Form 8-K
8-K — CELESTICA INC
Accession: 0001104659-26-049818
Filed: 2026-04-28
Period: 2026-04-27
CIK: 0001030894
SIC: 3672 (PRINTED CIRCUIT BOARDS)
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: Financial Statements and Exhibits
Documents
8-K — tm2612871d1_8k.htm (Primary)
EX-10.1 — EXHIBIT 10.1 (tm2612871d1_ex10-1.htm)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
April 27, 2026
Celestica Inc.
(Exact name of registrant as specified in its charter)
Ontario, Canada
001-14832
98-0185558
(State or other jurisdiction of incorporation)
(Commission File Number)
(IRS Employer Identification No.)
5140 Yonge Street, Suite 1900
Toronto, Ontario, Canada
M2N 6L7
(Address of principal executive offices)
(Zip Code)
(416) 448-2211
(Registrant’s telephone number, including
area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K is intended to
simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Name of each exchange on which registered
Common Shares without par value
CLS
New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On April 27, 2026, Celestica Inc. (the “Company”)
amended its existing senior credit agreement (the “April 2026 Amendment”) with Bank of America, N.A., as Administrative Agent,
and the lenders party thereto to: (1) increase the commitments under the Company’s revolving credit facility (“Revolver”)
from $750.0 million to $1,750.0 million; (2) refinance the Company’s existing term A loan facility (“Term A Loan,” $228.1
million outstanding borrowings at March 31, 2026) into a new $250.0 million term A loan facility (“New Term A Loan”); and
(3) extend the maturity of the Revolver and the New Term A Loan from June 2029 to April 2031. The New Term A Loan was fully drawn at closing
of the April 2026 Amendment. The proceeds of the New Term A Loan were used to repay all amounts outstanding under the refinanced Term
A Loan and certain fees and expenses related to the April 2026 Amendment, with any remaining proceeds to be used for general corporate
purposes. Amounts drawn under the Revolver are permitted to be used for general corporate purposes.
Under the credit agreement as amended by the April
2026 Amendment (the “Amended Credit Facility”), outstanding borrowings under the Revolver bear interest at varying rates (as
specified therein), plus a margin ranging from 1.00% — 1.75%, or from 0.05% — 0.75%, in each case depending on the currency
of the borrowings, the rate the Company selects, and the corporate rating of the Company (as defined in the Amended Credit Facility).
The current margin applicable to post-closing U.S. dollar Revolver borrowings bearing interest based on the term Secured Overnight Financing
Rate (“Term SOFR”) is 1.50%. Commitment fees on undrawn funds available under the Revolver range between 0.100% to 0.275%,
depending on the corporate rating of the Company (as defined in the Amended Credit Facility). The New Term A Loan bears interest at varying
rates (as specified in the Amended Credit Facility), plus a margin ranging from 1.00% — 1.75%, or from 0.05% — 0.75%, in each
case depending on the rate the Company selects and the corporate rating of the Company (as defined in the Amended Credit Facility). The
current margin applicable to the New Term A Loan bearing interest based on Term SOFR is 1.50%.
The April 2026 Amendment does not materially modify
the circumstances under which obligations under the Amended Credit Facility may be accelerated. As amended, amounts outstanding may be
accelerated upon the occurrence of customary events of default, including, among others, payment default, covenant breach and insolvency.
The April 2026 Amendment does not introduce any new provisions under the Amended Credit Facility that would permit lenders to require
increased payments or additional collateral.
The Amended Credit Facility was provided by a
syndicate of lenders, with Bank of America, N.A. acting as Administrative Agent. BofA Securities, Inc. acted as Left Lead Arranger and
Left Lead Bookrunner. Canadian Imperial Bank of Commerce and CIBC World Market Corp., Crédit Agricole Corporate and Investment
Bank (Canada Branch) and TD Securities acted as Joint Lead Arrangers, Joint Bookrunners and Co-Syndication Agents. BNP Paribas Securities
Corp. and Royal Bank of Canada acted as Co-Documentation Agents.
The foregoing description of the April 2026
Amendment and the Amended Credit Facility does not purport to be complete and is qualified in its entirety by reference to the full
text of the April 2026 Amendment, a copy of which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of
a Registrant.
The disclosures contained in “Item 1.01.
Entry into a Material Definitive Agreement” of this Current Report on Form 8-K are incorporated into this Item 2.03 by reference.
Item 9.01. Financial Statements and Exhibits.
Exhibit No.
Description
10.1
Second Amendment to Amended and Restated Credit Agreement, dated as of April 27, 2026, made by and among Celestica Inc., Celestica International LP and Celestica (USA) Inc., as Borrowers, certain subsidiaries of Celestica Inc. party thereto, as Guarantors, each Lender party thereto, and Bank of America, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
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.
Celestica Inc.
Date: April 28, 2026
By:
/s/ Douglas Parker
Name: Douglas Parker
Title: Chief Legal Officer and Corporate Secretary
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2612871d1_ex10-1.htm · Sequence: 2
Exhibit 10.1
Execution Version
SECOND AMENDMENT
Dated as of April 27, 2026
to
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 20, 2024
among
CELESTICA INC.,
CELESTICA INTERNATIONAL LP,
CELESTICA (USA) INC. and
CERTAIN SUBSIDIARIES OF CELESTICA INC. IDENTIFIED THEREIN,
as the Borrowers,
CELESTICA INC. and
CERTAIN SUBSIDIARIES OF CELESTICA INC. IDENTIFIED
THEREIN,
as the Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and
an L/C Issuer,
and
THE OTHER LENDERS PARTY THERETO
BNP PARIBAS SECURITIES CORP.
and
ROYAL BANK OF CANADA,
as Co-Documentation Agents
CANADIAN IMPERIAL BANK OF COMMERCE and CIBC WORLD
MARKETS CORP.,
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK (CANADA BRANCH),
and
TD SECURITIES,
as Co-Syndication Agents
BOFA SECURITIES, INC.,
CANADIAN IMPERIAL BANK OF COMMERCE and CIBC WORLD MARKETS CORP.,
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK (CANADA BRANCH),
and
TD SECURITIES,
as Joint Lead Arrangers and Joint Bookrunners
SECOND AMENDMENT
This SECOND AMENDMENT (this
“Amendment”), dated as of April 27, 2026 (the “Second Amendment Effective Date”), is by and
between Celestica Inc., an Ontario corporation (the “Company”), Celestica International LP, an Ontario limited partnership
(together with the Company, the “Canadian Borrowers”), Celestica (USA) Inc., a Delaware corporation (the “Initial
U.S. Borrower” and, together with the Canadian Borrowers, the “Borrowers” and each a, “Borrower”),
the Guarantors party hereto, the Lenders party hereto and Bank of America, N.A., in its capacity as Administrative Agent, the Swing Line
Lender and an L/C Issuer.
W I T N E S S E T H
WHEREAS, revolving credit
and term loan facilities have been extended to the Borrowers (together with the additional Borrowers party thereto from time to time)
pursuant to that certain Amended and Restated Credit Agreement, dated as of June 20, 2024 (as amended, modified, increased, extended,
restated, renewed, replaced and/or supplemented from time to time prior to the date hereof, the “Existing Credit Agreement”),
by and among the Borrowers (including any such additional Borrowers), the Guarantors identified therein, the Lenders identified therein
and the Administrative Agent;
WHEREAS, the Borrowers have
requested certain amendments to the Existing Credit Agreement; and
WHEREAS, Lenders which constitute
(a) all of the Revolving Lenders, (b) all of the Lenders that hold Term A Loan Commitments on the Second Amendment Effective
Date (the Lenders referenced in clauses (a) and (b), collectively, the “Pro Rata Facilities Lenders”),
(c) the Swing Line Lender, (d) each L/C Issuer and (e) the Required Lenders (together with the Pro Rata Facilities Lenders,
the Swing Line Lender and each L/C Issuer, the “Requisite Lenders”) have agreed to the requested amendments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration
of the premises and the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Defined
Terms. Capitalized terms used herein but not otherwise defined herein shall, unless otherwise provided herein, have the meanings provided
to such terms in the Amended Credit Agreement (as defined below).
2. Amendments
to the Existing Credit Agreement and Collateral Documents.
2.1. Existing
Credit Agreement. The Existing Credit Agreement (but not the Schedules and/or the Exhibits thereto) is amended in its entirety
to read as attached hereto as Annex A (as so amended, the “Amended Credit Agreement”).
2.2. Schedules
to the Existing Credit Agreement. Schedule 2.01 (Commitments and Applicable Percentages) with respect to the Revolving
Commitments, Term A Loan Commitments and Letter of Credit Commitments only, Schedule 5.13 (Subsidiaries), Schedule 5.17
(Identification Numbers for Canadian Borrowers and Designated Borrowers that are Non-U.S. Subsidiaries), Schedule 5.21
(Labor Matters), Schedule 7.01 (Existing Liens), Schedule 7.02 (Permitted Investments), Schedule 7.03
(Existing Indebtedness), Schedule 7.04 (Permitted Dissolutions), Schedule 7.05 (Permitted Dispositions),
Schedule 7.08 (Existing Transactions with Affiliates), Schedule 7.09 (Existing Burdensome Agreements), Schedule 10.02
(Administrative Agent’s Office; Certain Addresses for Notices) and Schedule 10.06 (Disqualified Institutions) to
the Existing Credit Agreement are each amended in its entirety with the applicable Schedule attached hereto as Annex B.
2
2.3. Exhibits
to the Existing Credit Agreement. Exhibit E (Form of Compliance Certificate) to the Existing Credit Agreement is
amended in its entirety to read as set forth on Annex C attached hereto.
2.4. Collateral
Documents Generally. Notwithstanding anything to the contrary
contained in any Collateral Document, no Deposit Account or Securities Account for which the balance therein does not exceed $1,500,000
shall be required to be subject to (nor shall any Loan Party be required to use commercially reasonable efforts to cause such Deposit
Account or Securities Account to be subject to) a Qualifying Control Agreement (as defined in the U.S. Security Agreements and the Canadian
Security Agreement) (nor to be subject to any similar documents or notices required under any other applicable Law for each appropriate
jurisdiction as necessary).
3. Conditions
Precedent. This Amendment shall become effective as of the Second Amendment Effective Date upon satisfaction of each of the following
conditions precedent:
3.1. Amendment.
Receipt by the Administrative Agent of executed counterparts of this Amendment properly executed by a Responsible Officer of each Loan
Party, each Requisite Lender and the Administrative Agent.
3.2. Loan
Notice. Receipt by the Administrative Agent of a Request for Credit Extension for the Loans to be made on the Second Amendment Effective
Date.
3.3. Notes.
Receipt by the Administrative Agent, as to each Borrower, of a Note executed by such Borrower in favor of each Pro Rata Facilities Lender
requesting a Note.
3.4. Opinions
of Counsel. Subject to Section 4 hereof, receipt by the Administrative Agent of a favorable opinion of each of (a) Arnold &
Porter Kaye Scholer LLP, U.S. counsel to the Loan Parties, (b) Blake, Cassels & Graydon LLP, Canadian counsel to the Loan
Parties, and (c) local counsel to the Loan Parties (or, where consistent with local practice, counsel to the Administrative Agent)
in each other jurisdiction for which the Administrative Agent has requested a legal opinion, in each case addressed to the Administrative
Agent and each Lender, and dated as of the Second Amendment Effective Date, as to such matters concerning the Loan Parties and this Amendment
as the Administrative Agent may reasonably request.
3.5. Organization
Documents and Resolutions. Receipt by the Administrative Agent of (a) an officer’s certificate of each Loan Party, attaching
and certifying copies of such Loan Party’s Organization Documents (or certifying that there have been no changes to such Organization
Documents since their prior delivery to the Administrative Agent) and any applicable statutory registers and (b) such certificates
of resolutions or other action, incumbency certificates, certificates of good standing and/or other certificates of a Responsible Officer
of each Loan Party as the Administrative Agent may reasonably require (in each case, solely to the extent such documents are applicable
in the relevant jurisdiction) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as
a Responsible Officer in connection with this Amendment.
3
3.6. Collateral
Documentation. Subject to Section 4 hereof, receipt by the Administrative Agent of the following, each in form and
substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) searches
of filings made under the UCC, the PPSA, the Bank Act (Canada) or other applicable Law, in each case in the jurisdiction of formation
of each Loan Party and each other jurisdiction reasonably deemed appropriate by the Administrative Agent;
(ii) such
UCC and PPSA financing statements or similar documents required under any other applicable Law in the name of each Loan Party for each
appropriate jurisdiction as is necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s
security interest in the Collateral;
(iii) to
the extent not previously provided, all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent
pursuant to the Security Agreements, together with duly executed in blank, undated stock powers attached thereto (unless, with respect
to the pledged Equity Interests of any Non-U.S. Subsidiary, such stock powers are deemed unnecessary by the Administrative Agent in its
reasonable discretion under the law of the jurisdiction of organization of such Person);
(iv) searches
of ownership of, and Liens on, United States and Canadian intellectual property registrations and applications of each Loan Party in the
appropriate governmental offices;
(v) to
the extent not previously provided, duly executed notices of grant of security interest in the form required by the Security Agreements
as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest
in the United States and Canadian intellectual property registrations and applications of the Loan Parties;
3.7. Officer’s
Closing Certificate. Receipt by the Administrative Agent of a
certificate signed by a Responsible Officer of the Company certifying that:
(i) after
giving effect to this Amendment and the transactions contemplated herein on the Second Amendment Effective Date, the representations and
warranties of the Loan Parties contained in Article V of the Amended Credit Agreement and in each other Loan Document, or
which are contained in any document furnished at any time under or in connection therewith, are true and correct in all material respects
(or, in the case of any such representations and warranties qualified by materiality or Material Adverse Effect, in all respects as drafted)
as of the Second Amendment Effective Date with the same effect as if made on and as of the Second Amendment Effective Date, except to
the extent such representations and warranties specifically refer to an earlier date, in which case, such representations and warranties
were true and correct in all material respects (or, in the case of any such representations and warranties qualified by materiality or
Material Adverse Effect, in all respects as drafted) as of such earlier date; and
(ii) after
giving effect to this Amendment and the transactions contemplated herein on the Second Amendment Effective Date, no Default or Event of
Default has occurred and is continuing.
4
3.8. Solvency
Certificate. Receipt by the Administrative Agent of a certificate signed by the chief financial officer of the Company certifying
that the Company and its Subsidiaries are Solvent on a consolidated basis after giving effect to this Amendment and the transactions contemplated
herein on the Second Amendment Effective Date.
3.9. Anti-Money
Laundering. The Administrative Agent and the Lenders shall have received all documentation and other information with respect to each
Loan Party requested in writing at least five (5) Business Days prior to the Second Amendment Effective Date by the Administrative
Agent that any Lender determines is required by regulatory authorities under applicable Law, including without limitation the PATRIOT
Act, the Canadian AML Acts and applicable U.S. and Canadian law regarding anti-money laundering, anti-terrorist financing, government
sanction and “know your customer” matters.
3.10. Beneficial
Ownership. At least three (3) Business Days prior to the Second Amendment Effective Date, any Borrower that qualifies as a “legal
entity customer” under the Beneficial Ownership Regulation shall have delivered to each Lender that so requests a Beneficial Ownership
Certification in relation to such Borrower.
3.11. Payment
of Accrued Interest and Fees under the Existing Credit Agreement. All accrued and unpaid interest and fees under the Existing Credit
Agreement with respect to the Revolving Commitments, Revolving Loans and the Term A Loan shall have been paid.
3.12. Fees.
Receipt by the Administrative Agent, each arranger for the transactions contemplated by this Amendment, and each Lender party hereto of
any fees required to be paid on or before the date of this Amendment.
3.13. Attorney
Costs. The Loan Parties shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative
Agent to the extent invoiced at least three (3) Business Days prior to or on the date hereof.
Without limiting the generality
of the provisions of Section 9.03 of the Existing Credit Agreement, for purposes of determining compliance with the conditions specified
in this Section 3, each Lender that has signed this Amendment 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 Second Amendment Effective
Date specifying its objection thereto.
4. Post-Closing
Obligations. Within the time period specified in Schedule 1 hereto (or such later date to be determined by the Administrative
Agent in its reasonable discretion), satisfy the other requirements set forth in Schedule 1 hereto. To the extent any Loan Document
requires delivery of any document or completion of an action, in each case that is described in Schedule 1 hereto, prior to the
date specified in Schedule 1 hereto, such delivery may be made or such action may be taken at any time prior to that specified
in Schedule 1 hereto. To the extent any representation and warranty would not be true or any provision of any covenant would be
breached because the actions required by this Section 4 are not taken on the Second Amendment Effective Date, the respective
representation and warranty shall be required to be true and correct with respect to such action, or the respective covenant complied
with, only at the time the respective action is taken (or was required to be taken) in accordance with this Section 4.
5
5. Conditional
Amendments to the Amended Credit Agreement. Effective on the first date after the Second Amendment Effective Date on which all
of the conditions precedent set forth below in this Section 5 have been satisfied (such date, the “Release
Date”), the Amended Credit Agreement (but not the Schedules and/or the Exhibits thereto) shall be automatically amended in
its entirety to read as attached hereto as Annex D (as so amended, the “Conditional Amended Credit
Agreement”):
5.1. Investment
Grade Ratings. The Company shall have provided satisfactory evidence to the Administrative Agent that the Company has obtained
at least two (2) of the following three (3) Corporate Ratings: (a) a public corporate family rating of the Company of
Baa3 or higher from Moody’s, (b) a public corporate credit rating of the Company of BBB- or higher from S&P and/or
(c) a public corporate credit rating of the Company of BBB- or higher from Fitch.
5.2. Repayment
in Full of Term B Loan and all Incremental Tranche B Term Loans. The Company shall have, or shall have caused, the repayment in full
of all outstanding principal of, accrued interest on, and prepayment premiums and all other amounts in respect of the Term B Loan and
any Incremental Tranche B Term Loan.
5.3. Officer’s
Certificate. The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Company certifying
that, as of the Release Date after giving effect to this Section 5, no Default or Event of Default exists under the Conditional
Amended Credit Agreement.
Effective as of the Release Date, the
Administrative Agent, on behalf of itself and the Pro Rata Facilities Lenders, shall (x) terminate and release all Liens of the Administrative
Agent (for the benefit of itself and the Secured Parties) on the Collateral (other than, for the avoidance of doubt, on Cash Collateral
pursuant to Section 2.17 of the Amended Credit Agreement) created by each Security Agreement and any other Collateral Document and
(y) terminate each Security Agreement and each other Collateral Document, in each case, automatically and without the need for any
further action, and all rights to the Collateral shall revert to the Loan Parties (the “Collateral Release”). The Administrative
Agent will, at the request and sole expense of the Company following any such Collateral Release, promptly (i) execute and deliver
to the Company (or such Person as the Company may designate) any and all release or termination documents and take such other action,
in each case, as the Company may reasonably request to evidence the foregoing termination and release of such Liens of the Administrative
Agent on behalf of itself and the Secured Parties and termination of the Collateral Documents and (ii) prepare and file UCC and PPSA
termination statements (or similar documents required under any other applicable Law for each appropriate jurisdiction as necessary) and
intellectual property notice releases in the United States and Canada terminating such Liens.
6. Consent
to Release of Malaysian Guarantors. Each Lender party hereto that was a Lender party to the Existing Credit Agreement prior to the
effectiveness of this Amendment (each, an “Existing Lender”) hereby acknowledges it has reviewed that certain letter
agreement, dated as of April 24, 2026 (the “Malaysian Guarantor Release”), by and among the Company, the Malaysian
Guarantors (as defined therein), the Administrative Agent and the other parties thereto, regarding the release of the Malaysian Guarantors
and the Released Malaysian Collateral (as defined therein). The Administrative Agent and the Existing Lenders, constituting Required Lenders
under the Existing Credit Agreement, hereby (i) consent to the release of the Malaysian Guarantors and the Released Collateral on
the terms and subject to the conditions set forth in the Malaysian Guarantor Release and (ii) agree that, notwithstanding anything
to the contrary herein or in any other Loan Document, the consent set forth in this Section 6 shall be effective as of April 24,
2026. The Existing Lenders, constituting Required Lenders under the Existing Credit Agreement, hereby authorize and direct the Administrative
Agent to sign the Malaysian Guarantor Release.
6
7. Waiver
of Break Funding Compensation; Reallocation of Revolving Facility and Term A Loan.
7.1. Waiver
of Break Funding. Each Lender party hereto waives the application of Section 3.05 of the Existing Credit Agreement to any prepayment
(or deemed prepayment of the Loans of such Lender) that occurs in connection with the transactions contemplated herein. This waiver is
a one-time waiver and shall not be construed to be a waiver of, or in any way obligate any Lender to waive, compensation otherwise payable
to such Lender under Section 3.05 of the Existing Credit Agreement or Section 3.05 of the Amended Credit Agreement, in each
case, in any other circumstance.
7.2. Reallocation
of Revolving Facility and Term A Loan. Each of the Administrative Agent, the Swing Line Lender, each L/C Issuer, each Lender
party hereto and the Company hereby acknowledges and agrees that (a) its Revolving Commitment (if any) is set forth opposite
its name on Schedule 2.01 of Annex B attached hereto under the caption “Revolving Commitment”, and (b) its
Term A Loan Commitment (if any) is set forth opposite its name on Schedule 2.01 of Annex B attached hereto under the caption
“Term A Loan Commitment”. On the Second Amendment Effective Date, upon giving effect to this Amendment, (i) the
Company, each Lender party hereto, and the Administrative Agent shall, subject to the terms and conditions of this Amendment and the
Amended Credit Agreement, effect such prepayments and borrowings as are necessary to effectuate the modifications contemplated in
this Amendment, in each case such that, after giving effect thereto, each Lender party hereto will hold its respective
(1) Applicable Percentage of the Outstanding Amount of all Revolving Loans (it being understood that some or all of the
Revolving Loans outstanding under the Existing Credit Agreement immediately prior to the effectiveness of this Amendment may remain
outstanding under the Amended Credit Agreement upon the effectiveness of this Amendment), and (2) Applicable Percentage of the
Outstanding Amount of all Term A Loans (it being understood that some or all of the Term A Loans outstanding under the Existing
Credit Agreement immediately prior to the effectiveness of this Amendment may remain outstanding under the Amended Credit Agreement
upon the effectiveness of this Amendment), and (ii) the risk participations of the Revolving Lenders in any Letter of Credit or
Swing Line Loans, in each case outstanding on the Second Amendment Effective Date, shall be automatically reallocated in accordance
with such Revolving Lender’s Applicable Percentage of the Aggregate Revolving Commitments.
8. New
Lenders. Each Lender that signs this Amendment as a Lender and that was not a Lender party to the Existing Credit Agreement prior
to the effectiveness of this Amendment (each a “New Lender”) agrees that from and after the Second Amendment Effective
Date, it shall be bound by the provisions of the Amended Credit Agreement as a Lender thereunder and shall have the obligations of a Lender
thereunder. Each of the Administrative Agent and each Credit Party agrees that, as of the Second Amendment Effective Date, each New Lender
shall (a) be a party to the Amended Credit Agreement (and, as applicable, the other Loan Documents), (b) be a Lender for all
purposes of the Amended Credit Agreement and the other Loan Documents, and (c) have the rights and obligations of a Lender under
the Amended Credit Agreement and the other Loan Documents. The address of each New Lender for purposes of all notices and other communications
is as set forth on the Administrative Questionnaire delivered by such New Lender to the Administrative Agent.
