender
provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including
the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant
to Section 2.05(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as
the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements satisfactory to Wells Fargo to effectively assume the obligations
of Wells Fargo with respect to such Letters of Credit.
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10.07 Treatment
of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, trustees, advisors and representatives with a need to know (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including
any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise
of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document
or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as
those of this Section 10.710.07,
to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under
this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.16(c) or,
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and
its obligations, or (iii)
any actual or prospective provider of credit insurance, credit protection or reinsurance (or its advisors) in respect of any Lender’s
rights or obligations under this Agreement, (g) with the consent of the Borrower, (h) (x) the existence of this Agreement
(but not the terms hereof) and the existence of the revolving credit facility (but not the terms thereof) and (y) certain other limited
generic information regarding the revolving credit facility (but not any other confidential information), may be disclosed to market data
collectors and other similar service providers to the lending industry and, in the case of the Administrative Agent, to service providers
to the Administrative Agent in connection with the administration of the facility or (i) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender,
the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower. For purposes of
this Section, “Information” means all information received from the Borrower or any Subsidiary relating to the Borrower or
any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary, provided that, in the
case of information received from the Borrower or any Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality
of such Information as such Person would accord to its own confidential information.
Each of the Administrative
Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public information concerning
the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in accordance with applicable Law, including United States
federal and state securities Laws.
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Notwithstanding
anything contained herein, nothing in this Agreement shall prohibit or in any way restrict any party hereto from reporting possible violations
of law or regulation to, otherwise communicating directly with, cooperating with or providing information to any governmental or regulatory
body or any self-regulatory organization, including but not limited to bank examiners, the SEC, the U.S. Department of Justice, the Financial
Industry Regulatory Authority, the National Futures Association or the Commodity Futures Trading Commission, or making other disclosures
pursuant to applicable whistleblower laws or regulations
10.08 Right
of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations
(in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the
Borrower or any other Loan Party against any and all of the obligations of the Borrower or such Loan Party now or hereafter existing under
this Agreement or any other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer
shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan
Party may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office
holding such deposit or obligated on such indebtedness; provided, that in the event that any Defaulting Lender shall exercise any
such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application
in accordance with the provisions of Section 2.18 and, pending such payment, shall be segregated by such Defaulting Lender
from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting
Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting
Lender as to which it exercised such right of setoff. The rights of each Lender, the L/C Issuer and their respective Affiliates under
this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after
any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and
application.
10.09 Interest
Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under
the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”).
If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the
extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal
or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
10.10 Counterparts;
Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts),
each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and
the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and
all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01,
this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually
executed counterpart of this Agreement.
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10.11 Survival
of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation
made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may
have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as
any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12 Severability.
If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations 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.
Without limiting the foregoing provisions of this Section 10.12, if and to the extent that the enforceability of any provisions
in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative
Agent, the L/C Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent
not so limited.
10.13 Replacement
of Lenders. If (a) any Lender requests compensation under Section 3.04, or the Borrower is required to pay any Indemnified
Taxes or Other Taxes or any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section
3.01 (and, in each case, such Lender has declined or is unable to designate a different Lending Office in accordance with Section
3.06) or (b) a Lender (a “Non-Consenting Lender”) does not consent to a proposed change, waiver, discharge or termination
with respect to any Loan Document that has been approved by the Required Lenders as provided in Section 10.01 but requires unanimous
consent of all Lenders or all Lenders directly affected thereby (as applicable) or (c) any Lender is a Defaulting Lender, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06), all
of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(i) the
Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 10.06(b)(iv);
(ii) such
Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section
3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of
all other amounts, and, at the option of the Borrower, in respect of such outstanding principal and accrued interest and fees);
114
(iii) in
the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant
to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(iv) such
assignment does not conflict with applicable Laws; and
(v) in
the case of any such assignment resulting from a Non-Consenting Lender’s failure to consent to a proposed change, waiver, discharge
or termination with respect to any Loan Document, the applicable assignee consents to the proposed change, waiver, discharge or termination;
provided that the failure by such Non-Consenting Lender to execute and deliver an Assignment and Assumption shall not impair the
validity of the removal of such Non-Consenting Lender and the mandatory assignment of such Non-Consenting Lender’s Commitments and
outstanding Loans and participations in L/C Obligations pursuant to this Section shall nevertheless be effective without the execution
by such Non-Consenting Lender of an Assignment and Assumption.
A Lender shall
not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to apply.
10.14 Governing
Law; Jurisdiction; Etc.
(a) GOVERNING
LAW. This Agreement and the other Loan Documents 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 any other Loan Document
(except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF).