9. Reaffirmation.
The Loan Parties hereby acknowledge and reaffirm that: (a) they are bound by all of the terms of the Loan Documents to which
they are party; (b) this Amendment does not operate to reduce or discharge, or constitute a novation of, their obligations
under the Loan Documents; and (c) they are responsible for the observance and full performance of all Obligations, including,
without limitation, the repayment of the Loans and reimbursement of any drawings on any Letter of Credit. Furthermore, the Loan
Parties acknowledge and confirm that the Liens and security interests referred to in the Amended Credit Agreement are created and
granted in favor of the Administrative Agent pursuant to the Collateral Documents and/or other Loan Documents and are valid and
subsisting, and agree that this Amendment is not intended to, and does not, adversely affect or impair, or constitute a novation of,
such liens and security interests in any manner.
7
10. Miscellaneous.
10.1. The
Amended Credit Agreement and the obligations of the Loan Parties thereunder and under the other Loan Documents are hereby ratified and
confirmed and shall remain in full force and effect according to their terms. This Amendment shall not be deemed or construed to be a
satisfaction, reinstatement, novation or release of any Loan Document or a waiver by the Administrative Agent, any Lender or any L/C Issuer
of any rights and remedies under the Loan Documents, at law or in equity.
10.2. Each
of the Loan Parties hereby represents and warrants to the Administrative Agent, the Lenders and the L/C Issuers as follows:
(a) The
execution, delivery and performance by such Loan Party of this Amendment (i) has been duly authorized by all necessary corporate
or other organizational action and (ii) does not and will not (A) contravene the terms of such Person’s Organization Documents,
(B) conflict with or result in any breach or contravention of, or the creation of any Lien (other than Liens under the Loan Documents)
under, or require any payment to be made under (x) any material Contractual Obligation to which such Person is a party or affecting
such Person or the properties of such Person or any Restricted Subsidiary, or (y) any material order, injunction, writ or decree
of any Governmental Authority or any arbitral award to which such Person or its property is subject, or (C) violate any material
Law.
(b) This
Amendment has been duly executed and delivered by such Loan Party and constitutes a legal, valid and binding obligation of such Loan Party,
enforceable against such Loan Party in accordance with its terms, except to the extent that the enforceability hereof may be limited by
applicable Debtor Relief Laws or by general principles of equity (regardless of whether enforceability is considered in a proceeding in
equity or at law).
(c) No
material approval, consent, exemption, authorization, or other material action by, or material notice to, or material filing with, any
Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement
against, such Loan Party of this Amendment other than those that have already been obtained and are in full force and effect.
10.3. This
Amendment shall constitute a Loan Document for all purposes. No
amendment or waiver of Section 5 of this Amendment (or any provision thereof), and no consent to any departure by the Company
or any other Loan Party therefrom, shall be effective unless in writing (a) signed by (i) each Person whose approval is required
for such amendment, waiver or consent pursuant to Section 10.01 of the Amended Credit Agreement and (ii) the Required Pro Rata
Facilities Lenders and (b) acknowledged by the Administrative Agent.
10.4. This
Amendment 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 Amendment constitutes the
entire contract among the parties relating to the subject matter hereof and supersedes any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature
page of this Amendment by facsimile or other electronic imaging means (e.g., “pdf” or “tif”) shall be
effective as delivery of a manually executed counterpart of this Amendment.
8
10.5. The
provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted under the Amended Credit Agreement.
10.6. At
the request of the Administrative Agent, this Amendment shall be raised to public by means of the execution of a Spanish Public Document
by any Guarantor incorporated in Spain and the Administrative Agent, for the purposes contemplated in article 517 et seq. of the Spanish
Civil Procedure Act and other related provisions; provided that such request may only be made prior to, and such execution shall
only take place on, the date on which the parties appear before a Spanish notary to complete the Spanish post-closing actions contemplated
in Schedule 1 hereto, and the Administrative Agent’s right to make such request shall not survive thereafter.
10.7. THE TERMS OF SECTIONS
10.14 (GOVERNING LAW; JURISDICTION; ETC.) AND 10.16 (WAIVER OF JURY TRIAL) OF THE EXISTING CREDIT AGREEMENT ARE INCORPORATED HEREIN BY
REFERENCE, MUTATIS MUTANDIS.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of
the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as a deed of the date first above written.
BORROWERS:
CELESTICA INC.,
an Ontario corporation
By:
/s/ Mandeep Chawla
Name:
Mandeep Chawla
Title:
Chief Financial Officer and Executive
Vice-President
CELESTICA INTERNATIONAL LP,
an Ontario limited partnership, by
its general partner,
By:
CELESTICA INTERNATIONAL GP INC.,
an Ontario corporation
By:
/s/ Mandeep Chawla
Name:
Mandeep Chawla
Title:
President and Chief Financial Officer
CELESTICA (USA) INC.,
a Delaware corporation
By:
/s/ Mandeep Chawla
Name:
Mandeep Chawla
Title:
President
[Signature Pages Continue]
[Signature Page to Second Amendment]
U.S. GUARANTORS:
CELESTICA (USA) INC.,
a Delaware corporation
By:
/s/
Mandeep Chawla
Name:
Mandeep Chawla
Title:
President
CELESTICA LLC,
a Delaware limited liability company
By:
/s/
Mandeep Chawla
Name:
Mandeep Chawla
Title:
Executive Vice President
CELESTICA OREGON LLC,
a Delaware limited liability company
By:
/s/
Mandeep Chawla
Name:
Mandeep Chawla
Title:
Executive Vice President
CELESTICA PRECISION MACHINING LTD.,
a California corporation
By:
/s/
Mandeep Chawla
Name:
Mandeep Chawla
Title:
President and Chief Financial Officer
ABELCONN HOLDINGS, LLC,
a Delaware limited liability company
By:
/s/
Matt McKinley
Name:
Matt McKinley
Title:
President and Chief Executive Officer
[Signature Pages Continue]
[Signature Page to Second Amendment]
ABELCONN LLC,
a Delaware limited liability company
By:
/s/
Matt McKinley
Name:
Matt McKinley
Title:
President and Chief Executive Officer
ATRENNE COMPUTING SOLUTIONS, LLC,
a Delaware limited liability company
By:
/s/
Chris A. Boutilier
Name:
Chris A. Boutilier
Title:
President and Chief Executive Officer
ATRENNE INTEGRATED SOLUTIONS, INC.,
a Delaware corporation
By:
/s/
Chris A. Boutilier
Name:
Chris A. Boutilier
Title:
President and Secretary
EXT HOLDING, LLC,
a Delaware limited liability company
By:
/s/
Chris A. Boutilier
Name:
Chris A. Boutilier
Title:
President and Chief Executive Officer
SUN SURFACE TECHNOLOGY,
a California corporation
By:
/s/
Kevin Walsh
Name:
Kevin Walsh
Title:
President and Secretary
[Signature Pages Continue]
[Signature Page to Second Amendment]
EXTRUSION TECHNOLOGY PRC HOLDINGS,
LLC,
a Delaware limited liability company
By:
/s/
Chris A. Boutilier
Name:
Chris A. Boutilier
Title:
President and Chief Executive Officer
[Signature Pages Continue]
[Signature Page to Second Amendment]
NON-U.S. GUARANTORS:
CELESTICA INC.,
an Ontario corporation
By:
/s/
Mandeep Chawla
Name:
Mandeep Chawla
Title:
Chief Financial Officer and Executive
Vice-President
CELESTICA INTERNATIONAL LP,
an Ontario limited partnership, by
its general partner
By:
CELESTICA INTERNATIONAL GP INC.,
an Ontario corporation
By:
/s/
Mandeep Chawla
Name:
Mandeep Chawla
Title:
President and Chief Financial Officer
1282088 ONTARIO INC.,
an Ontario corporation
By:
/s/
Mandeep Chawla
Name:
Mandeep Chawla
Title:
Chief Financial Officer and Corporate
Treasurer
1287347 ONTARIO INC.,
an Ontario corporation
By:
/s/
Mandeep Chawla
Name:
Mandeep Chawla
Title:
Chief Financial Officer and Corporate
Treasurer
2480333 ONTARIO INC.,
an Ontario corporation
By:
/s/
Mandeep Chawla
Name:
Mandeep Chawla
Title:
Chief Financial Officer and Corporate
Treasurer
[Signature Pages Continue]
[Signature Page to Second Amendment]
3265598 NOVA SCOTIA COMPANY,
a Nova Scotia unlimited company
By:
/s/
Mandeep Chawla
Name:
Mandeep Chawla
Title:
Chief Financial Officer and Corporate
Treasurer
CELESTICA INTERNATIONAL GP INC.,
an Ontario corporation
By:
/s/
Mandeep Chawla
Name:
Mandeep Chawla
Title:
President and Chief Financial Officer
CELESTICA INTERNATIONAL INC.,
an Ontario corporation
By:
/s/
Mandeep Chawla
Name:
Mandeep Chawla
Title:
Chief Financial Officer and Executive
Vice President, Finance
1204362 ONTARIO INC.,
an Ontario corporation
By:
/s/
Mandeep Chawla
Name:
Mandeep Chawla
Title:
Chief Financial Officer and Corporate
Treasurer
2863862 ONTARIO INC.,
an Ontario corporation
By:
/s/
Mandeep Chawla
Name:
Mandeep Chawla
Title:
Chief Executive Officer
[Signature Pages Continue]
[Signature Page to Second Amendment]
CELESTICA CAYMAN HOLDINGS 1 LIMITED,
a Cayman Islands exempted company
By:
/s/
Priyanka Mathur
Name:
Priyanka Mathur
Title:
Director
CELESTICA CAYMAN HOLDINGS 2 LIMITED,
a Cayman Islands exempted company
By:
/s/
Priyanka Mathur
Name:
Priyanka Mathur
Title:
Director
CELESTICA CAYMAN HOLDINGS 9 LIMITED,
a Cayman Islands exempted company
By:
/s/
Priyanka Mathur
Name:
Priyanka Mathur
Title:
Director
CELESTICA LIMITED,
a company incorporated in England
and Wales
By:
/s/ Kevin Walsh
Name:
Kevin Walsh
Title:
Director
[Signature Pages Continue]
[Signature Page to Second Amendment]
CELESTICA GLOBAL LIMITED,
a company incorporated in Hong Kong
By:
/s/
KANG Seung Kwon
Name:
KANG Seung Kwon
Title:
Director
CELESTICA HONG KONG HOLDINGS 1 LIMITED,
a company incorporated in Hong Kong
By:
/s/
KANG Seung Kwon
Name:
KANG Seung Kwon
Title:
Director
CELESTICA HONG KONG LIMITED,
a company incorporated in Hong Kong
By:
/s/
KANG Seung Kwon
Name:
KANG Seung Kwon
Title:
Director
[Signature Pages Continue]
[Signature Page to Second Amendment]
CELESTICA HOLDINGS PTE LTD,
a company incorporated in Singapore
By:
/s/
Priyanka Mathur
Name:
Priyanka Mathur
Title:
Director
CELESTICA ELECTRONICS (S) PTE
LTD,
a company incorporated in Singapore
By:
/s/
Priyanka Mathur
Name:
Priyanka Mathur
Title:
Director
PCI PRIVATE LIMITED,
a company incorporated in Singapore
By:
/s/
TEO Eng Lin
Name:
TEO Eng Lin
Title:
Director
[Signature Pages Continue]
[Signature Page to Second Amendment]
CELESTICA (NETHERLANDS) B.V.,
a Dutch private company with limited
liability
By:
TMF Netherlands B.V.,
as Director B
By:
/s/
Paul van Duuren
Name:
Paul van Duuren
Title:
Attorney-in-fact A
By:
/s/
Matthijs van Dam
Name:
Matthijs van Dam
Title:
Attorney-in-fact B
By:
/s/
I. M. Balint
Name:
I. M. Balint
Title:
Director A
[Signature Pages Continue]
[Signature Page to Second Amendment]
EMS MANUFACTURING SERVICES (HOLDINGS)
LIMITED,
a company incorporated under the laws
of Barbados as company number 21666
By:
/s/
Douglas M. Parker
Name:
Douglas M. Parker
Title:
Director
[Signature Pages Continue]
[Signature Page to Second Amendment]
CELESTICA IRELAND LIMITED,
a company incorporated in Ireland
with company number 210604
By:
/s/
Ioana Balint
Name:
Ioana Balint
Title:
Director
By:
/s/
Kevin Walsh
Name:
Kevin Walsh
Title:
Director
[Signature Pages Continue]
[Signature Page to Second Amendment]
CELESTICA VALENCIA S.A.U.
By:
/s/
Rocío Fuentes Candau
Name:
Rocío Fuentes Candau
Title:
Authorized Signatory
[Signature Pages Continue]
[Signature Page to Second Amendment]
CELESTICA JAPAN KK
By:
/s/
Chin Weng Chow
Name:
Chin Weng Chow
Title:
Director
[Signature Pages Continue]
[Signature Page to Second Amendment]
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
/s/
Felicia Brinson
Name:
Felicia Brinson
Title:
Assistant Vice President
[Signature Pages Continue]
[Signature Page to Second Amendment]
LENDERS:
BANK OF AMERICA, N.A.,
as a Lender, an L/C Issuer and Swing
Line Lender
By:
/s/
James Haack
Name:
James Haack
Title:
Director
[Signature Pages Continue]
[Signature Page to Second Amendment]
BANK OF AMERICA, N.A.,
acting through its Canada Branch,
as a Lender
By:
/s/ Sylwia Durkiewicz
Name:
Sylwia Durkiewicz
Title:
Vice President
[Signature Pages Continue]
[Signature Page to Second Amendment]
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Lender and an L/C Issuer
By:
/s/
Jenifer Lee
Name:
Jenifer Lee
Title:
Director
By:
/s/
Martin Danaj
Name:
Martin Danaj
Title:
Managing Director
[Signature Pages Continue]
[Signature Page to Second Amendment]
CRÉDIT AGRICOLE CORPORATE AND
INVESTMENT BANK (CANADA BRANCH),
as a Lender
By:
/s/
Andrew Sidford
Name:
Andrew Sidford
Title:
Managing Director
By:
/s/
Gordon Yip
Name:
Gordon Yip
Title:
Director
[Signature Pages Continue]
[Signature Page to Second Amendment]
THE TORONTO-DOMINION BANK,
as a Lender
By:
/s/
Hassan Abbas
Name:
Hassan Abbas
Title:
Managing Director
By:
/s/
Adam Levy
Name:
Adam Levy
Title:
Director
[Signature Pages Continue]
[Signature Page to Second Amendment]
BNP PARIBAS, acting through its Canada
Branch,
as a Lender
By:
/s/
Rod O’Hara
Name:
Rod O’Hara
Title:
Managing Director
By:
/s/
Mathieu Leroux
Name:
Mathieu Leroux
Title:
Director
[Signature Pages Continue]
[Signature Page to Second Amendment]
ROYAL BANK OF CANADA,
as a Lender
By:
/s/
Mike Elsey
Name:
Mike Elsey
Title:
Managing Director
[Signature Pages Continue]
[Signature Page to Second Amendment]
THE BANK OF NOVA SCOTIA,
as a Lender
By:
/s/
Monik Vora
Name:
Monik Vora
Title: Director
By:
/s/
Lucas Vigna
Name:
Lucas Vigna
Title:
Associate
[Signature Pages Continue]
[Signature Page to Second Amendment]
MUFG BANK, LTD., CANADA BRANCH,
as a Lender
By:
/s/
Shiva Srikantan
Name:
Shiva Srikantan
Title:
Director
[Signature Pages Continue]
[Signature Page to Second Amendment]
CITIBANK, N.A., CANADIAN BRANCH,
as a Lender
By:
/s/
Siddharth Sagar
Name:
Siddharth Sagar
Title:
Authorized Signatory
[Signature Pages Continue]
[Signature Page to Second Amendment]
JPMORGAN CHASE BANK, N.A., TORONTO
BRANCH
as a Lender
By:
/s/
Jeffrey Coleman
Name:
Jeffrey Coleman
Title:
Executive Director
[Signature Pages Continue]
[Signature Page to Second Amendment]
EXPORT DEVELOPMENT CANADA,
as a Lender
By:
/s/
Philip Sauvé
Name:
Philip Sauvé
Title:
Senior Financing Manager
By:
/s/
Nivera Vasudha
Name:
Nivera Vasudha
Title:
Financing Manager
[Signature Pages Continue]
[Signature Page to Second Amendment]
HSBC BANK USA, N.A.,
as a Lender
By:
/s/
Alan Kacalski
Name:
Alan Kacalski
Title:
Vice President
[Signature Pages End]
[Signature Page to Second Amendment]
ANNEX A
Amended Credit Agreement
[See attached.]
Annex A to Second Amendment
ANNEX A
TO SECOND AMENDMENT
CREDIT AGREEMENT AS AMENDED BY THE SECOND AMENDMENT
DEAL CUSIP: C2348CAK3
REVOLVER CUSIP:
C2348CAL1
TERM A CUSIP: C2348CAM9
TERM B CUSIP: C2348CAJ6
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 20, 2024
among
CELESTICA INC.,
CELESTICA INTERNATIONAL LP,
CELESTICA (USA) INC. and
CERTAIN SUBSIDIARIES OF CELESTICA INC. IDENTIFIED HEREIN,
as the Borrowers,
CELESTICA INC. and
CERTAIN SUBSIDIARIES OF CELESTICA INC. IDENTIFIED
HEREIN,
as the Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and
an L/C Issuer,
and
THE OTHER LENDERS PARTY HERETO
ROYAL
BANK OF CANADA,
CITIBANK, N.A.,
BNP PARIBAS SECURITIES CORP.,
HSBC SECURITIES (USA) INC.,
and
TD SECURITIES (USA) LLC,
as Co-Documentation Agents
CANADIAN IMPERIAL BANK OF COMMERCE and CIBC WORLD
MARKETS CORP.,
MUFG BANK, LTD., CANADA BRANCH,
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK (CANADA BRANCH),
as Co-Syndication Agents
BANK OF AMERICA, N.A.,
CANADIAN IMPERIAL BANK OF COMMERCE and CIBC WORLD MARKETS CORP.,
MUFG BANK, LTD., CANADA BRANCH,
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK (CANADA BRANCH),
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
1
1.01
Defined Terms
1
1.02
Other Interpretive Provisions
58
1.03
Accounting Terms
60
1.04
Rounding
61
1.05
Exchange Rates; Currency Equivalents; Rates; Licensing
61
1.06
Additional Alternative Currencies
62
1.07
Change of Currency
63
1.08
Times of Day
63
1.09
Letter of Credit Amounts
63
1.10
Limited Condition Acquisition
64
1.11
[Reserved]
65
1.12
Irish Terms
65
1.13
Spanish Terms
65
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
66
2.01
Revolving Loans, Term B Loan and Term A Loan
66
2.02
Borrowings, Conversions and Continuations of Loans
67
2.03
Letters of Credit
68
2.04
[Reserved]
77
2.05
Swing Line Loans
77
2.06
Prepayments
80
2.07
Termination or Reduction of Commitments
84
2.08
Repayment of Loans
84
2.09
Interest
85
2.10
Fees
86
2.11
Computation of Interest and Fees
86
2.12
Evidence of Debt
87
2.13
Payments Generally; Administrative Agent’s Clawback
87
2.14
Sharing of Payments by Lenders
89
2.15
Designated Borrowers
90
2.16
Increase in Commitments
91
2.17
Cash Collateral
96
2.18
Defaulting Lenders
97
2.19
Designated Lenders
99
2.20
Joint and Several Liability
99
2.21
Sustainability Adjustments
100
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
101
3.01
Taxes
101
3.02
Illegality
106
3.03
Inability to Determine Rates
107
3.04
Increased Costs; Reserves
108
3.05
Compensation for Losses
110
3.06
Mitigation Obligations; Replacement of Lenders
111
3.07
Replacement of Rates
112
3.08
Survival
115
i
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
115
4.01
Conditions of Initial Credit Extension
115
4.02
Conditions to all Credit Extensions
118
ARTICLE V. REPRESENTATIONS AND WARRANTIES
119
5.01
Existence, Qualification and Power
119
5.02
Authorization; No Contravention
120
5.03
Governmental Authorization; Other Consents
120
5.04
Binding Effect
120
5.05
Financial Statements; No Material Adverse Effect
120
5.06
Litigation
121
5.07
No Default
121
5.08
Ownership of Property; Liens
121
5.09
Environmental Compliance
121
5.10
Insurance
121
5.11
Taxes
121
5.12
ERISA and Canadian Pension Plan Compliance
122
5.13
Subsidiaries; Equity Interests
123
5.14
Margin Regulations; Investment Company Act
123
5.15
Disclosure
123
5.16
Compliance with Laws
124
5.17
Taxpayer Identification Number; Other Identifying Information
124
5.18
Casualty, Etc.
124
5.19
Solvency
124
5.20
Intellectual Property; Licenses, Etc.
124
5.21
Labor Matters
124
5.22
OFAC
125
5.23
Anti-Corruption Laws
125
5.24
Collateral Documents
125
5.25
Representations as to Non-U.S. Obligors
125
5.26
Affected Financial Institutions
126
5.27
Covered Entities
127
5.28
Centre of Main Interests
127
5.29
Outbound Investment Rules
127
ARTICLE VI. AFFIRMATIVE COVENANTS
127
6.01
Financial Statements
127
6.02
Certificates; Other Information
128
6.03
Notices
130
6.04
Payment of Obligations
131
6.05
Preservation of Existence, Etc.
131
6.06
Maintenance of Properties
131
6.07
Maintenance and Evidence of Insurance
132
6.08
Compliance with Laws
132
6.09
Books and Records
132
6.10
Inspection Rights
133
6.11
Use of Proceeds
133
6.12
Compliance with Environmental Laws
133
6.13
Maintenance of Ratings
133
6.14
Covenant to Guarantee Obligations
134
6.15
Covenant to Give Security
135
6.16
Anti-Corruption Laws; Sanctions
136
6.17
Further Assurances
137
6.18
Pari Passu Ranking
137
6.19
Post-Closing Obligations
137
6.20
Designation of Subsidiaries
137
6.21
Financial Assistance
139
ii
ARTICLE VII. NEGATIVE COVENANTS
139
7.01
Liens
139
7.02
Investments
142
7.03
Indebtedness
144
7.04
Fundamental Changes
148
7.05
Dispositions
149
7.06
Restricted Payments and Junior Payments
152
7.07
Change in Nature of Business
153
7.08
Transactions with Affiliates
153
7.09
Burdensome Agreements
153
7.10
Use of Proceeds
155
7.11
Financial Covenants
155
7.12
Organization Documents; Fiscal Year; Legal Name, Jurisdiction of Formation and Form of Entity
156
7.13
Sale Leasebacks
156
7.14
Amendments to and Prepayments of Additional Indebtedness
156
7.15
Canadian Pension Matters
157
7.16
Sanctions
157
7.17
Anti-Corruption Laws
157
7.18
Outbound Investment Rules
157
7.19
Transfers to Non-Loan Parties
158
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
158
8.01
Events of Default
158
8.02
Remedies Upon Event of Default
161
8.03
Application of Funds
162
ARTICLE IX. ADMINISTRATIVE AGENT
163
9.01
Appointment and Authority
163
9.02
Rights as a Lender
165
9.03
Exculpatory Provisions
165
9.04
Reliance by Administrative Agent
166
9.05
Delegation of Duties
166
9.06
Resignation of Administrative Agent
167
9.07
Non-Reliance on Administrative Agent, Arrangers, Sustainability Coordinators and Other Lenders
168
9.08
No Other Duties, Etc.
169
9.09
Administrative Agent May File Proofs of Claim;
Credit Bidding
169
9.10
Collateral and Guaranty Matters
170
9.11
Secured Cash Management Agreements and Secured Swap Contracts
171
9.12
Certain ERISA Matters
172
9.13
Spanish Formalities
173
9.14
Spanish Calculations; Executive Enforcement
173
9.15
Recovery of Erroneous Payments
174
iii
ARTICLE X. MISCELLANEOUS
174
10.01
Amendments, Etc.
174
10.02
Notices; Effectiveness; Electronic Communication
180
10.03
No Waiver; Cumulative Remedies; Enforcement
182
10.04
Expenses; Indemnity; Damage Waiver
183
10.05
Payments Set Aside
186
10.06
Successors and Assigns
186
10.07
Treatment of Certain Information; Confidentiality
193
10.08
Right of Setoff
194
10.09
Interest Rate Limitation
195
10.10
Integration; Effectiveness
195
10.11
Survival of Representations and Warranties
195
10.12
Severability
195
10.13
Replacement of Lenders
196
10.14
Governing Law; Jurisdiction; Etc.
196
10.15
Service of Process on the Designated Borrowers
198
10.16
Waiver of Jury Trial
198
10.17
No Advisory or Fiduciary Responsibility
199
10.18
Electronic Execution; Electronic Records; Counterparts
199
10.19
USA PATRIOT Act and Canadian AML Acts
200
10.20
Judgment Currency
201
10.21
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
201
10.22
Appointment of Company as Agent
202
10.23
Acknowledgement Regarding Any Supported QFCs
202
10.24
Parallel Debt (Covenant to Pay the Administrative Agent)
203
10.25
Amendment and Restatement of Existing Credit Agreement
204
10.26
[Reserved]
205
10.27
Resignation of Sustainability Coordinators
205
ARTICLE XI. GUARANTY
206
11.01
Guaranty
206
11.02
Obligations Unconditional
207
11.03
Reinstatement
208
11.04
Certain Additional Waivers
209
11.05
Remedies
210
11.06
Rights of Contribution
210
11.07
Guarantee of Payment; Continuing Guarantee
211
11.08
Keepwell
211
11.09
Limitation on Korean Guarantors
212
11.10
Limitation on Irish Guarantors
212
11.11
Limitation on English Guarantors
212
iv
SCHEDULES
1.01
Existing Letters of Credit
2.01
Commitments and Applicable Percentages
2.11
Day Basis for Alternative Currencies
5.13
Subsidiaries
5.17
Identification Numbers for Canadian Borrowers and Designated Borrowers that are Non-U.S. Subsidiaries
5.21
Labor Matters
6.19
Post-Closing Obligations; Certain Subsidiaries
7.01
Existing Liens
7.02
Permitted Investments
7.03
Existing Indebtedness
7.04
Permitted Dissolutions
7.05
Permitted Dispositions
7.08
Existing Transactions with Affiliates
7.09
Existing Burdensome Agreements
10.02
Administrative Agent’s Office; Certain Addresses for Notices
10.06
Disqualified Institutions
EXHIBITS
A
Form of Loan Notice
B
Form of Swing Line Loan Notice
C
Form of Notice of Loan Prepayment
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 Designated Borrower Request and Assumption
Agreement
H
Form of Designated Borrower Notice
I
Form of U.S. Tax Compliance Certificate
J
Form of Joinder Agreement
K
Form of Secured Party Designation Notice
v
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED
CREDIT AGREEMENT (“Agreement”) is entered into as of June 20, 2024, among CELESTICA INC., an Ontario corporation
(the “Company”), CELESTICA INTERNATIONAL LP, an Ontario limited partnership (together with the Company, the “Canadian
Borrowers”), certain Non-U.S. Subsidiaries of the Company party hereto pursuant to Section 2.15 (each a “Non-U.S.
Designated Borrower” and, together with the Canadian Borrowers, the “Non-U.S. Borrowers”), CELESTICA (USA)
INC., a Delaware corporation (the “Initial U.S. Borrower”), certain U.S. Subsidiaries of the Company party hereto pursuant
to Section 2.15 (each a “U.S. Designated Borrower” and, together with the Initial U.S. Borrower, the “U.S.
Borrowers”; the U.S. Designated Borrowers together with the Non-U.S. Designated Borrowers, the “Designated Borrowers”
and each, a “Designated Borrower”; the U.S. Borrowers together with the Non-U.S. Borrowers, the “Borrowers”
and each a, “Borrower”), each Guarantor from time to time party hereto, each Lender from time to time party hereto,
and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer.
The Borrowers, the guarantors
party thereto, the lenders party thereto, and Bank of America, N.A., as administrative agent, swing line lender and an L/C issuer, are
party to that certain Credit Agreement, dated as of June 27, 2018 (as amended, restated, amended and restated, supplemented, or otherwise
modified prior to the Closing Date, the “Existing Credit Agreement”).
The parties hereto wish to
amend and restate the Existing Credit Agreement to provide revolving and term loan credit facilities for the purposes set forth herein
and make certain amendments and modifications to the Existing Credit Agreement, in each case, on the terms and conditions set forth herein.
In consideration of the mutual
covenants and agreements herein contained, the parties hereto covenant and agree that the Existing Credit Agreement is hereby amended
and restated 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:
“Accepting Lenders” has the meaning specified
in Section 10.01(c).
“Accounting Change
Date” means the date specified by the Company in an advance written notice (which may be by email) to the Administrative Agent
as the “Accounting Change Date” under this Agreement, upon a determination (if any) made in accordance with Rule 3b-4
under the Securities Exchange Act of 1934 that it fails to qualify as a foreign private issuer (as such term is defined in Rule 3b-4
of the Securities Exchange Act of 1934); provided, that such date shall be the first day of a fiscal year of the Company.
“Accounting Standard
Change” means the election by the Company to change its financial reporting practices such that, from and after the Accounting
Change Date, the consolidated financial statements of the Company and its Subsidiaries shall be prepared in accordance with GAAP.
“Acquired Indebtedness” has the meaning
specified in Section 7.03(i).
1
“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 any business or division of a Person, (b) the acquisition of in excess
of fifty percent (50%) of the Equity Interests of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger,
amalgamation or consolidation or any other combination with another Person (other than a Person that is a Restricted Subsidiary before
giving effect to such merger, amalgamation or consolidation; provided that the Company or the Restricted Subsidiary is the surviving
entity).
“Additional Indebtedness” has the meaning
specified in Section 7.03(h).
“Additional Secured
Obligations” means (a) all debts, liabilities, obligations, covenants and duties of any Loan Party or any Subsidiary arising
under any Secured Swap Contract and (b) all debts, liabilities, obligations, covenants and duties of any Loan Party or any Subsidiary
arising under any Secured Cash Management Agreement, in the case of each of clauses (a) and (b), whether direct or
indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and
including all costs and expenses incurred in connection with the enforcement and collection of the foregoing and interest and fees that
accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming
such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided
that Additional Secured Obligations of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party.
“Administrative Agent”
means Bank of America (or any of its designated branch offices or affiliates, including Bank of America, N.A., acting through its Canada
Branch for Loans denominated in Canadian Dollars) in its capacity as administrative agent under any of the Loan Documents, or any successor
administrative agent; provided that, for purposes of the Collateral Documents, each reference to the Administrative Agent with
respect to the identity of the holder of the Lien or security interest granted therein shall mean Bank of America, N.A., in its capacity
as Administrative Agent under any of the Loan Documents (except as may be expressly stated otherwise in such Collateral Document).
“Administrative Agent’s
Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth
on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative
Agent may from time to time notify the Company and the Lenders.
“Administrative Questionnaire”
means an Administrative Questionnaire in 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 U.K. Financial Institution.
“Affiliate”
means, with respect to a specified 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.
“Aggregate Revolving
Commitments” means the Revolving Commitments of all the Revolving Lenders. The initial amount of the Aggregate Revolving Commitments
in effect on the Second Amendment Effective Date is ONE BILLION SEVEN HUNDRED FIFTY MILLION DOLLARS ($1,750,000,000).
2
“Agreed Currency” means Dollars or any
Alternative Currency, as applicable.
“Agreement” means this Credit Agreement.
“Agreement Currency” has the meaning specified
in Section 10.20.
“All-In-Yield”
means, with respect to any Term Facility, the weighted average yield to maturity with respect to such Term Facility which shall take into
account any interest rate margins, interest rate floors or similar devices and shall be deemed to include any original issue discount
and any fees (other than facility arrangement, underwriting or other closing fees and expenses not paid for the account of, or distributed
to, all Lenders providing such Term Facility) paid or payable to such Lenders in connection with such Term Facility, in each case, as
reasonably determined by the Administrative Agent in a manner consistent with customary financial practice based on the Weighted Average
Life of such Term Facility, commencing from the borrowing date of such Term Facility and assuming that the interest rate (including the
Applicable Rate) for such Term Facility in effect on such borrowing date (after giving effect to the Indebtedness incurred in connection
with such Term Facility) shall be the interest rate for the entire Weighted Average Life of such Term Facility.
“Alternative Currency”
means each of the following currencies: Canadian Dollars, Euro and Sterling, together with each other currency (other than Dollars) that
is approved in accordance with Section 1.06; provided that for each Alternative Currency, such requested currency is
an Eligible Currency.
“Alternative Currency Daily Rate” means,
for any day, with respect to any Credit Extension:
(a) denominated
in Sterling, the rate per annum equal to SONIA determined pursuant to the definition thereof; and
(b) denominated
in any other Alternative Currency (to the extent such Loans denominated in such currency will bear interest at a daily rate), the daily
rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative
Agent and the relevant Lenders pursuant to Section 1.06(c) plus the adjustment (if any) determined by the Administrative
Agent and the relevant Lenders pursuant to Section 1.06(c);
provided, that, if any Alternative
Currency Daily Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. Any change in an Alternative
Currency Daily Rate shall be effective from and including the date of such change without further notice.
“Alternative Currency
Daily Rate Loan” means a Loan that bears interest at a rate based on the definition of “Alternative Currency Daily Rate”.
All Alternative Currency Daily Rate Loans must be denominated in an Alternative Currency.
“Alternative
Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof
in the applicable Alternative Currency as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be,
by reference to Bloomberg (or such other publicly available service for displaying exchange rates), to be the exchange rate for the
purchase of such Alternative Currency with Dollars at approximately 11:00 a.m. on the date two (2) Business Days prior to
the date as of which the foreign exchange computation is made; provided, however, that if no such rate is available,
the “Alternative Currency Equivalent” shall be determined by the Administrative Agent or the applicable L/C Issuer, as
the case may be, using any reasonable method of determination it deems appropriate in its sole discretion (and such determination
shall be conclusive absent manifest error).
3
“Alternative Currency
Loan” means an Alternative Currency Daily Rate Loan or an Alternative Currency Term Rate Loan, as applicable.
“Alternative Currency
Scheduled Unavailability Date” has the meaning specified in Section 3.07(b)(ii).
“Alternative Currency
Sublimit” means an amount equal to the lesser of (a) $100,000,000 and (b) the Aggregate Revolving Commitments. The
Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“Alternative Currency Successor Rate”
has the meaning specified in Section 3.07(b).
“Alternative Currency Term Rate” means,
for any Interest Period, with respect to any Loan:
(a) denominated
in Euros, the rate per annum equal to the Euro Interbank Offered Rate (“EURIBOR”), as published on the applicable Reuters
screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent
from time to time) on the day that is two (2) TARGET Days preceding the first day of such Interest Period with a term equivalent
to such Interest Period;
(b) denominated
in Canadian Dollars, the rate per annum equal to the forward-looking term rate based on CORRA (“Term CORRA”), as published
on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated
by the Administrative Agent from time to time) (in such case, the “Term CORRA Rate”) on the day that is two (2) Business
Days prior to the first day of such Interest Period (or if such day is not a Business Day, then on the immediately preceding Business
Day) with a term equivalent to such Interest Period plus the Term CORRA Adjustment for such Interest Period; and
(c) denominated
in any other Alternative Currency (to the extent such Loans denominated in such currency will bear interest at a term rate), the term
rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative
Agent and the relevant Lenders pursuant to Section 1.06(a) plus the adjustment (if any) determined by the Administrative
Agent and the relevant Lenders pursuant to Section 1.06(a);
provided, that, if any Alternative
Currency Term Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Alternative Currency
Term Rate Loan” means a Loan that bears interest at a rate based on the definition of “Alternative Currency Term Rate”.
All Alternative Currency Term Rate Loans must be denominated in an Alternative Currency.
4
“Applicable Accounting
Standard” means, as of any date of determination, (a) prior to the delivery of the first audited financial statements of
the Company to be delivered after the Accounting Change Date, IFRS, and (b) on or after delivery of the first audited financial
statements of the Company to be delivered after the Accounting Change Date (and with respect to any calculations provided concurrently
with such audited financial statements), GAAP; provided, that when used with respect to the preparation and delivery of financial
statements pursuant to Section 6.01, “Applicable Accounting Standard” means, as of any date of determination,
(x) prior to the Accounting Change Date, IFRS, and (y) on or after the Accounting Change Date, GAAP.
“Applicable Authority”
means, with respect to any Alternative Currency, the applicable administrator for the Relevant Rate for such Alternative Currency or any
Governmental Authority having jurisdiction over the Administrative Agent or such administrator.
“Applicable Non-U.S. Obligor Documents”
has the meaning specified in Section 5.25(a).
“Applicable Percentage”
means with respect to any Lender at any time, (a) with respect to such Lender’s Revolving Commitment at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment
at such time; provided that if the commitment of each Lender to make Loans and the obligation of the L/C Issuers to make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Revolving 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 (b) with respect to such Lender’s portion of an outstanding Term Facility at any
time, the percentage (carried out to the ninth decimal place) of the outstanding principal amount of such Term Facility held by such Lender
at such time. The Applicable Percentage of each Lender (i) (x) with respect to each Lender holding an outstanding portion of
the Term B Loan, as of the Closing Date is set forth opposite the name of such Lender on Schedule 2.01 and (y) with respect
to the Term A Loan Commitments and the Aggregate Revolving Commitments, as of the Second Amendment Effective Date is set forth opposite
the name of such Lender on Schedule 2.01, as amended by the Second Amendment and (ii) of each Person that becomes a Lender
after the Closing Date is set forth in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or in any documentation
executed by such Lender in connection with an Incremental Facility. The Applicable Percentages shall be subject to adjustment as provided
in Section 2.18.
“Applicable Rate”
means (a) with respect to the Term B Loan, one and 3/4 of one percent (1.75%) per annum in the case of Term
SOFR Loans and 3/4 of one percent (0.75%) per annum in the case of Base Rate Loans, (b) [reserved], (c) with
respect to any Incremental Term Loan, the rate per annum set forth in the Incremental Facility Amendment establishing such Incremental
Term Loans, subject, in the case of any Incremental Tranche B Term Loan, to the provisions of Section 2.16(j) and (d) with
respect to the Term A Loan, Revolving Loans, Swing Line Loans, Letter of Credit Fees and the commitment fee payable pursuant to Section 2.10(a),
the following percentages per annum, based upon the Corporate Rating as set forth below:
Term SOFR Loans/Term
Base Rate
Pricing
Corporate Rating
CORRA Loans/Other
Loans/Canadian
Commitment
Level
S&P/Moody’s/Fitch
Alternative Currency
Prime Rate Loans
Fee
Loans/Letter of Credit Fees
5
< BB/Ba2/BB
1.75%
0.75%
0.275%
4
BB+/Ba1/BB+
1.50%
0.50%
0.225%
3
BBB-/Baa3/BBB-
1.25%
0.25%
0.175%
2
BBB/Baa2/BBB
1.125%
0.125%
0.125%
1
> BBB+/Baa1/BBB+
1.00%
0.05%
0.100%
5
The Applicable Rate (other than with respect to
the Term B Loan and any applicable Incremental Term Loan) in effect as of the Second Amendment Effective Date through the next publicly
announced change in the Corporate Rating shall be determined based upon Pricing Level 4; provided, however, for purposes
of determining the Applicable Rate for the Commitment Fee, such change (if any) shall not be made effective until the first Business Day
immediately following the date of delivery of financial statements delivered pursuant to Section 6.02(a) and the related
Compliance Certificate for the first full fiscal quarter of the Company ending after the Second Amendment Effective Date. Thereafter,
each change in the Applicable Rate resulting from a publicly announced change in the Corporate Rating shall be effective, in the case
of an upgrade, during the period commencing on the date of delivery by the Company to the Administrative Agent of notice thereof pursuant
to Section 6.03(h) and ending on the date immediately preceding the effective date of the next such change and, in the
case of a downgrade, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding
the effective date of the next such change. If the rating system of S&P, Moody’s or Fitch shall change, or if any such rating
agency shall cease to be in the business of providing Corporate Ratings, the Company and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the unavailability of Corporate Ratings from such rating agency and, pending
the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the Corporate Rating most recently in
effect prior to such change or cessation.
“Applicable Time”
means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative
Currency as may be determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, to be necessary for timely
settlement on the relevant date in accordance with normal banking procedures in the place of payment.
“Applicant Borrower” has the meaning specified
in Section 2.15.
“Approved Fund”
means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
“Arrangers”
means (a) as of the Closing Date, each of the following in its capacity as a joint lead arranger and joint bookrunner: Bank of America
(or any of its designated affiliates), CIBC World Markets Corp. and Canadian Imperial Bank of Commerce (or any of its or their designated
affiliates), MUFG Bank, Ltd., Canada Branch (or any of its designated affiliates), and Crédit Agricole Corporate and Investment
Bank (Canada Branch) (or any of its designated affiliates); and (b) thereafter, any other Person designated as a lead arranger or
bookrunner on the cover page of any amendment, modification or supplement of this Agreement.
“Assignment and Assumption”
means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required
by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit F-1 or any
other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
6
“Attributable Indebtedness”
means, with respect to any Person on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof
that would appear on a balance sheet of such Person prepared as of such date in accordance with the Applicable Accounting Standard as
in effect on such date (subject to Section 1.03(b) hereof), (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared
as of such date in accordance with the Applicable Accounting Standard as in effect on such date if such lease were accounted for as a
capital lease and (c) in respect of any Securitization Transaction (other than the Specified Receivables Purchase Agreement and any
other securitization program that is not recorded as debt in accordance with the Applicable Accounting Standard as in effect on such date),
the amount of obligations outstanding on any date of determination that would be characterized as principal if such Securitization Transaction
had been structured as a secured loan rather than a sale; provided that, for the avoidance of doubt, no obligations outstanding
under the Specified Receivables Purchase Agreement or under any other securitization program that is not recorded as debt in accordance
with the Applicable Accounting Standard as in effect on such date shall be deemed to be Attributable Indebtedness.
“Audited Financial
Statements” means the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended December 31,
2025, and the related consolidated statements of operations, comprehensive income, changes in equity and cash flows for such fiscal year
of the Company and its Subsidiaries, including the notes thereto.
“Authorization to
Share Insurance Information” means the authorization, duly executed by the applicable Loan Party or Loan Parties, in form and
substance reasonably acceptable to the Administrative Agent, authorizing the sharing of insurance information of the Loan Parties and
their Subsidiaries.
“Auto-Extension Letter of Credit” has
the meaning specified in Section 2.03(b)(iii).
“Auto-Reinstatement Letter of Credit”
has the meaning specified in Section 2.03(b)(iv).
“Availability Period”
means, with respect to the Revolving Commitments, the period from and including the Second Amendment Effective Date to the earliest of
(a) the Maturity Date applicable to Revolving Loans, Swing Line Loans and Letters of Credit (and the related L/C Obligations), (b) the
date of termination of the Aggregate Revolving Commitments pursuant to Section 2.07, and (c) the date of termination
of the commitment of each Lender to make Revolving Loans and of the obligation of each L/C Issuer to make L/C Credit Extensions pursuant
to Section 8.02.
“Available Amount”
means at any date of determination, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to, without
duplication:
(a) the
greater of (i) $500,000,000 and (ii) 7.5% of Consolidated Total Assets (determined as of the date of the applicable transaction
made in reliance on the Available Amount), plus
(b) commencing
on the first day of the fiscal quarter ending June 30, 2026:
(i) fifty
percent (50%) of Consolidated Net Income (in an amount, in any event, not less than zero and excluding any such proceeds that are
reinvested or required to be reinvested) during the period from the Second Amendment Effective Date to the end of the most recent
fiscal quarter preceding the date of any Investment, Restricted Payment or Junior Payment, in each case, using any portion of the
Available Amount for which financial statements have been (or were required to be) delivered pursuant to Section 6.01(a) or (b) (or,
in case such Consolidated Net Income is a deficit, minus 100% of such deficit), minus amounts previously utilized
thereunder for Investments, Restricted Payments or Junior Payments, plus
7
(ii) the
aggregate amount of Net Cash Proceeds received (other than Net Cash Proceeds received from a Subsidiary) from the issuance of or sale
of Equity Interests of, or a common cash capital contribution to, the Company after the Second Amendment Effective Date (other than the
proceeds of any (A) Disqualified Equity Interests, or (B) other equity issuance or capital contribution to the extent the proceeds
thereof are applied pursuant to any other provision of this Agreement), plus
(iii) the
proceeds of sales of Investments after the Second Amendment Effective Date made using the Available Amount (up to the amount of the original
Investment), plus
(iv) in
the event any Unrestricted Subsidiary has been re-designated as a Restricted Subsidiary or has been merged, consolidated or amalgamated
with or into, or transfers or conveys its assets to, or is liquidated into, the Company or a Restricted Subsidiary, in each case after
the Second Amendment Effective Date, the fair market value of the Investments of the Company and the Restricted Subsidiaries in such Unrestricted
Subsidiary as of the time of such re-designation, combination or transfer (or of the assets transferred or conveyed, as applicable) so
long as such Investments were originally made pursuant to Section 7.02(w); provided that, in each case, such amount
does not exceed the amount of such Investment made pursuant to such Section as such amount is reduced by any returns contemplated
by the following clause (v) prior to such time, plus
(v) returns,
profits, distributions and similar amounts received on Investments made using the Available Amount (up to the amount of the original Investment),
minus
(c) all
amounts previously utilized under the “Available Amount” for Investments, Restricted Payments and Junior Payments.
“Back-Up Indemnity Payment” has the meaning
specified in Section 3.01(c).
“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected
Financial Institution.
“Bail-In
Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU
of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such
EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, (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), and
(c) in relation to any state other than an EEA Member Country and the United Kingdom, any analogous law or regulation from time
to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
8
“Bank of America” means Bank of America,
N.A. and its successors.
“Bankruptcy Code”
means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq.).
“Base Rate”
means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2
of one percent (0.50%), (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America
as its “prime rate,” and (c) Term SOFR plus one percent (1.00%); provided that if the Base Rate shall be
less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America
based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such
prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of
such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 or Section 3.07
hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference
to clause (c) above.
“Base Rate Loan”
means a Loan that bears interest based on the Base Rate. All Base Rate Loans are only available for Loans denominated in Dollars.
“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 Section 3(3) of ERISA) that is subject to Title
I of ERISA, (b) a “plan” as defined in 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”.
“Blocking Law”
means (a) any provision of Council Regulation (EC) No 2271/1996 of 22 November 1996 (or any law or regulation implementing such
Regulation in any member state of the European Union), (b) section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung),
or (c) any provision of Council Regulation (EC) No 2271/1996 of 22 November 1996, as it forms part of domestic law of the United
Kingdom.
“BofA Securities” means BofA Securities, Inc.
(or any of its designated affiliates).
“Borrower”
and “Borrowers” each has the meaning specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning specified
in Section 6.02.