(b) SUBMISSION
TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY agrees
that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract
or in tort or otherwise, against the Administrative Agent, any Lender, THE l/c Issuer, or any Related Party of the foregoing in any way
relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other than THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF
SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT
THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
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(c) WAIVER
OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.
(d) SERVICE
OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15 Waiver
of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
10.16 No
Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection
with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower and each other Loan Party acknowledges
and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this
Agreement provided by the Administrative Agent and the Arrangers are arm’s-length commercial transactions between the Borrower,
each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent and the Arrangers, on the other hand,
(B) each of the Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate, and (C) the Borrower and each other Loan Party is capable of evaluating, and understands and accepts,
the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative
Agent and, the Arrangers, each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant
parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower, any other Loan Party or any
of their respective Affiliates, or any other Person and (B) neither the Administrative Agent nor the Arrangers has any obligation
to the Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except
those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and the Arrangers
and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower,
the other Loan Parties and their respective Affiliates, and neither the Administrative Agent nor the Arrangers has any obligation to disclose
any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by
law, each of the Borrower and the other Loan Parties hereby waives and releases any claims that it may have against the Administrative
Agent and the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.
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10.17 Electronic
Execution of Assignments and Certain Other Documents. The words “delivery,” “execute,” “execution,”
“signed,” “signature,” and words of like import in any Loan Document or any other document executed in connection
herewith shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic
platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global
and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary neither the Administrative
Agent, the L/C Issuer nor any Lender is under any obligation to agree to accept electronic signatures in any form or in any format unless
expressly agreed to by the Administrative Agent, the L/C Issuer or such Lender pursuant to procedures approved by it and provided further
without limiting the foregoing, upon the request of any party, any electronic signature shall be promptly followed by such manually executed
counterpart.
10.18 USA
PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender
or the Administrative Agent, as applicable, to identify the Borrower in accordance with the Act. The Borrower shall, promptly following
a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or
such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money
laundering rules and regulations, including the Act.
10.19 Acknowledgement
and Consent to Bail-In of Affected Financial Institutions. Solely to the extent any Lender or L/C Issuer that is an Affected Financial
Institution is a party to this Agreement and notwithstanding anything to the contrary in any Loan Document or in any other agreement,
arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender or L/C Issuer that
is an Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the
Write-Down and Conversion Powers of an applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound
by:
(a) the
application of any Write-Down and Conversion Powers by an applicable Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any Lender or L/C Issuer that is an Affected Financial Institution; and
117
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document;
or
(iii) the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any applicable Resolution
Authority.
10.20 Acknowledgement
Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any swap
agreement or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC,
a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal
Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection
Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such
Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC
may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United
States):
(a) In
the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest
and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such
QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special
Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed
by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party
becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply
to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater
extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents
were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood
and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered
Party with respect to a Supported QFC or any QFC Credit Support.
(b) As
used in this Section 10.20, the following terms have the following meanings:
“BHC Act
Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12
U.S.C. 1841(k)) of such party.
118
“Covered
Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 382.2(b).
“Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.
“QFC”
has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D).
[Signature pages omitted]
119
EXHIBIT B
[###]
EXHIBIT C
Consent and Reaffirmation
Each of the undersigned (the
“Guarantors”) hereby acknowledges receipt of a copy of the foregoing Amendment No. 3 to Credit Agreement, dated as
of the date hereof (the “Amendment”), by and among AAR Corp. (the “Borrower”), the financial institutions
party thereto (the “Lenders”) and Wells Fargo Bank, N.A., as administrative agent (in such capacity, the “Administrative
Agent”), amending that certain Credit Agreement, dated as of December 14, 2022 (as amended by Amendment No. 1, dated as of March
1, 2024, Amendment No. 2, dated as of February 27, 2025, and as further amended, restated, supplemented or otherwise modified prior to
or on the date hereof, including by the Amendment, the “Amended Credit Agreement”), by and among the Borrower, the
Administrative Agent and the lenders from time to time party thereto. Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to such terms in the Amended Credit Agreement.
Each of the undersigned Guarantors
hereby (1) ratifies and reaffirms all of its obligations and covenants under the Guaranty, (2) agrees that neither such ratification and
reaffirmation provided for in clause (1), nor the Administrative Agent’s or any Lender’s solicitation of such ratification
and reaffirmation, constitutes a course of dealing giving rise to any obligation or condition requiring a similar or any other ratification
or reaffirmation from such Guarantor with respect to any subsequent modifications to the Amended Credit Agreement or the other Loan Documents,
(3) agrees that none of the terms and conditions of the Amendment shall limit or diminish its payment and performance obligations, contingent
or otherwise, under the Amended Credit Agreement and the Guaranty and (4) agrees that both the Amended Credit Agreement and the Guaranty
remain in full force and effect and each is hereby reaffirmed, ratified and confirmed.