“Borrowing”
means a borrowing consisting of simultaneous Loans of the same Type, in the same currency, and, in the case of Term SOFR Loans or Alternative
Currency Term Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
9
“Business Day”
means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent’s Office is located; provided that:
(a) [reserved];
(b) if
such day relates to any interest rate settings as to an Alternative Currency Loan denominated in Euro, any fundings, disbursements, settlements
and payments in Euro in respect of any such Alternative Currency Loan, or any other dealings in Euro to be carried out pursuant to this
Agreement in respect of any such Alternative Currency Loan, means any such day that is also a TARGET Day;
(c) when
used in connection with any fundings, disbursements, settlements, payments and interest rate settings as to a Canadian Prime Rate Loan
or any other dealings in Canadian Dollars (including, for the avoidance of doubt, any other Loans denominated in Canadian Dollars) to
be carried out pursuant to this Agreement or any of the other Loan Documents, means any such day other than a day on which banking institutions
in Toronto, Ontario are authorized by law to close;
(d) if
such day relates to any interest rate settings as to an Alternative Currency Loan denominated in (i) Sterling, means a day other
than a day banks are closed for general business in London, including because such day is a Saturday, a Sunday or a legal holiday under
the laws of the United Kingdom; or (ii) a currency other than Euro, Canadian Dollars or Sterling, means any such day on which dealings
in deposits in the relevant currency are conducted by and between banks in the London or other applicable interbank market for such currency;
and
(e) if
such day relates to any fundings, disbursements, settlements and payments in a currency other than Euro in respect of an Alternative Currency
Loan denominated in a currency other than Euro, or any other dealings in any currency other than Euro to be carried out pursuant to this
Agreement in respect of any such Alternative Currency Loan (other than any interest rate settings), means any such day on which banks
are open for foreign exchange business in the principal financial center of the country of such currency.
“Call Protection
Period” means, with respect to the Term B Loan, the period from the Closing Date to, and including, the date that is six (6) months
after the Closing Date.
“Canadian AML Acts”
means applicable Canadian law regarding anti-money laundering, anti-terrorist financing, government sanction and “know your client”
matters, including the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada).
“Canadian Defined
Benefit Pension Plan” means a Canadian Pension Plan that contains or has ever contained a “defined benefit provision”
as such term is defined in Section 147.1(1) of the Income Tax Act (Canada).
“Canadian Dollar” and “CAD”
means the lawful currency of Canada.
“Canadian Dollar
Sublimit” means an amount equal to the lesser of (a) $300,000,000 and (b) the Aggregate Revolving Commitments. The
Canadian Dollar Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
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“Canadian Pension
Plan” means a pension plan or plan that is subject to applicable pension benefits legislation in any jurisdiction of Canada
and that is organized and administered to provide pensions, pension benefits or retirement benefits for employees and former employees
of any Loan Party or any Subsidiary thereof.
“Canadian Prime Rate”
means, for any day a fluctuating rate of interest per annum equal to the greater of (a) the per annum rate of interest quoted or
established as the “prime rate” of the Administrative Agent which it quotes or establishes for such day as its reference rate
of interest in order to determine interest rates for commercial loans in Canadian Dollars in Canada to its Canadian borrowers; and (b) the
Term CORRA Rate for a one (1) month term that is two (2) Business Days prior to such date plus the Term CORRA Adjustment
plus 1/2 of one percent (0.50%) per annum, adjusted automatically with each quoted or established change
in such rate, all without the necessity of any notice to any Borrower or any other Person; provided that if the Canadian Prime
Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. Such “prime rate” referenced
in clause (a) above is based on various factors including cost and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the
prime rate shall take effect at the opening of business on the day specified in the public announcement of such change.
“Canadian Prime Rate
Loan” means a Revolving Loan that bears interest based on the Canadian Prime Rate. All Canadian Prime Rate Loans are only available
to the Canadian Borrowers and shall be denominated in Canadian Dollars.
“Canadian Sanctions
List” means the list of names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of
the Criminal Code (Canada), the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and/or the United
Nations Al-Qaida and Taliban Regulations and/or the Special Economic Measures Act (Canada).
“Canadian Security
Agreement” means that certain Amended and Restated Canadian Security and Pledge Agreement, dated as of the Closing Date executed
in favor of the Administrative Agent, for the benefit of the Secured Parties, by the Company and certain Non-U.S. Obligors.
“Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuers or the Lenders,
as collateral for L/C Obligations, or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit
account balances or, if the Administrative Agent and the applicable L/C Issuer(s) shall agree in their sole discretion, other credit
support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable
L/C Issuer(s). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of
such cash collateral and other credit support.
“Cash Equivalents” means, at any date:
(a) securities
issued or directly and fully guaranteed or insured by the United States or, in the case of a Non-U.S. Subsidiary, readily marketable
obligations issued or directly and fully guaranteed or insured by the government of the country of such Non-U.S. Subsidiary, or any
agency or instrumentality thereof (provided that the full faith and credit of the United States or, in the case of a Non-U.S.
Subsidiary, the government of the country of such Non-U.S. Subsidiary, is pledged in support thereof), having maturities of not more
than three hundred sixty (360) days from the date of acquisition;
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(b) (i) with
respect to any U.S. Borrower or any U.S. Subsidiary, Dollar denominated time deposits, certificates of deposit and bankers’ acceptances
of (A) any Lender under the Revolving Facility, (B) any domestic commercial bank of recognized standing having capital and surplus
in excess of $500,000,000 or (C) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent
thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank being a “U.S. Approved Bank”)
and (ii) with respect to the Company or any Non-U.S. Subsidiary, time deposits, certificates of deposit and bankers’ acceptances
denominated in (x) Dollars, (y) the currency of the country in which such Non-U.S. Subsidiary maintains its chief executive
office and principal place of business; provided such country is a member of the Organization for Economic Cooperation and Development
or (z) such currency acceptable to the Administrative Agent in its sole discretion, in each case, of (A) any Lender under the
Revolving Facility, (B) any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000,
(C) a bank having capital and surplus in excess of $500,000,000 formed under any state, commonwealth, territory, province or similar
political subdivision of the country in which such Non-U.S. Subsidiary maintains its chief executive office and principal place of business;
provided such country is a member of the Organization for Economic Cooperation and Development, (D) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent
thereof or (E) a bank or other financial institution acceptable to the Administrative Agent in its sole discretion (any such bank
being a “Non-U.S. Approved Bank” and together with any U.S. Approved Bank, each an “Approved Bank”),
in each case with maturities of not more than two hundred seventy (270) days from the date of acquisition;
(c) commercial
paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued
by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof)
or better by Moody’s and maturing within one hundred eighty (180) days of the date of acquisition;
(d) repurchase
agreements entered into by any Person with a bank or trust company (including any Lender under the Revolving Facility) or recognized securities
dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States
in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least one hundred percent (100%) of the amount of the repurchase obligations;
(e) securities
with maturities of one (1) year or less from the date of acquisition thereof issued or fully guaranteed by (i) any state, commonwealth
or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory, the
securities of any such state, commonwealth or territory being rated at least “Prime-1” (or the then equivalent grade) by Moody’s
or at least “A-1” (or the then equivalent grade) by S&P or (ii) solely with respect to any Non-U.S. Subsidiary, any
state, commonwealth, territory, province or similar political subdivision of the country in which such Non-U.S. Subsidiary maintains its
chief executive office and principal place of business; provided such country is a member of the Organization for Economic Cooperation
and Development; and
(f) investments,
classified in accordance with the Applicable Accounting Standard as in effect on such date as current assets, in money market
investment programs registered under the Investment Company Act of 1940 which have the highest rating obtainable from either
Moody’s or S&P and the portfolios of which substantially all of the Investments in such portfolios are of the character
described in the foregoing clauses (a) through (d).
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“Cash Management
Agreement” means any agreement that is not prohibited by the terms hereof to provide treasury or cash management services, including
deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer,
automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation
and reporting and trade finance services and other cash management services.
“Cash Management
Bank” means any Person in its capacity as a party to a Cash Management Agreement that, (a) at the time it enters into a
Cash Management Agreement with a Loan Party or any Subsidiary, is a Lender or an Affiliate of a Lender, or (b) at the time it (or
its Affiliate) becomes a Lender, is a party to a Cash Management Agreement with a Loan Party or any Subsidiary, in each case in its capacity
as a party to such Cash Management Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be
a Lender); provided, however, that for any of the foregoing to be included as a “Secured Cash Management Agreement”
on any date of determination by the Administrative Agent, the applicable Cash Management Bank (other than the Administrative Agent or
an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to
such date of determination.
“CFC” means
any Subsidiary that is a controlled foreign corporation within the meaning Section 957 of the Code and that is owned, directly or
indirectly, by a U.S. Subsidiary.
“CFC Holdco”
means (a) any direct or indirect U.S. Subsidiary that has no material assets other than the Equity Interests of one or more CFCs
and (b) any direct or indirect U.S. Subsidiary that has no material assets other than the Equity Interests or Indebtedness of one
or more other U.S. Subsidiaries of the type referred to in the immediately preceding clause (a).
“Change in Law”
means the occurrence, after the Closing Date, 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 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, Canada or foreign regulatory authorities,
in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted,
adopted or issued.
“Change of Control” means an event or
series of events by which:
(a) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in
its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to
have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time (such right, an “option right”)), directly or
indirectly, of equity securities of the Company carrying thirty-five percent (35%) or more of the voting power of all outstanding
equity securities of the Company on a fully-diluted basis (and taking into account all such securities that such person or group has
the right to acquire pursuant to any option right);
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(b) during
any period of twenty-four (24) consecutive months a majority of the members of the board of directors or other equivalent governing body
of the Company cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred
to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority
of that board or equivalent governing body; or
(c) the
Company fails to own and control, directly or indirectly, one hundred percent (100%) of the outstanding Equity Interests (other than (i) directors’
qualifying shares and (ii) shares issued to foreign nationals to the extent required by applicable Law) of each other Borrower.
“Closing Date” means June 20, 2024
“CME” means CME Group Benchmark Administration
Limited.
“Code” means the Internal Revenue Code
of 1986.
“Collateral”
means a collective reference to all property with respect to which Liens in favor of the Administrative Agent are purported to be granted
pursuant to and in accordance with the Collateral Documents.
“Collateral Documents”
means a collective reference to the Security Agreements, each Joinder Agreement and all other security or pledge agreements or documents
as may be executed and delivered by any Loan Party pursuant to the terms of Section 6.15 or any of the Loan Documents.
“Commitment”
means, as to each Lender, the Revolving Commitment of such Lender, the Term A Loan Commitment of such Lender and/or the Term B Loan Commitment
of such Lender and shall include, as the context requires, any unfunded commitment of such Lender to fund any portion of an Incremental
Term Loan.
“Commodity Exchange Act” means the Commodity
Exchange Act (7 U.S.C. Section 1 et seq.).
“Communication”
means this Agreement, any Loan Document and any document, amendment, approval, consent, information, notice, certificate, request, statement,
disclosure or authorization related to any Loan Document.
“Company” has the meaning specified in
the introductory paragraph hereto.
“Compliance Certificate” means a certificate
substantially in the form of Exhibit E.
“Conforming
Changes” means, with respect to the use, administration of or any conventions associated with SOFR, Term SOFR, SONIA,
EURIBOR, CORRA, Term CORRA or any proposed Successor Rate for an Agreed Currency, as applicable, any conforming changes to the
definitions of “Base Rate”, “SOFR”, “Term SOFR”, “SONIA”, “EURIBOR”,
“CORRA”, “Term CORRA”, “Canadian Prime Rate” and “Interest Period”, timing and
frequency of determining rates and making payments of interest and other technical, administrative or operational matters
(including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business
Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods and the
day basis for calculating interest for an Agreed Currency listed on Schedule 2.11) as may be appropriate, in the discretion
of the Administrative Agent, to reflect the adoption and implementation of such applicable rate(s) and to permit the
administration thereof by the Administrative Agent in a manner substantially consistent with market practice for such Agreed
Currency (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively
feasible or that no market practice for the administration of such rate for such Agreed Currency exists, in such other manner of
administration as the Administrative Agent determines in consultation with the Company is reasonably necessary in connection with
the administration of this Agreement and any other Loan Document).
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“Connection Income
Taxes” means Other Connection Taxes that are imposed on or measured by net earnings (however denominated) or that are franchise
Taxes or branch profits Taxes.
“Consolidated Current
Assets” means, as of any date of determination, all assets of the Company and its Restricted Subsidiaries (other than cash and
Cash Equivalents) that would, in accordance with the Applicable Accounting Standard as in effect on such date, be classified on a consolidated
balance sheet of the Company as current assets as of such date.
“Consolidated Current
Liabilities” means, as of any date of determination, all liabilities (without duplication) of the Company and its Restricted
Subsidiaries that would, in accordance with the Applicable Accounting Standard as in effect on such date, be classified on a consolidated
balance sheet of the Company and its Restricted Subsidiaries as current liabilities as of such date; provided, however,
that Consolidated Current Liabilities shall not include (a) current maturities of any long-term Indebtedness, (b) outstanding
revolving loans and (c) the current portion of any other long-term liabilities.
“Consolidated
EBITDA” means, for any period, for the Company and its Restricted Subsidiaries on a consolidated basis, an amount equal to
Consolidated Net Income for such period plus (a) the following without duplication and to the extent deducted (and not
added back) in calculating such Consolidated Net Income (other than clause (vi) below): (i) Consolidated Interest
Charges for such period (other than the implicit financing costs in respect of Synthetic Lease Obligations), (ii) the provision
for federal, state, local and foreign Taxes by the Company and its Restricted Subsidiaries for such period, (iii) depreciation
and amortization expense for such period, (iv) non-cash charges and purchase accounting deductions reducing such Consolidated
Net Income, including but not limited to (A) any write-offs or write-downs, (B) losses on sales, disposals or abandonment
of, or any impairment charges or asset write-offs related to, intangible assets, long-lived assets and investments in debt and
equity securities and (C) other non-cash charges, non-cash expenses or non-cash losses; provided that notwithstanding
the foregoing, nothing contained in this clause (iv) shall exclude from the calculation of Consolidated EBITDA
(1) any non-cash charge that is expected to be paid in cash in any future period or (2) any write-down of accounts
receivable, (v) unusual or non-recurring expenses and charges (including, for the avoidance of doubt, one-time charges in
respect of bonus payments made in connection with any Acquisition) for such period, (vi) the amount of synergies and cost
savings projected by the Company in good faith to be realized as a result of any Permitted Acquisition so long as (A) such
synergies and costs savings are (I) reasonably identifiable and factually supportable and (II) reasonably attributable to
the Permitted Acquisition specified and reasonably anticipated to result therefrom, and (B) the benefits resulting from such
Permitted Acquisition are reasonably expected to be realized within twenty-four (24) months of the closing date of such Permitted
Acquisition; provided that the aggregate amount added pursuant to the foregoing clauses (v) and (vi) shall
not exceed twenty-five percent (25%) of Consolidated EBITDA (calculated prior to giving effect to any such adjustment made pursuant
to the foregoing clauses (v) or (vi)) for such period and (vii) the amount of any costs, charges, accruals,
reserves or expenses attributable to the undertaking and/or implementation of cost savings initiatives, operating expense
reductions, operating improvements, product margin synergies and product cost and other synergies and similar initiatives,
integration, transition, reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses,
restructuring costs (including those related to tax restructurings), charges, accruals, reserves or expenses attributable to the
undertaking and/or implementation of cost savings initiatives, operating expense reductions, business optimization and other
restructuring costs, charges, accruals, reserves and expenses (including, but not limited to, costs related to the opening,
pre-opening, closure, relocation and/or consolidation of locations, recruitment expenses (including headhunter fees and relocation
expenses), severance payments, and professional and consulting fees incurred in connection with any of the foregoing); provided
that the aggregate amount added pursuant to this clause (vii) shall not exceed $50,000,000 per annum, minus
(b) the following without duplication and to the extent included (and not deducted) in calculating such Consolidated Net
Income: (i) federal, state, local and foreign Tax recoveries of the Company and its Restricted Subsidiaries for such period,
(ii) non-cash items (excluding (A) any non-cash recovery that is expected to be received in cash in any future period and
(B) any reversal of a write-down of current assets) increasing Consolidated Net Income for such period and (iii) unusual
or non-recurring gains for such period incurred outside the ordinary course of business; provided that in the event of the
acquisition by the Company or a Restricted Subsidiary of a newly acquired Restricted Subsidiary or operation (as such term is used
in the definition of “Pro Forma Basis”), Consolidated EBITDA will include the Target EBITDA of the newly acquired
Restricted Subsidiary or operation on a Pro Forma Basis in accordance with the terms of the definition of “Pro Forma
Basis”; provided, further, that for the avoidance of doubt, all amounts herein in respect of stock-based
compensation by the Company or any Restricted Subsidiary are accounted for on a cash basis.
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“Consolidated
Excess Cash Flow” means, for any period for the Company and its Restricted Subsidiaries on a consolidated basis, an amount
(if positive) equal to Consolidated Net Income for such period plus (a) the following without duplication: (i) an
amount equal to any net decrease in Consolidated Working Capital from the first day to the last day of such period, (ii) to the
extent not included in Consolidated Net Income, any cash gains and income (actually received in cash) during such period and
(iii) the amount of all non-cash losses, charges and expenses deducted in calculating Consolidated Net Income including for
depreciation and amortization for such period, minus (b) the following without duplication: (i) Consolidated
Interest Charges actually paid in cash for such period, (ii) cash taxes paid by the Company and its Restricted Subsidiaries
during such period, (iii) all scheduled payments of principal on Consolidated Funded Indebtedness (including, without
limitation, the Term Loans) actually paid in such period, (iv) an amount equal to any net increase in Consolidated Working
Capital from the first day to the last day of such period, (v) the amount of (A) any non-cash gains and income included in
calculating Consolidated Net Income for such period and (B) all cash expenses, charges and losses excluded in arriving at such
Consolidated Net Income, in each case, to the extent not financed with the proceeds of long-term, non-revolving Indebtedness,
(vi) any required up-front cash payments in respect of Swap Contracts to the extent not financed with the proceeds of
long-term, non-revolving Indebtedness and not deducted in arriving at such Consolidated Net Income, (vii) any cash payments
actually made during such period that represent a non-cash charge from a previous period and deducted in calculating Consolidated
Excess Cash Flow in a previous period, (viii) the aggregate amount of expenditures actually made by the Company or any of its
Restricted Subsidiaries in cash during such period for the payment of financing fees, rent and pension and other retirement benefits
to the extent that such expenditures are not from such period, (ix) capital expenditures actually paid in cash by the Company
or any Restricted Subsidiary, (x) the aggregate amount actually paid in cash by the Company and its Restricted Subsidiaries on
account of Permitted Investments, (xi) to the extent not deducted in the calculation of Consolidated Net Income for such
period, the amount of Restricted Payments pursuant to Section 7.06(d) and (f) (or otherwise consented
to by the Required Lenders) made in cash and (xii) without duplication, the aggregate amount of cash payments made in respect
of finance leases for such period; provided that in the case of each of the preceding clauses (b)(viii) through (b)(xi),
such amount shall be deducted only to the extent any such amount is (I) paid (1) during such period (other than any such
amount paid during such period but prior to the Consolidated Excess Cash Flow Prepayment Date for the immediately preceding period
and previously deducted from Consolidated Excess Cash Flow for the immediately preceding period) or (2) following the end of
such period but prior to the Consolidated Excess Cash Flow Prepayment Date for such period and, upon the election of the Company by
written notice delivered to the Administrative Agent prior to the Consolidated Excess Cash Flow Prepayment Date for such period,
deducted from Consolidated Excess Cash Flow for such period and (II) not financed with long-term, non-revolving
Indebtedness.
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“Consolidated Excess
Cash Flow Prepayment Date” has the meaning specified in Section 2.06(b)(iii).
“Consolidated First Lien
Net Leverage Ratio” means, as of any date of determination, the ratio of (a) (i) Consolidated First Lien Indebtedness as
of such date, minus (ii) Qualified Cash as of such date, to
(b) Consolidated EBITDA for the period of the four
(4) fiscal quarters most recently ended on or prior to such date.
“Consolidated First
Lien Indebtedness” means, as of any date of determination, for the Company and its Restricted Subsidiaries on a consolidated
basis, Consolidated Funded Indebtedness that is secured by a Lien on Collateral that is not contractually subordinated to the Liens on
such Collateral securing the Obligations. For the avoidance of doubt, Consolidated First Lien Indebtedness shall not include Attributable
Indebtedness under any capital lease other than those that are secured by the Collateral on an equal priority or senior basis with the
Liens on the Collateral securing the Obligations.
“Consolidated Funded
Indebtedness” means, as of any date of determination, for the Company and its Restricted Subsidiaries on a consolidated basis,
the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase
money Indebtedness, (c) all obligations (whether direct or contingent) arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations in respect of the deferred
purchase price of property or services (other than trade accounts payable in the ordinary course of business), (e) all Attributable
Indebtedness (including Attributable Indebtedness in respect of capital leases), (f) without duplication, all Guarantees with respect
to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the
Company or any Restricted Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above
of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the
Company or a Restricted Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to
the Company or such Restricted Subsidiary.
“Consolidated
Interest Charges” means, for any period, for the Company and its Restricted Subsidiaries on a consolidated basis, the sum
of (a) all interest, premium payments, debt discount, fees, charges and related expenses of the Company and its Restricted
Subsidiaries in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with the Applicable Accounting Standard as in effect for such
period, and (b) the portion of rent expense of the Company and its Restricted Subsidiaries with respect to such period under
capital leases that is treated as interest in accordance with the Applicable Accounting Standard as in effect for such period.
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“Consolidated Interest Coverage
Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of the four
(4) prior fiscal quarters ending on such date to
(b) Consolidated Interest Charges for such period.
“Consolidated Net
Income” means, for any period, for the Company and its Restricted Subsidiaries on a consolidated basis, the net earnings of
the Company and its Restricted Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period.
“Consolidated Secured
Indebtedness” means, as of any date of determination, for the Company and its Restricted Subsidiaries on a consolidated basis,
all Consolidated Funded Indebtedness secured by Liens.
“Consolidated Secured
Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Secured Indebtedness as of such date
to (b) Consolidated EBITDA for the period of the four (4) fiscal quarters most recently ended.
“Consolidated Secured Net
Leverage Ratio” means, as of any date of determination, the ratio of (a) (i) Consolidated Secured Indebtedness as of
such date, minus (ii) Qualified Cash as of such date, to
(b) Consolidated EBITDA for the period of the four
(4) fiscal quarters most recently ended.
“Consolidated Total
Assets” means, as of any date of determination with respect to the Company and its Restricted Subsidiaries on a consolidated
basis, the book value of total assets, as determined in accordance with the Applicable Accounting Standard as in effect on such date and
set forth on the most recent financial statements delivered to the Administrative Agent pursuant to Section 6.01(a) or
(b).
“Consolidated Total
Net Leverage Ratio” means, as of any date of determination, the ratio of (a) the total of (i) Consolidated Funded
Indebtedness as of such date, minus (ii) Qualified Cash as of such date, not to exceed $250,000,000, to (b) Consolidated
EBITDA for the period of the four (4) fiscal quarters most recently ended on or prior to such date.
“Consolidated Working
Capital” means, as of any date of determination, Consolidated Current Assets as of such date minus Consolidated Current
Liabilities as of such date; provided that there shall be excluded (a) the effect of reclassification during such period between
current assets and long term assets and current liabilities and long term liabilities (with a corresponding restatement of the prior period
to give effect to such reclassification), (b) the effect of any Disposition of any Person, facility or line of business or acquisition
of any Person, facility or line of business during such period, (c) the effect of any fluctuations in the amount of accrued and contingent
obligations under any Swap Contract, and (d) the application of purchase or recapitalization accounting.
“Contractual Obligation”
means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its property is bound.
“Control”
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. Without limiting the generality of the foregoing, a Person shall
be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote fifteen percent
(15%) or more of the securities having ordinary voting power for the election of directors, managing general partners or the
equivalent.
18
“Controlled Account”
means each deposit account and securities account that is subject to an account control agreement and/or blocked account agreement in
form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer.
“Corporate Rating”
means, as of any date of determination, the public corporate family rating of the Company as determined by Moody’s, the public corporate
credit rating of the Company as determined by S&P and/or the public corporate credit rating of the Company as determined by Fitch,
as applicable; provided, that: (a) if the Company has all three (3) Corporate Ratings, (i) if such Corporate Ratings
issued by the foregoing rating agencies fall within the same pricing level set forth in the definition of “Applicable Rate”
(each, a “Pricing Level”), then the Pricing Level for such Corporate Ratings shall apply, (ii) if two (2) of
the three (3) respective Corporate Ratings issued by the foregoing rating agencies fall within the same Pricing Level, then the Pricing
Level for such Corporate Ratings shall apply, and (iii) if the respective Corporate Ratings issued by the foregoing rating agencies
all differ, then the Pricing Level for the middle level of such Corporate Ratings shall apply; (b) if the Company has only two (2) Corporate
Ratings, (i) if such Corporate Ratings issued by the two (2) rating agencies fall within the same Pricing Level, then the Pricing
Level for such Corporate Ratings shall apply, (ii) if such Corporate Ratings issued by the two (2) rating agencies differ by
one (1) Pricing Level, then the Pricing Level for the higher of such Corporate Ratings shall apply, and (iii) if such Corporate
Ratings issued by the two (2) rating agencies differ by more than one (1) Pricing Level, then the Pricing Level that is one
(1) level lower than the Pricing Level of the higher Corporate Rating shall apply; (c) if the Company has only one Corporate
Rating, then the Pricing Level for such Corporate Rating shall apply; and (d) if the Company does not have any Corporate Rating,
Pricing Level 5 shall apply. For purposes of this definition, it is understood and agreed that the Corporate Rating for Pricing Level
1 is the highest Corporate Rating and the Corporate Rating for Pricing Level 5 is the lowest Corporate Rating. The Corporate Rating in
effect at any date is the Corporate Rating that is in effect at the close of business on such date.
“CORRA”
means the Canadian Overnight Repo Rate Average administered and published by the Bank of Canada (or any successor administrator); provided,
that, if CORRA shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Corresponding Debt” has the meaning specified
in Section 10.24(a).
“Covered Entity” has the meaning specified
in Section 10.23(b).
“Credit Extension”
means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Credit Parties” means, collectively,
each Lender, each L/C Issuer and the Swing Line Lender.
“Daily Simple SOFR”
means, with respect to any applicable determination date, SOFR published on such date on the Federal Reserve Bank of New York’s
website (or any successor source).
“Daily Simple SOFR Loan” means a Loan
that bears interest based on Daily Simple SOFR.
19
“Debt Issuance”
means the issuance by any Loan Party of any Indebtedness other than Indebtedness permitted under Section 7.03.
“Debtor Relief Laws”
means the Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-Up
and Restructuring Act (Canada), the Insolvency Act 1986 of the United Kingdom, the Singapore IRDA and all other liquidation, winding-up,
administration, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, examinership, rescue process, or similar debtor relief Laws of the United States, Canada, England and Wales, or other
applicable jurisdictions (including any applicable foreign jurisdiction) from time to time in effect and affecting the rights of creditors
generally.
“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) with respect to any Obligation for which a rate is specified, a rate per annum equal to two percent (2%) in excess of the
rate otherwise applicable thereto and (b) with respect to any Obligation for which a rate is not specified or available, a rate per
annum equal to the Base Rate plus the Applicable Rate for Revolving Loans that are Base Rate Loans plus two percent (2%),
in each case, to the fullest extent permitted by applicable Law.
“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 (2) Business Days of the date such Loans were required to be funded hereunder unless such
Lender notifies the Administrative Agent and the Company in writing that such failure is the result of such Lender’s
determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable
default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any
L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of
its participation in Letters of Credit or Swing Line Loans) within two (2) Business Days of the date when due, (b) has
notified the Company, the Administrative Agent, any L/C Issuer or the Swing Line Lender in writing that it does not intend to comply
with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement
relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s
determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be
specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three
(3) Business Days after written request by the Administrative Agent or the Company, to confirm in writing to the Administrative
Agent and the Company that it will comply with its prospective funding obligations hereunder (provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the
Administrative Agent and the Company), or (d) has, or has a direct or indirect parent company that has, (i) become the
subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or
assets, including the Federal Deposit Insurance Corporation, the Canada Deposit Insurance Corporation or any other state, provincial
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 (unless such Lender is an agent for
all purposes of His Majesty in right of Canada) from the enforcement of judgments or writs of attachment on its assets (except for
EDC) or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements
made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses
(a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent
manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.18(b)) as of the date
established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the
Administrative Agent to the Company, the L/C Issuers, the Swing Line Lender and each other Lender promptly following such
determination.
20
“Designated Borrower” has the
meaning specified in the introductory paragraph hereto.
“Designated Borrower Notice” has the meaning
specified in Section 2.15.
“Designated Borrower
Request and Assumption Agreement” has the meaning specified in Section 2.15.
“Designated Borrower Requirements” has
the meaning specified in Section 2.15.
“Designated Jurisdiction”
means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
“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 Reserves” has the meaning
specified in the definition of “Net Cash Proceeds”.
“Disqualified Equity
Interests” means Equity Interests of any Person that (a) by their terms or upon the occurrence of any event (other than
as a result of a change of control, asset sale event or casualty or condemnation event so long as any rights of the holders thereof upon
the occurrence of a change of control, asset sale event or casualty or condemnation event shall be subject to the prior repayment in full
of all Loans and all other Obligations (other than contingent indemnification obligations for which no claim has been asserted)) (i) are
required to be redeemed or are redeemable at the option of the holder on or prior to the day that is ninety-one (91) days after the later
of (A) the latest Maturity Date and (B) the maturity date for any Incremental Term Loan (determined as of the date of issuance
of such Equity Interests), for consideration other than Qualified Equity Interests of such Person or (ii) are convertible at the
option of the holder into Disqualified Equity Interests of such Person or exchangeable for Indebtedness or (b) require (or permit
at the option of the holder) the payment of any dividend, interest, sinking fund or other similar payment (other than the accrual of such
obligations) on or prior to the day that is ninety-one (91) days after the later of (A) the latest Maturity Date and (B) the
maturity date for any Incremental Term Loan (determined as of the date of issuance of such Equity Interests) (other than payments made
solely in Qualified Equity Interests of such Person).
“Disqualified
Institution” means, on any date, (a) any Person set forth on Schedule 10.06 and (b) any other Person that
is a competitor of the Company or any of its Subsidiaries, which Person has been designated by the Company as a “Disqualified
Institution” by written notice to the Administrative Agent and the Lenders (by posting such notice to the Platform) not less
than two (2) Business Days prior to such date; provided, that, the foregoing shall not apply to retroactively
disqualify any Person that has previously acquired an assignment in the Loans or Commitments under this Agreement to the extent that
any such Person was not a Disqualified Institution at the time of the applicable assignment; provided, further, that
“Disqualified Institutions” shall exclude any Person that the Company has designated as no longer being a
“Disqualified Institution” by written notice delivered to the Administrative Agent and the Lenders from time to
time.
21
“Dollar” and “$” mean lawful
money of the United States.
“Dollar Equivalent”
means, for any amount, at the time of determination thereof, (a) if such amount is expressed in Dollars, such amount, (b) if
such amount is expressed in an Alternative Currency, the equivalent of such amount in Dollars determined by using the rate of exchange
for the purchase of Dollars with the Alternative Currency last provided (either by publication or otherwise provided to the Administrative
Agent or the applicable L/C Issuer, as applicable) by the applicable Bloomberg source (or such other publicly available source for displaying
exchange rates) on the date that is two (2) Business Days immediately preceding the date of determination (or if such service ceases
to be available or ceases to provide such rate of exchange, the equivalent of such amount in Dollars as determined by the Administrative
Agent or the applicable L/C Issuer, as applicable, using any reasonable method of determination it deems appropriate in its sole discretion)
and (c) if such amount is denominated in any other currency, the equivalent of such amount in Dollars as determined by the Administrative
Agent or the applicable L/C Issuer, as applicable, using any reasonable method of determination it deems appropriate in its sole discretion.
Any determination by the Administrative Agent or the applicable L/C Issuer pursuant to clauses (b) or (c) above shall
be conclusive absent manifest error.
“Domestic U.S. Security
Agreement” means the Amended and Restated U.S. Security and Pledge Agreement, dated as of the Closing Date, executed in favor
of the Administrative Agent, for the benefit of the Secured Parties, by the Initial U.S. Borrower and the other Loan Parties that are
U.S. Subsidiaries (other than any Specified U.S. Obligors).
“DQ List” has the meaning specified in
Section 10.06(h)(iv).
“EDC” means
Export Development Canada, a corporation established by an Act of the Parliament of Canada.
“EEA Financial Institution”
means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of
an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in
clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision
with its parent.
“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”
means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Record”
and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may
be amended from time to time.
22
“Eligible Assignee”
means any Person that meets the requirements to be an assignee under Section 10.06(b) (subject to such consents, if any,
as may be required under Section 10.06(b)(iii)). For the avoidance of doubt, any Disqualified Institution is subject to Section 10.06(h).
“Eligible Currency”
means any lawful currency other than Dollars that is readily available, freely transferable and convertible into Dollars in the international
interbank market available to the Revolving Lenders in such market and as to which a Dollar Equivalent may be readily calculated. If,
after the designation by the Revolving Lenders or the applicable L/C Issuer, as applicable, of any currency as an Alternative Currency,
any change in currency controls or exchange regulations or any change in the national or international financial, political or economic
conditions are imposed in the country in which such currency is issued, result in, in the reasonable opinion of the Administrative Agent
or the Required Revolving Lenders (in the case of any Revolving Loans to be denominated in an Alternative Currency) or the applicable
L/C Issuer (in the case of any Letter of Credit to be denominated in an Alternative Currency), (a) such currency no longer being
readily available, freely transferable and convertible into Dollars, (b) a Dollar Equivalent is no longer readily calculable with
respect to such currency, (c) providing such currency is impracticable for the Revolving Lenders or (d) no longer a currency
in which the Required Revolving Lenders are willing to make such Credit Extensions (each of clauses (a), (b), (c),
and (d) a “Disqualifying Event”), then the Administrative Agent shall promptly notify the Revolving Lenders,
the L/C Issuers and the Company, and such country’s currency shall no longer be an Alternative Currency until such time as the Disqualifying
Event(s) no longer exist. Within five (5) Business Days after receipt of such notice from the Administrative Agent, the applicable
Borrowers shall repay all Revolving Loans denominated in such currency to which the Disqualifying Event applies or convert such Revolving
Loans into the Dollar Equivalent of Loans in Dollars, subject to the other terms contained herein.
“English Guarantor” has the meaning specified
in Section 11.11.
“Environmental Laws”
means any and all federal, state, provincial, territorial, local, foreign and other applicable statutes, laws, regulations, ordinances,
technical standards, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment 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 Company, any other Loan Party or any of their respective 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.
“Environmental Permit”
means any permit, approval, identification number, license or other authorization required under any Environmental Law.
“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.
23
“ERISA” means the Employee Retirement
Income Security Act of 1974.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control with the Company 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 Company 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 Company or any ERISA Affiliate from a Multiemployer Plan; (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, 431 and 432 of the Code or Sections 303, 304 and 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 Company or any ERISA Affiliate.
“ESG” has the meaning specified in Section 2.21.
“ESG Amendment” has the meaning specified
in Section 2.21.
“ESG Pricing Provisions” has the meaning
specified in Section 2.21.
“EU Bail-In Legislation
Schedule” means the document described as such and published by the Loan Market Association (or any successor person), as in
effect from time to time.
“EU Insolvency Regulation”
means Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).
“EURIBOR” has the meaning specified in
the definition of “Alternative Currency Term Rate”.
“Euro” and “€” mean the
single currency of the Participating Member States.
“Event of Default” has the meaning specified
in Section 8.01.
“Excluded Accounts”
means (a) any account used solely by any Loan Party to disburse payroll and benefits, (b) any fiduciary accounts used solely
to administer benefit plans or pay withholding taxes and (c) any account used solely to hold funds in trust for third parties.
24
“Excluded
Property” means, with respect to any Loan Party, (a) any owned or leased real property, (b) any Excluded
Account, (c) any IP Rights for which a perfected Lien thereon is not effected either by filing of a UCC or a PPSA financing
statement or by appropriate evidence of such Lien being filed in the United States Copyright Office, the United States Patent and
Trademark Office, the Canadian Intellectual Property Office or a comparable filing office in a foreign jurisdiction, (d) solely
to the extent such Loan Party is a U.S. Subsidiary or is organized under any jurisdiction of Canada, any personal property (other
than personal property described in clause (c) above and Equity Interests of any Subsidiary to the extent required to be
pledged to secure the Obligations pursuant to Section 6.15) for which the attachment or perfection of a Lien thereon is
not governed by the UCC or the PPSA, (e) the Equity Interests of any Subsidiary to the extent not required to be pledged to
secure the Obligations pursuant to Section 6.15, (f) any property which, subject to the terms of Section 7.09,
is subject to a Lien of the type described in Section 7.01(i) pursuant to documents which prohibit such Loan Party
from granting any other Liens in such property, (g) any lease, license, contract, property rights or agreement to which such
Loan Party is a party or any of its respective rights or interests therein if and for so long as the grant of a security interest
therein shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of
such Loan Party therein or (ii) a breach or termination pursuant to the terms of, or a default under, any such lease, license,
contract, property rights or agreement or under applicable law (other than to the extent that any such term would be rendered
ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC or pursuant to the PPSA (or any successor provision or
provisions) of any relevant jurisdiction or any other applicable law); provided that to the extent permitted under local law,
a security interest shall attach immediately (and such lease, license, contract, property rights or agreement shall immediately
cease to be Excluded Property) at such time as the condition causing such abandonment, invalidation or unenforceability shall be
remedied, and, to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or
agreement (and such portion of such lease, license, contract, property rights or agreement shall immediately cease to be Excluded
Property) that does not result in any of the consequences specified in the foregoing clauses (i) or (ii); provided, further,
that in any jurisdiction where a security interest in favor of the Administrative Agent shall not immediately attach when such
lease, license, contract, property rights or agreement shall cease to constitute Excluded Property, upon the written request of the
Administrative Agent, such Loan Party shall use commercially reasonable efforts to cause a security interest in favor of the
Administrative Agent to attach thereto, (h) at any time the Specified Receivables Purchase Agreement or any Permitted
Securitization Transaction is outstanding, (i) any Securitized Asset that is subject thereto, (ii) the Equity Interests of
the Special Purpose Subsidiary for such Permitted Securitization Transaction and (iii) any deposit accounts established
pursuant to such Specified Receivables Purchase Agreement or Permitted Securitization Transaction for collection of the relevant
Securitized Assets, (i) at any time any Permitted Receivables Transaction is outstanding, the accounts receivable subject
thereto, (j) consumer goods (as defined under the PPSA) and the last day of the term of any lease or agreement for lease of
real property, (k) inventory sold pursuant to any Permitted Inventory Financing Arrangement upon consummation of such sale, and
(l) other assets for which the cost or other negative consequence of obtaining or perfecting a security interest is excessive
in relation to the value to the Lenders of obtaining or perfecting such security interests, as determined by the Administrative
Agent in its sole discretion; provided, however, that the security interest granted under the Loan Documents in favor
of the Administrative Agent shall attach immediately to any asset of such Loan Party at such time as such asset ceases to meet any
of the criteria for “Excluded Property” described in any of the foregoing clauses (a) through (l),
including, without limitation, if the terms of the agreement(s) relating thereto that prohibit or limit the pledge or granting
of security interest therein, that would give rise to a violation or invalidation of the agreement(s) with respect thereto,
(i) are no longer in effect or (ii) have been waived by the other party to any such lease, license or other agreement.
“Excluded
Subsidiary” means (a) any Unrestricted Subsidiary, (b) any Immaterial Subsidiary, (c) any Subsidiary
organized or formed under the Laws of (i) Romania, (ii) the People’s Republic of China, (iii) the Kingdom of
Thailand or (iv) Malaysia, (d) any Special Purpose Subsidiary, (e) any Subsidiary that is prohibited by applicable
Law or Contractual Obligation existing on the Closing Date (or, with respect to any Subsidiary acquired by the Company or a
Restricted Subsidiary (and so long as such Contractual Obligation was not incurred in contemplation of such acquisition), on the
date such Subsidiary is so acquired) from providing the Guaranty, or if such Guaranty would require the consent, approval, license
or authorization of any Governmental Authority or other third party, unless such consent, approval, license or authorization has
been received and (f) any other Subsidiary with respect to which the Administrative Agent and the Company reasonably agree that
the burden or cost of providing the Guaranty shall outweigh the benefits to be obtained by the Lenders therefrom. Notwithstanding
anything to the contrary in this Agreement, no Borrower (including, for the avoidance of doubt, any Designated Borrower) shall
constitute an Excluded Subsidiary.
25
“Excluded Swap Obligation”
means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Loan Party
of, or the grant under a Loan Document by such Loan Party of a security interest to secure, such Swap Obligation (or any Guarantee thereof)
is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Loan
Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange
Act (determined after giving effect to any applicable “keepwell” provisions in any Loan Document and any and all guarantees
of such Loan Party’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Loan Party, or grant by such Loan
Party of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement
governing more than one Swap Contract, such exclusion shall apply to only the portion of such Swap Obligation that is attributable to
Swap Contracts for which such Guaranty or security interest is or becomes illegal.
“Excluded Taxes”
means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to
a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in
each case, (i) imposed as a result of such Recipient being organized under the Laws of, or having its principal office or, in the
case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that
are Other Connection Taxes, (b) in the case of a Lender, withholding Taxes imposed on amounts payable to or for the account of such
Lender with respect to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date on which (i) such Lender
acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under Section 10.13)
or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii),
3.01(a)(iii) or 3.01(c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately
before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable
to such Recipient’s failure to comply with Section 3.01(e), (d) any U.S. federal withholding Taxes imposed pursuant
to FATCA and (e) any Canadian federal withholding taxes imposed on a Recipient as a result of such Recipient (i) not dealing
at arm’s length (within the meaning of the ITA) with a Canadian Borrower at the time of such payment, or (ii) being a “specified
shareholder” (as defined in subsection 18(5) of the ITA) of a Canadian Borrower or not dealing at arm’s length (for the
purposes of the ITA) with a “specified shareholder” (as defined in subsection 18(5) of the ITA) of a Canadian Borrower
(other than where the non-arm’s length relationship arises, or where the Recipient is a “specified shareholder”, or
does not deal at arm’s length with a “specified shareholder”, as a result of such Recipient having become a party to,
received or perfected a security interest under or received or enforced any rights under, a Loan Document).
“Existing Credit Agreement” has the meaning
specified in the introductory paragraphs hereto.
“Existing Letters of Credit” means those
certain letters of credit set forth on Schedule 1.01.
26
“Exiting Lender”
means any lender party to the Existing Credit Agreement that is not a Lender under this Agreement.
“Facility Termination
Date” means the date as of which all of the following shall have occurred: (a) the Aggregate Commitments have terminated,
(b) all Obligations have been paid in full (other than contingent indemnification obligations for which no claim or demand has yet
been made), and (c) all Letters of Credit have terminated or expired (other than Letters of Credit as to which other arrangements
with respect thereto reasonably satisfactory to the Administrative Agent and each applicable L/C Issuer shall have been made).
“FASB ASC”
means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable
and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements
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.
“FCDO” has the meaning specified in the
definition of “Sanctions”.
“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 (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day,
(b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of
1/100 of one percent) charged to Bank of America on such day on such transactions as determined by the Administrative Agent and
(c) if the Federal Funds Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Fee Letters”
means, collectively, (a) the letter agreement, dated June 3, 2024, among the Canadian Borrowers, the Initial U.S. Borrower,
Bank of America (through itself or one of its designated affiliates or branch offices), and BofA Securities, Inc. (or any of its
designated affiliates), and (b) the letter agreement, dated June 3, 2024, among the Canadian Borrowers, the Initial U.S. Borrower,
Bank of America (through itself or one of its designated affiliates or branch offices), BofA Securities, Inc. (or any of its designated
affiliates), Canadian Imperial Bank of Commerce and CIBC World Markets Corp. (or any of its or their designated affiliates), MUFG Bank, Ltd.,
Canada Branch (or any of its designated affiliates), Crédit Agricole Corporate and Investment Bank (Canada Branch) (or any of its
designated affiliates), Royal Bank of Canada (or any of its designated affiliates), Citigroup Global Markets Inc. (along with and on behalf
of Citibank, N.A., Citicorp USA, Inc., Citicorp North America, Inc., and/or any of its other designated affiliates), BNP Paribas
Securities Corp. (or any of its designated affiliates), HSBC Securities (USA) Inc. (or any of its designated affiliates) and TD Securities
(USA) LLC (or any of its designated affiliates).
“Fitch” means, Fitch Ratings Inc., and
any successor thereto.
27
“Fixed Incremental
Amount” has the meaning specified in the definition of “Incremental Amount”.
“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 each L/C Issuer, such Defaulting Lender’s Applicable Percentage
of the Outstanding Amount of all outstanding L/C Obligations relating to Letters of Credit issued by such L/C Issuer 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 in accordance with the terms hereof.
“Fund”
means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its activities.
“GAAP”
means generally accepted accounting principles in the United States set forth from time to time 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 agencies with similar functions of comparable stature and authority within the accounting profession) including
the FASB ASC, that are applicable to the circumstances as of the date of determination, consistently applied and subject to Section 1.03.
“GAAP Adjusted Annual
Financial Statements” means the consolidated balance sheet of the Company and its Subsidiaries for the most recent fiscal year
ended prior to the Accounting Change Date for which audited financial statements are available, and the related consolidated statements
of operations, comprehensive income, changes in equity and cash flows for such fiscal year of the Company and its Subsidiaries, including
the notes thereto, as prepared in accordance with GAAP.
“GAAP Adjusted Financial
Statements” means, for any applicable fiscal year or fiscal quarter of the Company ending more than one day prior to the Accounting
Change Date, financial statements prepared by the Company in accordance with GAAP, which financial statements are prepared in conformity
with, and in substantially the same manner as, the GAAP Adjusted Annual Financial Statements or the GAAP Adjusted Interim Financial Statements,
as applicable.
“GAAP Adjusted Interim
Financial Statements” means, for any fiscal quarter of the Company, the consolidated balance sheet of the Company and its Subsidiaries
for the corresponding fiscal quarter of the fiscal year most recently ended prior to the Accounting Change Date, and the related consolidated
statements of operations, comprehensive income, changes in equity and cash flows for such fiscal quarter of the Company and its Subsidiaries
and for the portion of the Company’s fiscal year then ended, including the notes thereto, as prepared in accordance with GAAP.
“Governmental Authority”
means the government of the United States, Canada or any other nation, or of any political subdivision thereof, whether state, provincial,
territorial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including, without limitation,
the Financial Conduct Authority, the Prudential Regulation Authority and any supra-national bodies such as the European Union or the European
Central Bank).
28
“Gross Assets”
means, with respect to the Company or any Restricted Subsidiary, the sum of the book value of the gross assets of the Company or such
Restricted Subsidiary and each of its Restricted Subsidiaries (other than Restricted Subsidiaries that are Excluded Subsidiaries under
clause (a), (c), (d) or (e) of the definition thereof) in each case determined on a consolidated
basis as of the last day of the most recently ended fiscal quarter of the Company for which financial statements have been delivered pursuant
to Section 6.01.