Date: October 23, 2026
[Signature Page Follows]
AAR AIRCRAFT SERVICES, INC.
AAR ALLEN SERVICES, INC.
AAR SUPPLY CHAIN, INC.
AAR GOVERNMENT SERVICES, INC.
AAR INTERNATIONAL, INC.
By:
Name:
Title:
[Signature Page to Consent and Reaffirmation]
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: tm2628131d2_ex99-1.htm · Sequence: 3
Exhibit 99.1
FOR IMMEDIATE RELEASE
October 26, 2026
Contact:
Chris Tillett – Investor Relations
+1-630-227-5830
investors@aarcorp.com
AAR increases
size and extends maturity of revolving credit facility
Wood Dale, Illinois
— AAR CORP. (NYSE: AIR), the leading parts, repair, and software platform in the aviation aftermarket, today announced that
it has amended its revolving credit facility, increasing total commitments to $1.375 billion, an increase of $550 million from the previous
commitment of $825 million, and extending the maturity from December 2027 to October 2031.
The amended
facility continues to be unsecured and facilitates the financing of AAR’s previously announced pending acquisition of a controlling
interest in MRO Holdings.
“The
increased size, additional financial flexibility, and extended maturity of our revolving credit facility provide AAR with the means to
support our growth strategy,” said Dylan Wolin, AAR’s Senior Vice President and Chief Financial Officer. “We appreciate
the increase in commitments from 100% of our prior bank group, as well as the entry of two high-quality banks, and their collective confidence
in AAR.”
Wells Fargo served as Left Lead Arranger and Administrative Agent.
Additional details regarding the amended revolving credit facility can be found in AAR’s Current Report on Form 8-K filed with
the U.S. Securities and Exchange Commission.
For more information
on AAR, visit aarcorp.com.
About AAR
AAR is a leading global aerospace and
defense aftermarket solutions company with operations in over 20 countries. Headquartered in the Chicago area, AAR supports commercial
and government customers through three primary operating segments: Parts Supply; Repair, Engineering, and Software; and Government Solutions.
Additional information can be found at aarcorp.com.
This
press release contains forward-looking statements as that term is defined in the Private Securities Litigation Reform Act of 1995
and reflect management’s expectations about future conditions, including financial flexibility and support of growth strategy.
These forward-looking statements are based on beliefs of management, as well as assumptions and estimates based on information currently
available to us and are subject to certain risks and uncertainties that could cause actual results to differ materially from historical
results or those anticipated. For a discussion of these and other risks and uncertainties, refer to “Risk Factors” in
our most recent Annual Report on Form 10-K, our recent Quarterly Report on Form 10-Q, and other subsequent filings with
the U.S. Securities and Exchange Commission. Should one or more of these risks or uncertainties materialize adversely, or should
underlying assumptions or estimates prove incorrect, actual results may vary materially from those described and the anticipated
benefits may not be realized. These events and uncertainties are difficult or impossible to predict accurately, and many are beyond
our control. We assume no obligation to update any forward-looking statements to reflect events or circumstances after the date of
such statements, except as required by law.
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v3.26.3
Cover
Oct. 23, 2026
Document Information [Line Items]
Document Type
8-K
Amendment Flag
false
Document Period End Date
Oct. 23, 2026
Entity File Number
1-6263
Entity Registrant Name
AAR
CORP.
Entity Central Index Key
0000001750
Entity Tax Identification Number
36-2334820
Entity Incorporation, State or Country Code
DE
Entity Address, Address Line One
One AAR Place
Entity Address, Address Line Two
1100 N. Wood Dale Road
Entity Address, City or Town
Wood Dale
Entity Address, State or Province
IL
Entity Address, Postal Zip Code
60191
City Area Code
630
Local Phone Number
227-2000
Written Communications
false
Soliciting Material
false
Pre-commencement Tender Offer
false
Pre-commencement Issuer Tender Offer
false
Entity Emerging Growth Company
false
Common Stock [Member] | NYSE CHICAGO, INC. [Member]
Document Information [Line Items]
Title of 12(b) Security
Common Stock, $1.00 par value
Trading Symbol
AIR
Security Exchange Name
NYSE
Common Stock [Member] | NEW YORK STOCK EXCHANGE, INC. [Member]
Document Information [Line Items]
Title of 12(b) Security
Common
Stock, $1.00 par value
Trading Symbol
AIR
Security Exchange Name
NYSE
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