“Guarantee”
means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having
the economic effect of guaranteeing any Indebtedness 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 Indebtedness or other obligation, (ii) to purchase
or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation
of the payment or performance of such Indebtedness 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 Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness 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 Indebtedness or other obligation of any
other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien); provided, however, with respect to any Guarantee described in
clause (b) above, to the extent the Indebtedness or obligation secured thereby has not been assumed by the guarantor or is
nonrecourse to the guarantor, the amount of such Guarantee shall be deemed to be an amount equal to the lesser of the fair market value
of the assets subject to such Lien or the Indebtedness or obligation secured thereby. 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.
“Guarantors” means, collectively, (a) each
U.S. Guarantor and (b) each Non-U.S. Guarantor.
“Guaranty”
means, collectively, the Guarantee made by the Guarantors under Article XI in favor of the Secured Parties, together with
each other guaranty delivered pursuant to Section 6.14.
“Hazardous Materials”
means all explosive or radioactive substances or wastes and all hazardous or toxic substances 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.
“Hedge
Bank” means any Person in its capacity as a party to a Swap Contract that, (a) at the time it enters
into a Swap Contract not prohibited under Article VII, is a Lender or an Affiliate of a Lender, or (b) at the time
it (or its Affiliate) becomes a Lender, is a party to a Swap Contract not prohibited under Article VII, in each case, in
its capacity as a party to such Swap Contract (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to
be a Lender); provided, in the case of a Secured Swap Contract with a Person who is no longer a Lender (or Affiliate of a
Lender), such Person shall be considered a Hedge Bank only through the stated termination date (without extension or renewal) of
such Secured Swap Contract and provided, further, that for any of the foregoing to be included as a “Secured
Swap Contract” on any date of determination by the Administrative Agent, the applicable Hedge Bank (other than the
Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the
Administrative Agent prior to such date of determination.
29
“Honor Date” has the meaning specified
in Section 2.03(c).
“Hypothecary Representative” has the meaning
specified in Section 9.01.
“IFRS”
means the International Financial Reporting Standards as issued by the International Accounting Standards Board in effect in Canada from
time to time.
“Immaterial Subsidiary”
means, as of any date of determination, any Restricted Subsidiary that is not a Guarantor and that has Gross Assets of less than $150,000,000;
provided that if the aggregate amount of the Gross Assets of all Immaterial Subsidiaries that are not Guarantors exceeds twenty
percent (20%) of the aggregate amount of the Gross Assets of the Company, the Company shall designate by written notice to the Administrative
Agent one or more of such Immaterial Subsidiaries as no longer constituting Immaterial Subsidiaries (which Immaterial Subsidiaries shall
be determined by the Company in its sole discretion) such that after such designation the aggregate amount of the Gross Assets of all
Immaterial Subsidiaries that are not Guarantors does not exceed twenty percent (20%) of the aggregate amount of the Gross Assets of the
Company.
“Impacted Loans” has the meaning specified
in Section 3.03.
“Incremental Amount”: as of any date of
determination, an amount equal to:
(a) the
greater of (i) $700,000,000, and (ii) an amount equal to 10.0% of Consolidated Total Assets determined as of the date of incurrence
of the applicable Incremental Facility (such amount, the “Fixed Incremental Amount”; it being understood that, for
the avoidance of doubt, the amount of any Incremental Facility incurred in reliance on the Fixed Incremental Amount shall reduce the Fixed
Incremental Amount), plus
(b) the
amount of any voluntary prepayments, repurchases, redemptions, payments made pursuant to Section 10.13 or other retirements
of the Term A Loans, any other Indebtedness secured by the Collateral on a pari passu basis with the Term A Loans, or any Incremental
Facility (and, in the case of any such Incremental Facility in the form of a revolving facility, to the extent accompanied by a permanent
reduction of the relevant commitment), but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings
of new Loans hereunder and (B) prepayments with the proceeds of substantially concurrent incurrences of other long term Indebtedness
(other than borrowings under the Revolving Facility or any other revolving credit facility, in each case without a substantially concurrent
permanent commitment reduction) (this clause (b), the “Voluntary Prepayment Amount”), plus
(c) an
unlimited amount (this clause (c), the “Incremental Ratio Amount”), so long as, after giving effect to the relevant
Incremental Facility on a Pro Forma Basis (tested solely on the date of establishment of such Incremental Facility and not any time thereafter,
and assuming that such Incremental Facility is drawn in full, and without “netting” the cash proceeds of such Incremental
Facility or any other simultaneous incurrence of Indebtedness on the consolidated balance sheet of the Company):
(i) in
the case of an Incremental Facility secured on a pari passu basis with the Obligations, subject to the provisions of Section 1.10
in the case of any Incremental Term Facility used to finance a Limited Condition Acquisition, the Consolidated First Lien Net
Leverage Ratio does not exceed 3.00:1.00 (the amount calculated pursuant to this clause (c)(i), the “Incremental
Pari Passu Ratio Basket”);
30
(ii) in
the case of an Incremental Facility secured by the Collateral on a basis junior to the Liens securing the Obligations, subject to the
provisions of Section 1.10 in the case of any Incremental Term Facility used to finance a Limited Condition Acquisition, the
Consolidated Secured Net Leverage Ratio does not exceed 3.25:1.00 (the amount calculated pursuant to this clause (c)(ii), the “Incremental
Junior Ratio Basket”), and
(iii) in
the case of an Incremental Facility that is unsecured, subject to the provisions of Section 1.10 in the case of any Incremental
Term Facility used to finance a Limited Condition Acquisition, the Consolidated Total Net Leverage Ratio (without giving effect to the
cap on cash netting in the definition thereof) does not exceed 4.00:1.00 (the amount calculated pursuant to this clause (c)(iii),
the “Incremental Unsecured Ratio Basket”);
it being understood and agreed that Incremental
Facilities may be incurred pursuant to this clause (c) prior to utilization of the Fixed Incremental Amount and the Voluntary
Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any Incremental Revolving Increase constituting
a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness;
provided that any Incremental
Facility may be incurred under either the Fixed Incremental Amount or the Incremental Ratio Amount as selected by the Company in its sole
discretion and if any Incremental Facility is intended to be incurred in part under both the Fixed Incremental Amount and the Incremental
Ratio Amount, then the permissibility of the portion of such Incremental Facility to be incurred under the Incremental Ratio Amount shall
first be determined without giving effect to the portion of such Incremental Facility incurred under the Fixed Incremental Amount, but
giving full Pro Forma Effect to the use of proceeds of the entire amount of such Incremental Facility; provided, further,
that, any portion of any Incremental Facility incurred other than under the Incremental Ratio Amount may be reclassified at any time,
as the Company may elect from time to time, as incurred under the Incremental Ratio Amount if the Company meets the applicable ratio under
the Incremental Ratio Amount at such time on a Pro Forma Basis at any time subsequent to the incurrence of such Incremental Facility (or
would have met such ratio, in which case, such reclassification shall be deemed to have automatically occurred if not elected by the Company).
“Incremental Facilities” has the meaning
specified in Section 2.16.
“Incremental Facility Amendment” has the
meaning specified in Section 2.16.
“Incremental Facility Commitment” has
the meaning specified in Section 2.16(g).
“Incremental Junior
Ratio Basket” has the meaning specified in the definition of “Incremental Amount”.
“Incremental Pari
Passu Ratio Basket” has the meaning specified in the definition of “Incremental Amount”.
31
“Incremental Ratio
Amount” has the meaning specified in the definition of “Incremental Amount”.
“Incremental Revolving Increase” has the
meaning specified in Section 2.16. “Incremental Term Facility” has the meaning specified in Section 2.16.
“Incremental Term
Loan” means a term loan made by a Lender to a Borrower under an Incremental Term Facility.
“Incremental Tranche
A Facility Commitment” means an Incremental Facility Commitment in respect of an Incremental Tranche A Term Facility.
“Incremental Tranche A Term Facility”
has the meaning specified in Section 2.16(h).
“Incremental Tranche
A Term Loan” means a term loan made by a Lender to the Borrower under an Incremental Tranche A Term Facility.
“Incremental Tranche B Term Facility”
has the meaning specified in Section 2.16(h).
“Incremental Tranche
B Term Facility Commitment” means an Incremental Facility Commitment in respect of an Incremental Tranche B Term Facility.
“Incremental Tranche
B Term Loan” means a term loan made by a Lender to the Borrower under an Incremental Tranche B Term Facility.
“Incremental Unsecured
Ratio Basket” has the meaning specified in the definition of “Incremental Amount”.
“Indebtedness”
means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities
in accordance with the Applicable Accounting Standard as in effect at such time:
(a) all
obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements
or other similar instruments;
(b) all
direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances,
bank guaranties, surety bonds and similar instruments;
(c) net
obligations of such Person under any Swap Contract;
(d) all
obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary
course of business);
(e) indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person
or is limited in recourse;
(f) all
Attributable Indebtedness of such Person;
32
(g) all
obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such
Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; and
(h) all
Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the
Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself
a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is
expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be
the Swap Termination Value thereof as of such date. The amount of any Indebtedness described in clause (e), if such Indebtedness
has not been assumed or is limited in recourse to the property subject to such Lien, shall be deemed to be an amount equal to the lesser
of the fair market value of such property or the Indebtedness secured thereby. For the avoidance of doubt, the Indebtedness of any Person
shall exclude any customer deposits received by such Person.
“Indemnified Taxes”
means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of
any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitees” has the meaning specified
in Section 10.04(b).
“Information” has the meaning specified
in Section 10.07.
“Initial U.S. Borrower” has the meaning
specified in the introductory paragraph hereto.
“Inside Maturity
Indebtedness” means Indebtedness in an aggregate principal amount not to exceed, at the time of incurrence of any such Indebtedness
(and measured after giving effect to the incurrence thereof), the sum of (a) the greater of (x) $700,000,000 and (y) 10.0%
of Consolidated Total Assets determined as of the date of incurrence of any such Indebtedness, plus (b) the amount of any
voluntary or mandatory prepayments of principal of any Indebtedness previously incurred as Inside Maturity Indebtedness.
“Interest Payment
Date” means, (a) [reserved]; (b) as to any Term SOFR Loan, the last day of each Interest Period applicable to such
Loan and the Maturity Date applicable thereto; provided, however, that if any Interest Period for a Term SOFR Loan exceeds
three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also
be Interest Payment Dates; (c) as to any Base Rate Loan, Canadian Prime Rate Loan or Swing Line Loan, the last Business Day of each
March, June, September and December and the Maturity Date applicable thereto under which such Loan was made (with Swing Line
Loans being deemed made under the Revolving Facility for purposes of this definition); (d) as to any Daily Simple SOFR Loan, the
last Business Day of each March, June, September and December of each year and the Maturity Date applicable thereto; (e) as
to any Alternative Currency Daily Rate Loan, the last Business Day of each March, June, September and December of each year
and the Maturity Date applicable thereto; and (f) as to any Alternative Currency Term Rate Loan, the last day of each Interest Period
applicable to such Loan and the Maturity Date applicable thereto; provided, however, that if any Interest Period for an
Alternative Currency Term Rate Loan exceeds three (3) months, the respective dates that fall every three (3) months after the
beginning of such Interest Period shall also be Interest Payment Dates.
33
“Interest Period”
means as to each Term SOFR Loan or Alternative Currency Term Rate Loan, the period commencing on the date such Term SOFR Loan or Alternative
Currency Term Rate Loan, as applicable, is disbursed or converted to or continued as a Term SOFR Loan or Alternative Currency Term Rate
Loan, as applicable, and ending on the date one (1), three (3) or (other than in the case of Alternative Currency Term Rate Loans
based on Term CORRA) six (6) months thereafter (in each case, subject to availability for the interest rate applicable to the relevant
currency), as selected by the appropriate Borrower in its Loan Notice; provided that:
(a) any
Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any
Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such
Interest Period; and
(c) no
Interest Period shall extend beyond the Maturity Date applicable to such Loan.
“Interim Financial Statements” has the
meaning specified in Section 4.01(a)(xv).
“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 Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption
of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership
or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person, or (c) an Acquisition. 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.
“IP Rights” has the meaning specified
in Section 5.20.
“Ireland” means Ireland (exclusive of
Northern Ireland).
“Irish Companies Act” means the Companies
Act of 2014 of Ireland.
“Irish Loan Party” means a Loan Party
incorporated under the laws of Ireland.
“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 applicable L/C Issuer and the Company (or any Subsidiary) or in favor of the applicable L/C Issuer and relating to such Letter
of Credit.
“ITA” means the Income Tax Act (Canada).
34
“Joinder Agreement”
means a joinder agreement substantially in the form of Exhibit J or such other form as may be approved by the Administrative
Agent, in either case, executed and delivered in accordance with the provisions of Section 6.14.
“Judgment Currency” has the meaning specified
in Section 10.20.
“Junior Payment” means any principal payment
on any Additional Indebtedness.
“Junior Secured Indebtedness”
means Indebtedness of the Company or any other Loan Party that by its terms is secured on a junior basis to the Obligations in a manner
and to an extent reasonably acceptable to the Administrative Agent (including, without limitation, if reasonably required by the Administrative
Agent, the entry into of an intercreditor and/or subordination agreement generally acceptable to the Administrative Agent).
“Korean Guarantor” has the meaning specified
in Section 11.09.
“KPI Metrics” has the meaning specified
in Section 2.21.
“KPIs” has the meaning specified in Section 2.21.
“Laws”
means, collectively, all international, foreign, federal, state, provincial, territorial 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.
“L/C Advance”
means, with respect to each Revolving Lender, such Revolving Lender’s funding of its participation in any L/C Borrowing in accordance
with its Applicable Percentage. All L/C Advances shall be denominated in Dollars.
“L/C Borrowing”
means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Borrowing. All L/C Borrowings shall be denominated in Dollars.
“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 each of (a) Bank of America, (b) Canadian Imperial Bank of Commerce (in the case of each of the foregoing clauses (a) and
(b), through itself or through one of its respective designated Affiliates or branch officers), (c) any Lender appointed by
the Company (with the consent of the Administrative Agent and such Lender) as an L/C Issuer by written notice to the Administrative Agent
as a replacement for any L/C Issuer who, at the time of such notice, is a Defaulting Lender and (d) any successor issuer of Letters
of Credit hereunder, in each case in its capacity as 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 1.09.
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.
35
“LCA Election” has the meaning specified
in Section 1.10.
“LCA Test Date” has the meaning specified
in Section 1.10.
“Lender”
means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that becomes a “Lender”
in accordance with this Agreement and their successors and assigns and, as the context requires, includes the Swing Line Lender and each
L/C Issuer.
“Lending Office”
means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or
such other office or offices as a Lender may from time to time notify the Company and the Administrative Agent which office may include
any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires
each reference to a Lender shall include its applicable Lending Office.
“Letter of Credit”
means any letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder and shall
include the Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby letter of credit. Letters
of Credit may be issued in Dollars or in an Alternative Currency.
“Letter of Credit
Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to
time in use by the applicable L/C Issuer.
“Letter of Credit
Expiration Date” means the day that is seven (7) days prior to the Maturity Date then in effect for Letters of Credit (or,
if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Fee” has the meaning
specified in Section 2.03(h).
“Letter of Credit
Sublimit” means an amount equal to the lesser of (a) $300,000,000 and (b) the Aggregate Revolving Commitments; provided
that as of the Second Amendment Effective Date, with respect to each of Bank of America and Canadian Imperial Bank of Commerce, each in
its capacity as an L/C Issuer, such L/C Issuer shall not be obligated to issue Letters of Credit in an amount greater than the amount
set forth as its “Letter of Credit Commitment” on Schedule 2.01. The Letter of Credit Sublimit is part of, and not
in addition to, the Aggregate Revolving Commitments.
“Leverage Increase Period” has the meaning
specified in Section 7.11(b).
“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), hypothec, 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).
“Limited
Condition Acquisition” means any Permitted Acquisition by one or more of the Loan Parties or their Subsidiaries
(a) that is not prohibited hereunder, (b) is financed in whole or in part with a substantially concurrent incurrence of
Incremental Term Facilities or Additional Indebtedness and (c) whose consummation is not conditioned on the availability of, or
on obtaining, third-party financing and which is consummated no more than one hundred eighty (180) days after the applicable Limited
Condition Acquisition Agreement date is executed and effective.
36
“Limited Condition Acquisition Agreement”
has the meaning specified in Section 1.10.
“Loan”
means an extension of credit by a Lender to a Borrower under Article II in the form of a Revolving Loan, Swing Line Loan or
Term Loan.
“Loan Documents”
means, collectively, this Agreement, the Collateral Documents, each Designated Borrower Request and Assumption Agreement, each Note, each
Issuer Document, each Joinder Agreement, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of
Section 2.17, the Fee Letters, each Incremental Facility Amendment, each Loan Modification Agreement, each ESG Amendment,
each intercreditor agreement or subordination agreement contemplated hereby and entered into by the Administrative Agent and each other
agreement designated by its terms as a Loan Document (but specifically excluding any Secured Cash Management Agreement and any Secured
Swap Contract).
“Loan Modification Agreement” has the
meaning specified in Section 10.01(c).
“Loan Modification Offer” has the meaning
specified in Section 10.01(c).
“Loan Notice”
means a notice of (a) a Borrowing of Loans (other than Swing Line Loans), (b) a conversion of Loans from one Type to another
Type, or (c) a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans pursuant to Section 2.02(a), which
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 applicable Borrower.
“Loan Parties” means, collectively, each
Borrower and each Guarantor.
“Malaysian Loan Party” has the meaning
specified in Section 5.25(f).
“Mandatory Cost”
means any amount incurred periodically by any Lender during the term of this Agreement which constitutes fees, costs or charges imposed
on lenders generally in the jurisdiction in which such Lender is domiciled, subject to regulation or has its Lending Office by any Governmental
Authority which are applicable to the Credit Extensions and such Lender’s Lending Office.
“Master Agreement” has the meaning specified
in the definition of “Swap Contract”.
“Material Adverse
Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, assets, properties,
liabilities (actual or contingent) or condition (financial or otherwise) of the Company and its Restricted Subsidiaries taken as a whole;
(b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Documents, or of the
ability of the Loan Parties, taken as a whole, to perform their obligations under the Loan Documents; or (c) a material adverse effect
upon the legality, validity, binding effect or enforceability against the Loan Parties, taken as a whole, of the Loan Documents.
“Material Restricted
Subsidiary” means any Restricted Subsidiary that is not an Immaterial Subsidiary.
37
“Maturity Date”
means (a) as to the Term A Loan, Revolving Loans, Swing Line Loans and Letters of Credit (and the related L/C Obligations), April 27,
2031 and (b) as to the Term B Loan, June 20, 2031; provided, that, with respect to each of the foregoing clause
(a) and clause (b), if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“MFN Protection” has the meaning specified
in Section 2.16(j).
“Minimum Collateral
Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances provided
to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to one hundred three percent (103%)
of the Fronting Exposure of each applicable L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (b) with
respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.17(a)(i),
(a)(ii) or (a)(iii), an amount equal to one hundred three percent (103%) of the Outstanding Amount of all L/C Obligations,
and (c) otherwise, an amount determined by the Administrative Agent and the applicable L/C Issuer in their sole discretion.
“Moody’s” means Moody’s Investors
Service, Inc. and any successor thereto.
“Multiemployer Plan”
means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Company 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 Company 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 Cash
Proceeds” means the aggregate cash or Cash Equivalents proceeds received by the Company or any Restricted Subsidiary in
respect of any Disposition, Debt Issuance or Recovery Event, net of (a) costs and direct expenses incurred in connection
therewith (including, without limitation, legal, accounting and investment banking fees, costs, underwriting discounts, and sales
commissions), (b) Taxes paid or reasonably estimated to be payable as a result thereof or in connection therewith (including
pursuant to any Tax sharing arrangement), (c) in the case of any Disposition or any Recovery Event, the amount necessary to
retire any Indebtedness secured by a Lien on the related property to the extent such Indebtedness is actually retired and such
payment is not prohibited under Section 7.14 and (d) in connection with any Disposition, a reasonable reserve
determined by the Company or such Subsidiary in its reasonable business judgment for (i) any reasonably anticipated adjustment
in sale price of such asset or assets and (ii) reasonably anticipated liabilities associated with such asset or assets and
retained by the Company or any Restricted Subsidiary after such Disposition, including pension and other post-employment benefit
liabilities and liabilities related to environmental matters or with respect to any indemnification payments (fixed or contingent)
or purchase price adjustments attributable to seller’s indemnities and representations and warranties to purchaser in respect
of such Disposition undertaken by the Company or such Subsidiary in connection with such Disposition (the “Disposition
Reserves”); it being understood that “Net Cash Proceeds” shall include, without limitation, (a) any cash
or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received by the Company or any
Restricted Subsidiary in any Disposition, Debt Issuance or Recovery Event and (b) any Disposition Reserves that are no longer
necessary with respect to the applicable Disposition; provided, that (x) any amount of the purchase price in connection
with any Disposition that is held in escrow shall not be deemed to be received by the Company or any of its Restricted Subsidiaries
until such amount is paid to the Company or such Subsidiary out of escrow and (y) (i) Net Cash Proceeds received by the
Company or any wholly owned Restricted Subsidiary of the Company shall equal one hundred percent (100%) of the cash proceeds
received by the Company or such Restricted Subsidiary pursuant to the foregoing definition and (ii) Net Cash Proceeds received
by any Restricted Subsidiary other than a wholly owned Subsidiary of the Company shall equal a percentage of the cash proceeds
received by such Subsidiary pursuant to the foregoing definition equal to the percentage of such Restricted Subsidiary’s total
outstanding Equity Interests owned by the Company and its Restricted Subsidiaries.
38
“New Lender”
means each Person identified as a “Lender” on the signature pages hereto that is not a lender party to the Existing Credit
Agreement.
“Non-Consenting Lender”
means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected
Lenders in accordance with the terms of Section 10.01 and (b) has been approved by the Required Lenders or, if such consent,
waiver or amendment requires the approval of all affected Lenders (and not all Lenders), affected Lenders having affected Loans and Commitments
representing more than fifty percent (50%) of all affected Loans and Commitments; provided, that, the Loans and Commitments of
any Defaulting Lender that is an affected Lender shall be disregarded in determining affected Lenders having affected Loans and Commitments
representing more than fifty percent (50%) of all affected Loans and Commitments at any time.
“Non-Defaulting Lender”
means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Extension Notice Date” has the meaning
specified in Section 2.03(b)(iii).
“Non-Reinstatement Deadline” has the meaning
specified in Section 2.03(b)(iv).
“Non-U.S. Borrower” has the meaning specified
in the introductory paragraph hereto.
“Non-U.S. Guarantors”
means, collectively, (a) the Company and each Subsidiary identified as a “Non-U.S. Guarantor” on the signature pages hereto,
(b) each other Subsidiary that joins as a Non-U.S. Guarantor pursuant to Section 6.14 or otherwise, (c) with respect
to Additional Secured Obligations owing by the Company or any Non-U.S. Subsidiary under the Guaranty, each Non-U.S. Borrower, (d) with
respect to Additional Secured Obligations owing by any U.S. Subsidiary under the Guaranty, each Non-U.S. Borrower that is not a Specified
Non-U.S. Borrower and (e) the successors and permitted assigns of each of the foregoing to the extent that any such successor or
permitted assign is a Non-U.S. Subsidiary or Specified Subsidiary, and, in the case of clause (d), not a CFC or CFC Holdco.
“Non-U.S. Lender”
means, with respect to any Borrower, (a) if such Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if such
Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which such Borrower
is resident for tax purposes. For purposes of this definition, the United States, each state thereof and the District of Columbia shall
be deemed to constitute a single jurisdiction.
“Non-U.S.
Obligations” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Non-U.S.
Obligor arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, (b) all debts, liabilities,
obligations, covenants and duties of any Non-U.S. Obligor or any Non-U.S. Subsidiary arising under any Secured Swap Contract and
(c) all debts, liabilities, obligations, covenants and duties of any Non-U.S. Obligor or any Non-U.S. Subsidiary arising under
any Secured Cash Management Agreement, in the case of each of clauses (a), (b) and (c), whether direct or
indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising
and including all costs and expenses incurred in connection with the enforcement and collection of the foregoing and interest and
fees that accrue after the commencement by or against any Non-U.S. Obligor or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding; provided, however, that the “Non-U.S. Obligations” of a Non-U.S. Obligor shall
exclude any Excluded Swap Obligations with respect to such Non-U.S. Obligor.
39
“Non-U.S. Obligor”
means any Loan Party that is organized or incorporated under the laws of a jurisdiction other than the United States, a state thereof
or the District of Columbia.
“Non-U.S. Subsidiary”
means any Subsidiary that is organized or incorporated under the laws of a jurisdiction other than the United States, a state thereof
or the District of Columbia.
“Note” has the meaning specified in Section 2.12.
“Notice of Loan Prepayment”
means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit C 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 applicable Borrower.
“Obligations”
means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document
or otherwise with respect to any Loan or Letter of Credit, (b) all debts, liabilities, obligations, covenants and duties of any Loan
Party or any Subsidiary arising under any Secured Swap Contract and (c) all debts, liabilities, obligations, covenants and duties
of any Loan Party or any Subsidiary arising under any Secured Cash Management Agreement, in the case of each of clauses (a), (b) and
(c), whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing
or hereafter arising and including all costs and expenses incurred in connection with the enforcement and collection of the foregoing
and interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under
any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims
in such proceeding; provided, however, that the “Obligations” of a Loan Party shall exclude any Excluded Swap
Obligations with respect to such Loan Party.
“OFAC”
means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Organization Documents”
means, (a) with respect to any corporation or, to the extent organized or incorporated under the laws of a foreign jurisdiction,
any company, the certificate and/or articles of incorporation and the bylaws, memorandum of association, articles of association and/or
memorandum and articles of association (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction
(and in particular with respect to any corporation incorporated in Spain, the bylaws (“estatutos sociales”) currently
in force of the company evidenced by means of an updated excerpt (“certificación literal completa”) issued
by the relevant Mercantile Registry or the copies of the public deed(s) containing the updated and in force version of such bylaws));
(b) with respect to any limited liability company, the certificate and/or articles of formation or organization and operating agreement
or limited liability company 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 and/or articles of formation or organization of such
entity.
40
“Original Closing Date” means June 27,
2018.
“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 that arise from any payment made
under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest
under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to
an assignment (other than an assignment made pursuant to Section 3.06).
“Outbound Investment
Rules” means the regulations administered and enforced, together with any related public guidance issued, by the United States
Treasury Department under U.S. Executive Order 14105 of August 9, 2023, or any similar law or regulation; as of the Second Amendment
Effective Date, and as codified at 31 C.F.R. § 850.101 et seq.
“Outstanding Amount”
means (a) with respect to Loans on any date, the Dollar Equivalent of the aggregate outstanding principal amount thereof after giving
effect to any borrowings and prepayments or repayments thereof occurring on such date; and (b) with respect to any L/C Obligations
on any date, the Dollar Equivalent of the aggregate outstanding 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 of Unreimbursed Amounts or any reductions in the maximum amount available for drawing under Letters
of Credit taking effect on such date.
“Overnight Rate”
means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent, the applicable L/C Issuer, or the Swing Line Lender, as the case may be, in accordance
with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency,
an overnight rate determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, in accordance with banking
industry rules on interbank compensation.
“Parallel Debt” has the meaning specified
in Section 10.24(a).
“Pari Passu Indebtedness”
means Indebtedness of the Company or any Loan Party that by its terms is secured on a pari passu basis to the Obligations in a
manner and to an extent reasonably acceptable to the Administrative Agent (including, without limitation, the entry into of an intercreditor
and/or subordination agreement generally acceptable to the Administrative Agent).
“Participant” has the meaning specified
in Section 10.06(d).
“Participant Register” has the meaning
specified in Section 10.06(d).
41
“Participating Member
State” means any member state of the European Union that adopts or has adopted the Euro, and in each case continues to adopt,
as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“PATRIOT Act” has the meaning specified
in Section 10.19.
“PBGC” means the Pension Benefit Guaranty
Corporation.
“Pension Act” means the Pension Protection
Act of 2006.
“Pension Funding
Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment
thereof) to Pension Plans and set forth in Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan”
means any employee pension benefit plan (including a Multiple Employer Plan but excluding a Multiemployer Plan) that is maintained or
is contributed to by the Company and 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.
“Permitted Acquisition”
means an Acquisition by the Company or any Restricted Subsidiary; provided that (a) no Default or Event of Default has occurred
and is continuing or would result from such Acquisition, (b) the property acquired (or the property of the Person acquired) in such
Acquisition is used or useful in the same or a similar line of business as the Company and its Subsidiaries were engaged in on the Closing
Date (or any reasonable extensions or expansions thereof), (c) in the case of an Acquisition of the Equity Interests of another Person,
the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition, (d) subject
to the terms of Section 1.10, the representations and warranties made by the Loan Parties contained in Article V
or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith,
shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects)
on and as of the date of such Acquisition (after giving effect thereto), except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if qualified by materiality
or reference to Material Adverse Effect, in all respects) as of such earlier date, (e) [reserved], and (f) with respect to any
such Acquisition the aggregate consideration for which exceeds $300,000,000, the Company shall have delivered to the Administrative Agent
a Pro Forma Compliance Certificate demonstrating that, after giving effect to such Acquisition on a Pro Forma Basis, the Loan Parties
would be in Pro Forma Compliance.
“Permitted Amendments” has the meaning
specified in Section 10.01(c).
“Permitted Inventory
Financing Arrangement” means the sale of any inventory by the Company or any of its Restricted Subsidiaries; provided,
that (a) the consideration received by the Company or such Restricted Subsidiary in connection with such sale shall be cash, (b) such
sale shall not involve the creation of any recourse obligation in respect thereof on the part of the Company or any of its Restricted
Subsidiaries (other than with respect to customary representations and warranties, purchase or repurchase obligations for breaches of
representations and warranties, performance guaranties and indemnity obligations and other similar undertakings in each case that are
customary for similar inventory financing arrangements), (c) to the extent requested in writing by the Administrative Agent, any
proceeds of such inventory received by the Company or such Restricted Subsidiary after the sale of such inventory shall be promptly paid
over to a segregated deposit account not holding other assets of the Company or its Restricted Subsidiaries, to the extent not promptly
paid over to (including via netting against purchase price payable by) the purchaser of such inventory, (d) any discount given by
the Company or such Restricted Subsidiary on the purchase price of such inventory shall be customary in light of the then prevailing
market conditions, and (e) the aggregate book value of inventory sold during any period of four (4) consecutive fiscal quarters
of the Company shall not exceed $250,000,000.
42
“Permitted Investment” means an Investment
permitted under Section 7.02.
“Permitted Liens”
means, at any time, Liens in respect of property of the Company or any Restricted Subsidiary permitted to exist at such time pursuant
to the terms of Section 7.01.
“Permitted Receivables Transaction” has
the meaning specified in Section 7.05(x).
“Permitted Repricing Amendment” has the
meaning specified in Section 10.01(b).
“Permitted Securitization
Transaction” means any Securitization Transaction permitted under clause (i) of Section 7.03(j).
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
“Plan”
means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees
of the Company or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate
or any such Plan to which the Company or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of
ERISA, any ERISA Affiliate is required to contribute on behalf of any of its employees and which is subject to ERISA.
“Plan of Reorganization” has the meaning
specified in Section 10.06(h)(iii).
“Platform” has the meaning specified in
Section 6.02.
“Post-Closing Compliance Date” has the
meaning specified in Section 6.19(a).
“PPSA”
means the Personal Property Security Act (Ontario); provided that, if perfection or the effect of perfection or non-perfection
or the priority of any security interest in any Collateral is governed by the Personal Property Security Act as in effect in a Canadian
jurisdiction other than the Province of Ontario, or the Civil Code of Quebec, “PPSA” means the Personal Property Security
Act as in effect from time to time in such other jurisdiction or the Civil Code of Quebec, as applicable, for purposes of the provisions
hereof relating to such perfection, effect of perfection or non-perfection or priority.
“Pricing Level” has the meaning specified
in the definition of “Corporate Rating”.
43
“Pro Forma
Basis” and “Pro Forma Effect” means, in respect of a Specified Transaction, that such Specified
Transaction and the following transactions in connection therewith (to the extent applicable) shall be deemed to have occurred as of
the first day of the applicable four (4) fiscal quarter period for the applicable covenant or requirement:
(a) (i) with respect to any Disposition, income statement and cash flow statement items (whether positive or negative)
attributable to the Person or property disposed of shall be excluded, (ii) with respect to any Investment, income statement and
cash flow statement items (whether positive or negative) attributable to the Person or property acquired shall be included to the
extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such
income statement items for the Company and its Restricted Subsidiaries in accordance with the Applicable Accounting Standard as in
effect on such date or in accordance with any defined terms set forth in Section 1.01, and (B) such items are
supported by financial statements or other information reasonably satisfactory to the Administrative Agent, and (iii) with
respect to any Acquisition by the Company or a Restricted Subsidiary of (A) a corporation which becomes a new Restricted
Subsidiary or (B) any other entity or a group of assets or an operation; provided that such operation comprises a going
concern which becomes a division or part of the business of the Company or a Restricted Subsidiary (each, an
“operation”), Consolidated EBITDA will include the Target EBITDA of the newly acquired Restricted Subsidiary or
operation for its immediately preceding four (4) fiscal quarters completed prior to such acquisition as determined using the
following method: (x) if such newly acquired Restricted Subsidiary or operation was, immediately prior to such acquisition,
accounted for on a stand-alone basis, each of the components of Consolidated EBITDA applied mutatis mutandis as if such
definition and its component definitions referred to such newly acquired Restricted Subsidiary or operation (“Target
EBITDA”) shall only be included in the calculation of Consolidated EBITDA for such newly acquired Restricted Subsidiary or
operation, as the case may be, if Target EBITDA can be determined by reference to historical financial statements reasonably
satisfactory to the Administrative Agent and (y) if such newly acquired Restricted Subsidiary or operation: (A) was not,
immediately prior to such acquisition, accounted for on a stand-alone basis; or (B) was immediately prior to such acquisition,
accounted for on a stand-alone basis but, in the determination of the Administrative Agent acting reasonably, the business of such
newly acquired Restricted Subsidiary or operation will not be conducted by the Company or its Restricted Subsidiary, as the case may
be, in substantially the same form or the same manner as conducted by the seller immediately prior to such acquisition, then subject
to the satisfaction of the Administrative Agent and the Required Lenders with the method of determination thereof acting reasonably,
Target EBITDA for such newly acquired Restricted Subsidiary or operation will be determined having regard to historical financial
results together with, and having regard to, contractual arrangements and any other changes made or proposed to be made by the
Company or its Restricted Subsidiary, as the case may be, to the business of such newly acquired Restricted Subsidiary or operation;
(b) any retirement or prepayment of Indebtedness; (c) any incurrence or assumption of Indebtedness by the Company or any
of its Restricted Subsidiaries (and if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied
rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in
effect with respect to such Indebtedness as at the relevant date of determination); and (d) with respect to the designation of
any Unrestricted Subsidiary as an Restricted Subsidiary, (i) income statement and cash flow statement items (whether positive
or negative) attributable to such Subsidiary shall be included to the extent relating to any period prior to the date of such
designation to the extent such items are not otherwise included in such income statement and cash flow statement items for the
Company and its Restricted Subsidiaries in accordance with any defined terms set forth in Section 1.01 and
(ii) Indebtedness of such Subsidiary shall be included and deemed to have been incurred as of the first day of the applicable
period. Notwithstanding anything to the contrary set forth in this Agreement, for purposes of determining compliance on a Pro Forma
Basis, or for purposes of giving Pro Forma Effect to any Specified Transaction, it is understood and agreed that, from and after the
date on which financial statements are delivered (or required to be delivered) by the Company pursuant to Section 6.01(b) for
the first fiscal quarter of the Company ending after the Accounting Change Date, to the extent all or any portion of any relevant
four (4) fiscal quarter period includes financial statements that were prepared in accordance with IFRS, any determination of
compliance on a Pro Forma Basis and/or any calculation giving Pro Forma Effect shall, in each case, be determined and/or calculated,
as applicable, using GAAP Adjusted Financial Statements for any such fiscal quarter or fiscal year.
44
“Pro Forma Compliance”
means, with respect to any transaction, that after giving effect to such transaction on a Pro Forma Basis, the Loan Parties would be in
compliance with the financial covenants set forth in Section 7.11 recomputed as of the end of such period.
“Pro Forma Compliance
Certificate” means a certificate of a Responsible Officer of the Company containing reasonably detailed calculations of the
financial covenants set forth in Section 7.11 recomputed as of the end of the applicable period after giving effect to the
applicable transaction on a Pro Forma Basis.
“PTE” means
a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified
in Section 6.02.
“Qualified Acquisition”
means a Permitted Acquisition with aggregate consideration of at least $150,000,000, or any series of related Permitted Acquisitions in
any twelve (12) month period with aggregate consideration for all such Permitted Acquisitions of at least $150,000,000; provided
that for any such Permitted Acquisition or series of related Permitted Acquisitions, a Responsible Officer of the Company shall have delivered
to the Administrative Agent, prior to the consummation of such Permitted Acquisition or the last in such series of related Permitted Acquisitions,
as applicable, a certificate (any such certificate, a “Qualified Acquisition Notice”) (a) certifying that such
Permitted Acquisition or series of Permitted Acquisitions qualifies as a Qualified Acquisition and (b) notifying the Administrative
Agent that the Company has elected to treat such Permitted Acquisition or series of related Acquisitions as a Qualified Acquisition.
“Qualified Acquisition
Notice” has the meaning specified in the definition of “Qualified Acquisition”.
“Qualified Acquisition
Pro Forma Determination” means, to the extent required in connection with determining the permissibility of any Permitted Acquisition
or series of related Permitted Acquisitions that the Loan Parties elect to treat as a Qualified Acquisition, the determination of whether
the Loan Parties are in Pro Forma Compliance.
“Qualified Cash”
means, as of any date of determination, for the Company and its Restricted Subsidiaries, the sum of, without duplication, (a) unrestricted
cash held in a Controlled Account over which the Administrative Agent has a perfected Lien to secure the Obligations, plus (b) unrestricted
cash held in an account otherwise subject to a perfected Lien of the Administrative Agent to secure the Obligations, plus (c) unrestricted
Cash Equivalents of the Company and its Restricted Subsidiaries, in each case, as of such date.
“Qualified ECP Guarantor”
means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract
participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant”
at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualified Equity
Interests” means all Equity Interests of a Person other than Disqualified Equity Interests.
“Recipient”
means the Administrative Agent, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation
of any Loan Party hereunder.
45
“Recovery Event”
means any casualty loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of the Company
or other Loan Party.
“Register” has the meaning specified in
Section 10.06(c).
“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees,
administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Related Specified
Parties” means, with respect to any Person, (a) any Affiliate of such Person, (b) the respective directors, officers
or employees of such Person or any of its Affiliates and (c) the respective agents of such Person or any of its Affiliates, in the
case of this clause (c), acting on behalf of, or at the express instructions of, such Person or Affiliate; provided that
each such reference to an Affiliate, director, officer or employee shall refer to an Affiliate, director, officer or employee involved
in the execution or delivery of this Agreement or any other Loan Document, 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.
“Relevant Rate”
means with respect to any Credit Extension denominated in (a) Sterling, SONIA, (b) Euros, EURIBOR, (c) Canadian Dollars,
the Term CORRA Rate, and (d) any other Alternative Currency, the applicable Alternative Currency Daily Rate or Alternative Currency
Term Rate, as applicable (in each case, or any Alternative Currency Successor Rate established in connection therewith).
“Removal Effective Date” has the meaning
specified in Section 9.06(b).
“Reportable Event”
means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been
waived.
“Repricing Event”
means (a) any optional or mandatory prepayment of the Term B Loan, in whole or in part, with the proceeds of, or conversion of any
portion of the Term B Loan into, any new or replacement tranche of Indebtedness bearing interest with an All-In-Yield less than the All-In-Yield
of such portion of the Term B Loan (as such All-In-Yields are reasonably determined by the Administrative Agent consistent with generally
accepted financial practices) and (b) any amendment to any portion of this Agreement with respect to the Term B Loan which, directly
or indirectly, reduces the All-In-Yield applicable to the Term B Loan (except with respect to any Lender that consents to such amendment),
in each case of clauses (a) and (b), solely to the extent that the primary purpose of such replacement or amendment, as determined
by the Administrative Agent, is to reduce the All-In-Yield on such Term Loan. Notwithstanding the foregoing, “Repricing Event”
shall exclude, in any such case, (x) any refinancing or repricing of the Term B Loan or amendment to this Agreement in connection
with any Change of Control transaction, and (y) any “transformational” acquisition by the Company or any Restricted Subsidiary.
“Request for Credit
Extension” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Loan Notice, (b) with respect
to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required
Lenders” means, at any time, Lenders having Total Credit Exposures representing more than fifty percent (50%) of the Total
Credit Exposures of all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required
Lenders at any time; provided that, the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such
Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by
the Lender that is the Swing Line Lender or an L/C Issuer, as the case may be, in making such determination.
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“Required Pro Rata
Facilities Lenders” means, at any time, Lenders holding in the aggregate more than fifty percent (50%) of the sum of (a) the
aggregate Revolving Credit Exposures of all the Lenders at such time, plus (b) the outstanding aggregate principal amount
of the Term A Loan, plus (c) the unfunded Incremental Tranche A Facility Commitments at such time, plus (d) the
outstanding Incremental Tranche A Term Loans. The Revolving Credit Exposure, Term A Loan, Incremental Tranche A Facility Commitments
and Incremental Tranche A Term Loans of any Defaulting Lender shall be disregarded in determining Required Pro Rata Facilities Lenders
at any time; provided that the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting
Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that
is the Swing Line Lender or applicable L/C Issuer, as the case may be, in making such determination.
“Required Revolving
Lenders” means, at any time, Lenders having Revolving Credit Exposures representing more than fifty percent (50%) of the Revolving
Credit Exposures of all Lenders having
Revolving Credit Exposures. The Revolving Credit
Exposure of any Defaulting Lender shall be disregarded in determining Required Revolving Lenders at any time; provided that the amount of any participation in any Swing Line
Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender
shall be deemed to be held by the Lender that is the Swing Line Lender or applicable L/C Issuer, as the case may be, in making such determination.
“Rescindable Amount” has the meaning specified
in Section 2.13(b)(ii).
“Resignation Effective Date” has the meaning
specified in Section 9.06(a).
“Resolution Authority”
means an EEA Resolution Authority, a U.K. Resolution Authority or any other body which has authority to exercise any Write-Down and Conversion
Powers.
“Responsible Officer”
means the chief executive officer, president, executive vice president, vice president, chief financial officer, treasurer, assistant
treasurer, controller or such other Person who is the highest ranking officer appointed pursuant to the relevant Organization Documents
(or, in foreign jurisdictions, substantially equivalent representatives, including a director or manager) 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
(or, in foreign jurisdictions, substantially equivalent representatives, including a director, company secretary or manager) of a Loan
Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee or equivalent representative
of the applicable Loan Party so designated by any of the foregoing officers, directors or managers 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. To the extent requested by the Administrative Agent,
each Responsible Officer will provide an incumbency certificate and appropriate authorization documentation, in form and substance reasonably
satisfactory to the Administrative Agent.
47
“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 Company or any 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 Company’s stockholders, partners or members (or the equivalent
Person thereof), including any normal-course issuer bids by the Company.
“Restricted Subsidiary” means any Subsidiary
other than an Unrestricted Subsidiary.
“Revaluation Date”
means (a) with respect to any Revolving Loan, each of the following: (i) each date of a Borrowing of an Alternative Currency
Loan or a Canadian Prime Rate Loan, (ii) each date of a continuation of an Alternative Currency Term Rate Loan or a Canadian Prime
Rate Loan pursuant to Section 2.02, (iii) with respect to any Canadian Prime Rate Loan or any Alternative Currency Daily
Rate Loan, each Interest Payment Date, and (iv) such additional dates as the Administrative Agent shall determine or the Required
Revolving Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance
or extension of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit
having the effect of increasing the amount thereof, (iii) each date of any payment by the applicable L/C Issuer under any Letter
of Credit denominated in an Alternative Currency, (iv) in the case of all Existing Letters of Credit denominated in Alternative Currencies,
the Closing Date, and (v) such additional dates as the Administrative Agent or the applicable L/C Issuer shall determine or the Required
Revolving Lenders shall require.
“Revolving Commitment”
means, as to each Lender, its obligation to (a) make Revolving Loans to the Borrowers pursuant to Section 2.01(a), (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the applicable Dollar amount set forth opposite such Lender’s name on Schedule 2.01 or in
the Assignment and Assumption or other documentation pursuant to which such Lender becomes a party hereto or in any documentation executed
by such Lender in connection with an Incremental Facility, as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement. Revolving Commitments shall include any Incremental Revolving Increase.
“Revolving Credit
Exposure” means, as to any Lender at any time, the aggregate Outstanding Amount at such time of its Revolving Loans and the
aggregate Outstanding Amount of such Lender’s participation in L/C Obligations and Swing Line Loans at such time.
“Revolving Facility” means the revolving
facility established pursuant to Section 2.01(a).
“Revolving Lender”
means, at any time, a Lender that has a Revolving Commitment, outstanding Revolving Loans or participation interests in outstanding L/C
Obligations and Swing Line Loans at such time.
“Revolving Loan” has the meaning specified
in Section 2.01(a).
“S&P”
means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc. and any successor thereto.
“Sale and Leaseback
Transaction” means, with respect to the Company or any Restricted Subsidiary, any arrangement, directly or indirectly, with
any Person whereby the Company or such Restricted Subsidiary shall sell or transfer any property used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially
the same purpose or purposes as the property being sold or transferred.
48
“Same Day Funds”
means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements
and payments in an Alternative Currency, same day or other funds as may be determined by the Administrative Agent or the applicable L/C
Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions
in the relevant Alternative Currency.
“Sanction(s)”
means any sanction administered or enforced by the United States Government (including without limitation, OFAC), the Canadian Government,
the United Nations Security Council, the European Union, the United Kingdom’s Foreign, Commonwealth and Development Office (“FCDO”)
or other relevant sanctions authority.
“SEC” means
the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Second Amendment”
means the Second Amendment to this Agreement dated as of the Second Amendment Effective Date.
“Second Amendment Effective Date” means
April 27, 2026.
“Secured Cash Management
Agreement” means any Cash Management Agreement between any Loan Party or any Subsidiary and any Cash Management Bank. For the
avoidance of doubt, a holder of Obligations in respect of Secured Cash Management Agreements shall be subject to the provisions of the
last paragraph of Section 8.03 and the provisions of Section 9.11.
“Secured Parties”
means, collectively, the Administrative Agent, the Lenders (including Designated Lenders), the L/C Issuers, the Cash Management Banks,
the Hedge Banks, the Indemnitees, each receiver and/or manager appointed under any Collateral Document and each agent, co-agent, sub-agent,
attorneys, delegate or co-trustee appointed by the Administrative Agent from time to time pursuant to Section 9.05 or any
receivers and managers and administrative receivers of the whole or any part of the Collateral.
“Secured Party Designation
Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit K.
“Secured Swap Contract”
means any Swap Contract between any Loan Party or any Subsidiary and any Hedge Bank. For the avoidance of doubt, a holder of Obligations
in respect of a Secured Swap Contract shall be subject to the provisions of the last paragraph of Section 8.03 and the provisions
of Section 9.11.
“Securitization
Transaction” means any transaction providing for the sale, securitization or other asset-backed financing of Securitized
Assets of or owing to the Company or any Restricted Subsidiary (and/or contractual rights relating thereto). The terms and
conditions of all Securitization Transactions shall be on an arm’s length basis and on commercially reasonable and customary
terms (except any interim transfer or sale to an Unrestricted Subsidiary made in the course of a Securitization Transaction which
results in a sale, securitization or other asset-backed financing by such Unrestricted Subsidiary on an arm’s length basis and
on commercially reasonable and customary terms). Except to the extent mandated under any then-existing Securitization Transaction,
no new assets may become Securitized Assets during the occurrence and continuance of a Default.
49
“Securitized Assets”
means (a) with respect to the Specified Receivables Purchase Agreement, the assets subject to sale under such agreement and (b) with
respect to any Securitization Transaction, the assets securitized under such transaction and contributed or transferred to a Special Purpose
Subsidiary pursuant thereto, including:
(i) any
Securitized Receivable;
(ii) the
interest of the Company or any Restricted Subsidiary in any goods (including returned goods), and documentation of title evidencing the
shipment or storage of any goods (including returned goods) relating to any sale by the Company or any Restricted Subsidiary giving rise
to such Securitized Receivable;
(iii) all
guarantees, indemnities, letters of credit, insurance and other agreements (including any and all contracts, understandings, instruments,
agreements, leases, invoices, notes or other writings pursuant to which such Securitized Receivable arises or which evidences such Securitized
Receivable or under which the applicable customer becomes or is obligated to make payment to the Company or any Restricted Subsidiary
in respect of such Securitized Receivable) or arrangements of whatever character from time to time supporting or securing payment of such
Securitized Receivable;
(iv) all
collections and other proceeds received and payment or application by the Company or a Restricted Subsidiary of any amounts owed in respect
of Securitized Receivables, including, without limitation, purchase price, finance charges, interests, and other similar charges which
are net proceeds of the sale or other disposition of repossessed goods or other collateral or property available to be applied thereon;
and
(v) all
proceeds of, and all amounts received or receivable under, any or all of the foregoing clauses (i) through (iv).
“Securitized Receivable”
means an account receivable arising from a sale of goods by the Company or a Restricted Subsidiary which is the subject of (a) a
Securitization Transaction or (b) the Specified Receivables Purchase Agreement.
“Security Agreements”
means, collectively, (a) the U.S. Security Agreements, (b) the Canadian Security Agreement, (c) any other pledge and/or
security agreement dated on or after the Closing Date executed in favor of the Administrative Agent, for the benefit of the Secured Parties
(or in its own name as creditor of Parallel Debt, as applicable), by any Non-U.S. Obligor and (d) solely to the extent executed and
delivered in accordance with the Existing Credit Agreement and not amended and restated or replaced (and not otherwise terminated or released)
in connection with the amendment and restatement of the Existing Credit Agreement hereunder, any other pledge and/or security agreement
dated on or after the Original Closing Date executed in favor of the Administrative Agent, for the benefit of the Secured Parties (or
in its own name as creditor of Parallel Debt, as applicable), by any U.S. Obligor or Non-U.S. Obligor and reaffirmed (including by virtue
of Section 10.25(a)(iv) (Amendment and Restatement of Existing Credit Agreement)) on the Closing Date.
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“Singapore Entity”
means a company incorporated in Singapore or a foreign company with a substantial connection to Singapore in accordance with Section 246
of the Singapore IRDA.
“Singapore IRDA”
means the Insolvency, Restructuring and Dissolution Act 2018 (No. 40 of 2018) of Singapore.
“SOFR”
means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
“Solvent”
and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value
of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, which
for this purpose shall include rights of contribution in respect of obligations for which such Person has provided a Guarantee, (b) the
present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured, which for this purpose shall include rights of contribution in respect
of obligations for which such Person has provided a Guarantee, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is
not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property
would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations
and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed
as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.
“SONIA”
means, with respect to any applicable determination date, the Sterling Overnight Index Average Reference Rate published on the fifth (5th)
Business Day preceding such date on the applicable Reuters screen page (or such other commercially available source providing such
quotations as may be designated by the Administrative Agent from time to time); provided however that if such determination date
is not a Business Day, SONIA means such rate that applied on the first Business Day immediately prior thereto.
“Spanish Civil Code”
means the Spanish Royal Decree of 24 July 1889 publishing the Spanish Common Civil Code (“Código Civil”).
“Spanish Civil Procedural
Act” means the Spanish Law 1/2000 of 7 January (“Ley de Enjuiciamiento Civil”).
“Spanish Companies
Law” means Spanish Royal Legislative Decree 1/2010, of 2 July, approving the Spanish Capital Companies Law (“Ley de
Sociedades de Capital”).
“Spanish Guarantor”
means any Guarantor incorporated or otherwise organized under the laws of Spain (or any political subdivision thereof).
“Spanish Insolvency
Law” means the Spanish Royal Legislative Decree 1/2020, of 5 May, approving the consolidated text of the Insolvency Law (“Texto
Refundido de la Ley Concursal”), as amended from time to time and in particular, without limitation, by Law 16/2022, of 5 September,
amending the consolidated text of the Insolvency Law.
51
“Spanish Public Document”
means a Spanish “documento público” of those regulated by Articles 1216 et seq of the Spanish Civil Code, being
an “escritura pública”, “póliza” or “efecto intervenido por federatario público”.
“Special Notice Currency”
means at any time an Alternative Currency, other than the currency of a country that is a member of the Organization for Economic Cooperation
and Development at such time located in North America or Europe.
“Special Purpose
Subsidiary” means, with respect to any Permitted Securitization Transaction, the special purpose Subsidiary or Affiliate for
such Permitted Securitization Transaction.
“Specified Loan Party” has the meaning
specified in Section 11.08(a).
“Specified Local
Facility” means any overdraft, working capital, letter of credit or other facility or extension of credit provided by Bank of
America or any of its Affiliates to any Non-U.S. Subsidiary.
“Specified Non-U.S. Borrower” means any
Non-U.S. Borrower that is a Specified Subsidiary.
“Specified Non-U.S. Loan Party” has the
meaning specified in Section 11.08(b).
“Specified Non-U.S. Obligor” means any
Non-U.S. Obligor that is a Specified Subsidiary.
“Specified Receivables
Purchase Agreement” means that certain Revolving Trade Receivables Purchase Agreement, dated as of March 6, 2020 (as amended
prior to the Second Amendment Effective Date), among the Company, Celestica LLC, Celestica Holdings Pte Ltd, Celestica Hong Kong Ltd.,
Celestica (Romania) S.R.L., Celestica Japan KK, Celestica Oregon LLC, Celestica Electronics (M) Sdn. Bhd., Celestica Precision Machining
Ltd., Celestica International LP, the other parties party thereto and Credit Agricole Corporate and Investment Bank, New York Branch,
and any replacement agreement thereof the terms and provisions of which are not materially more adverse, taken as a whole, to the Lenders
than those of such Revolving Trade Receivables and Purchase Agreement. For the avoidance of doubt, no amendment to increase the “Maximum
Facility Amount” set forth therein and/or to add additional “Sellers” thereunder shall be considered materially more
adverse, taken as a whole, to the Lenders.
“Specified Representations”
means the representations and warranties made in Sections 5.01(a) (solely as to the valid existence of the Loan Parties)
and (b)(ii) (as it relates to a Loan Party), Section 5.02(a), Section 5.02(b)(i) and (b)(iii) (in
each case, as it pertains to the execution, delivery and performance of the Loan Documents, and the granting of guarantees and security
interests in respect thereof), Section 5.04, Section 5.14(a) (as it pertains to the use of proceeds of any
Credit Extension hereunder), Section 5.14(b), Section 5.19 (after giving effect to the transactions contemplated
hereunder to be consummated on the Closing Date, including the initial Credit Extensions hereunder), Section 5.22, Section 5.23
and Section 5.24.
“Specified Subsidiary” means any Subsidiary
that is a CFC or a CFC Holdco.
“Specified Transaction”
means any Acquisition, any Disposition, any Investment, any incurrence of Indebtedness or any other event that by the terms of the Loan
Documents requires compliance on a Pro Forma Basis with a test or covenant, calculation as to Pro Forma Effect with respect to a financial
definition, test or covenant or requires such financial definition, test or covenant to be calculated on a Pro Forma Basis.
52
“Specified U.S. Obligor” means any U.S.
Obligor that is a Specified Subsidiary.
“Specified U.S. Security
Agreement” means the Amended and Restated Specified U.S. Security and Pledge Agreement, dated as of the Closing Date, executed
in favor of the Administrative Agent, for the benefit of the Secured Parties, by the Loan Parties that are Specified U.S. Obligors.
“SPT” has the meaning specified in Section 2.21.
“Sterling” and “£” mean
the lawful currency of the United Kingdom.
“Subordinated Indebtedness”
means Indebtedness of the Company or any Restricted Subsidiary that by its terms is subordinated to the Obligations in a manner and to
an extent reasonably acceptable to the Administrative Agent (including, without limitation, the entry into of an intercreditor and/or
subordination agreement generally acceptable to the Administrative Agent).
“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability company, exempted 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, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to
a Subsidiary or Subsidiaries of the Company.
“Successor Rate” has the meaning specified
in Section 3.07.
“Sustainability Coordinator
Resignation Effective Date” has the meaning specified in Section 10.27.
“Sustainability Coordinators”
means, collectively, (a) as of the Closing Date, each of BofA Securities, Canadian Imperial Bank of Commerce (or any of its designated
affiliates), and Crédit Agricole Corporate and Investment Bank (Canada Branch) (or any of its designated affiliates) and (b) each
other Lender (or Affiliate of a Lender) that is appointed as a successor sustainability coordinator pursuant to Section 10.27.
“Sustainability Linked
Loan Principles” means the Sustainability Linked Loan Principles (as published from time to time by the Loan Market Association,
Asia Pacific Loan Market Association and Loan Syndications & Trading Association).
“Swap Contract”
means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps
or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any
and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.
53
“Swap Obligation”
means with respect to any Loan Party any obligation to pay or perform under any agreement, contract or transaction that constitutes a
“swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swap Termination
Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based
upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may
include a Lender or any Affiliate of a Lender).
“SWIFT” has the meaning specified in Section 2.03(f).
“Swing Line Borrowing” means a borrowing
of a Swing Line Loan pursuant to Section 2.05.
“Swing Line Lender”
means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“Swing Line Loan” has the meaning specified
in Section 2.05(a).
“Swing Line Loan
Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.05(b), which shall be substantially in the
form of Exhibit B or such other form as approved by the Administrative Agent (including any form on an electronic platform
or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible
Officer of the Company.
“Swing Line Sublimit”
means an amount equal to the lesser of (a) $100,000,000 and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
“Synthetic Lease
Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of
such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without
regard to accounting treatment).
“T2” means
the real time gross settlement system operated by the Eurosystem, or any successor system.
“TARGET Day” means any day on which T2
is open for the settlement of payments in Euro.
“Taxes”
means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees
or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term A Loan” has the meaning specified
in Section 2.01.
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“Term A Loan Commitment”
means, as to each Lender, its obligation to make its portion of the Term A Loan to the Company on the Second Amendment Effective Date
pursuant to Section 2.01(c), in the principal amount set forth opposite such Lender’s name on Schedule 2.01 as
in effect on the Second Amendment Effective Date. The aggregate principal amount of the Term A Loan Commitments of all of the Lenders
as in effect on the Second Amendment Effective Date is TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000).
“Term B Loan” has the meaning specified
in Section 2.01.
“Term B Loan Commitment”
means, as to each Lender, its obligation to make its portion of the Term B Loan to the Company on the Closing Date pursuant to Section 2.01(b),
in the principal amount set forth opposite such Lender’s name on Schedule 2.01 as in effect on the Closing Date. The aggregate
principal amount of the Term B Loan Commitments of all of the Lenders as in effect on the Closing Date is FIVE HUNDRED MILLION DOLLARS
($500,000,000).
“Term CORRA Adjustment”
means 0.29547% (29.547 basis points) for an Interest Period of one-month’s duration and 0.32138% (32.138 basis points) for an Interest
Period of three-months’ duration.
“Term CORRA Rate”
has the meaning specified in the definition of “Alternative Currency Term Rate”.
“Term Facility” means the Term B Loan,
the Term A Loan and any Incremental Term Facilities.
“Term Loans” means the Term B Loan, the
Term A Loan and any Incremental Term Loans.
“Term SOFR” means:
(a) for
any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two (2) U.S. Government
Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided
that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on
the first (1st) U.S. Government Securities Business Day immediately prior thereto; and
(b) for
any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate two (2) U.S.
Government Securities Business Days prior to such date with a term of one month commencing that day; provided that if the rate
is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first (1st)
U.S. Government Securities Business Day immediately prior thereto;
provided that if Term SOFR determined in
accordance with either of the foregoing provisions (a) or (b) of this definition would otherwise be less than zero, Term SOFR
shall be deemed zero for purposes of this Agreement.
“Term SOFR Loan”
means a Loan that is denominated in Dollars and that bears interest at a rate based on clause (a) of the definition of “Term
SOFR”.
“Term SOFR Replacement Date” has the meaning
specified in Section 3.07(c).
“Term SOFR Scheduled Unavailability Date”
has the meaning specified in Section 3.07(c).
55
“Term SOFR Screen
Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Administrative
Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations
as may be designated by the Administrative Agent from time to time).
“Term SOFR Successor Rate” has the meaning
specified in Section 3.07(c).
“Threshold Amount” means $150,000,000.
“Toronto Property”
means the real property previously owned by Celestica International Inc. located at 844 Don Mills Road, 1150 Eglinton Avenue East and
1155 Eglinton Avenue East, in Toronto, Canada.
“Total Credit Exposure”
means, as to any Lender at any time, the unused Commitments of such Lender at such time, the outstanding Loans of such Lender at such
time and such Lender’s participations in L/C Obligations and Swing Line Loans at such time.
“Total Revolving
Outstandings” means the aggregate Outstanding Amount of all Revolving Loans, all Swing Line Loans and all L/C Obligations.
“Trade Date” has the meaning specified
in Section 10.06(h)(i).
“Type”
means, with respect to a Loan, its character as a Base Rate Loan, a Term SOFR Loan, an Alternative Currency Daily Rate Loan, an Alternative
Currency Term Rate Loan or a Canadian Prime Rate Loan.
“U.K. Financial Institution”
means any bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution
which is subject to any of the powers under any Bail-In Legislation of the United Kingdom.
“U.K. Resolution
Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of
any U.K. Financial Institution.
“U.S. Borrowers” has the meaning specified
in the introductory paragraph hereto.
“U.S. Government
Securities Business Day” means any Business Day, except any Business Day on which any of the Securities Industry and Financial
Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is
a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.
“U.S. Guarantors”
means, collectively, (a) each U.S. Subsidiary identified as a “U.S. Guarantor” on the signature pages hereto, (b) each
other U.S. Subsidiary that joins as a U.S. Guarantor pursuant to Section 6.14 or otherwise, (c) with respect to Additional
Secured Obligations owing by the Company or any Subsidiary under the Guaranty, each U.S. Borrower that is not a Specified U.S. Obligor,
and (d) the successors and permitted assigns of each of the foregoing to the extent that any such successor or permitted assign is
a U.S. Subsidiary, and, in the case of clause (c), not a CFC or CFC Holdco.
“U.S. Obligor”
means any Loan Party that is organized under the laws of the United States, a state thereof or the District of Columbia.
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“U.S. Person”
means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Person (Outbound
Investments)” means any United States citizen, lawful permanent resident, Person organized under the laws of the United States
or any jurisdiction within the United States, including any foreign branch of any such entity, or any Person in the United States.
“U.S. Security Agreements”
means, collectively, the Domestic U.S. Security Agreement and the Specified U.S. Security Agreement.
“U.S. Subsidiary”
means any Subsidiary that is organized under the laws of the United States, a state thereof or the District of Columbia.
“U.S. Tax Compliance Certificate” has
the meaning specified in Section 3.01(e)(ii)(B)(3).
“UCC” means
the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or
non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time
in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or
priority.
“UCP” means,
with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce
(“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
“United States” and “U.S.”
mean the United States of America.
“Unreimbursed Amount” has the meaning
specified in Section 2.03(c)(i).
“Unrestricted Subsidiary”
means, collectively, (a) each Subsidiary identified as an Unrestricted Subsidiary on Schedule 5.13 delivered to the Administrative
Agent on the Second Amendment Effective Date and (b) each other Subsidiary designated by the Company as an Unrestricted Subsidiary
after the Second Amendment Effective Date pursuant to Section 6.20; provided that, for the avoidance of doubt, any
Unrestricted Subsidiary re-designated as a Restricted Subsidiary pursuant to Section 6.20 shall not constitute an Unrestricted
Subsidiary.
“Valencia Property”
means the real property owned by Celestica Valencia, S.A.U. located at Carratera Valencia Ademuz, Km 17.6, La Pobla de Vallbona, Valencia,
Spain.
“Voluntary Prepayment
Amount” has the meaning specified in the definition of “Incremental Amount”.
“Weighted Average
Life” means, when applied to any Indebtedness at any date of determination, the period of time (expressed in years) obtained
by dividing (a) the sum of the total of the products obtained by multiplying (i) the amount of each scheduled installment, sinking
fund, serial maturity or other required payment of principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse between such date of determination and the making of such payment
by (b) the then outstanding principal amount of such Indebtedness as of such date of determination.
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“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, (b) with respect to the United Kingdom, any powers of the applicable Resolution
Authority under the applicable Bail-In Legislation to cancel, transfer or dilute shares issued by a U.K. Financial Institution or any
affiliate thereof, to cancel, reduce, modify or change the form of a liability of any U.K. 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 applicable Bail-In Legislation that are related to or ancillary
to any of those powers, and (c) in relation to any other applicable Bail-In Legislation: (i) any powers under that Bail-In Legislation
to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate
of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person
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; and (ii) any similar or analogous powers under that Bail-In Legislation.
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 Loan Document or Organization Document)
shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, 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 or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified, extended, restated,
replaced or supplemented from time to time, and (vi) the words “asset” and “property” shall
be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.
(b) In
the computation of periods of time from a specified date to a later specified date, the word “from” means “from
and including;” the words “to” and “until” each mean “to but excluding;” and
the word “through” means “to and including.”
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(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) Without
prejudice to the generality of any provision of this Agreement, for all other purposes pursuant to which the interpretation or construction
of this Agreement, any Collateral Document or any other Loan Document may be subject to the laws of the Province of Quebec or a court
or tribunal exercising jurisdiction in the Province of Quebec, (i) “personal property” shall be deemed to include “movable
property”, (ii) “real property” shall be deemed to include “immovable property” and an “easement”
shall be deemed to include a “servitude”, (iii) “tangible property” shall be deemed to include “corporeal
property”, (iv) “intangible property” shall be deemed to include “incorporeal property”, (v) “security
interest”, “lien”, “mortgage” and “charge” shall be deemed to include a “hypothec”,
(vi) all references to filing, registering or recording financing statements shall be deemed to include publication under the Civil
Code of Quebec, and all references to releasing any lien shall be deemed to include a release, discharge and mainlevée of a hypothec,
(vii) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right
of compensation”, (viii) “goods” shall be deemed to include “corporeal movable property” other than
chattel paper, documents of title, instruments, money and securities, (ix) an “agent” shall be deemed to include a “mandatary”
and (x) “deposit account” or “bank account” shall include “financial accounts” (as defined in
the Civil Code of Quebec) maintained by a bank.
(e) For
purposes of this Agreement and the other Loan Documents (other than Articles II, IX and X of this Agreement), where
the permissibility of any transaction or the determination of any required action or circumstance, in each case under or with respect
to any Security Agreement that makes reference to this provision and is governed by the law of a jurisdiction other than the United States,
a state thereof or the District of Columbia, depends upon compliance with, or is determined by reference to, amounts stated in Dollars,
(i) such amounts shall be deemed to refer to Dollars and/or the equivalent amount thereof denominated in any currency other than
Dollars, as applicable, and (ii) any requisite currency translation shall, unless otherwise specified, be based on the Dollar Equivalent
of such amount. The provisions of any such Security Agreement shall be subject to such reasonable changes of construction as the Administrative
Agent may from time to time specify with the Company’s consent (not to be unreasonably withheld) to appropriately reflect a change
in currency of any country and any relevant market conventions or practices relating to such change in currency, in each case as it relates
to such Security Agreement.
(f) Any
provision of Section 5.22, Section 6.16 or Section 7.16 shall not apply to or in favor of any Person
if and to the extent that it would result in a breach, by or in respect of that Person, of any applicable Blocking Law.
(g) Any
reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall
be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company
(or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale,
disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company
shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or
any other like term shall also constitute such a Person or entity).
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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, the Applicable Accounting Standard as in effect on such date applied on a consistent basis, as in effect from time to time, and
in the case of any accounting term or financial data (i) prior to the delivery of the first audited financial statements required
to be delivered after the Accounting Change Date, applied in a manner consistent with that used in preparing the Audited Financial Statements,
except as it relates to the Company’s adoption of IFRS 15 and IFRS 9 effective January 1, 2018, and (ii) on or
after the delivery of the first audited financial statements required to be delivered after the Accounting Change Date, applied in a
manner consistent with that used in preparing the GAAP Adjusted Annual Financial Statements, and, in each case, except as otherwise
specifically prescribed herein. Notwithstanding anything to the contrary in the foregoing, (i) for purposes of determining compliance
with any covenant (including the computation of any financial covenant set forth in Section 7.11) contained herein, Indebtedness
of the Company and its Subsidiaries shall be deemed to be carried at one hundred percent (100%) of the outstanding principal amount thereof
(and, from and after the delivery of the first audited financial statements to be delivered after the Accounting Change Date), the effects
of FASB ASC 825 and FASB ASC 470–20 on financial liabilities shall be disregarded and (ii) for all purposes of this Agreement
and the other Loan Documents, the aggregate principal amount of the Term B Loan will be calculated on the basis of the full stated principal
amount thereof (without giving effect to any original issue discount with respect to the Term B Loan). Notwithstanding anything to the
contrary set forth herein, with respect to determining the permissibility of the incurrence of any Indebtedness, the proceeds of such
Indebtedness shall not constitute Qualified Cash for purposes of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated
Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio in connection therewith.
(b) Changes
in the Applicable Accounting Standard. If at any time any change in the Applicable Accounting Standard would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Company or the Required Lenders (or, in the case
of a change affecting the computation of only the Consolidated Interest Coverage Ratio, the Consolidated First Lien Net Leverage Ratio,
the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio, or any one or more of the four, the Required
Pro Rata Facilities Lenders) shall so request, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent thereof in light of such change in the Applicable Accounting Standard
(subject to the approval of the Required Lenders (or, in the case of a change affecting the computation of only the Consolidated Interest
Coverage Ratio, the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net
Leverage Ratio, or any one or more of the four, the Required Pro Rata Facilities Lenders)); provided that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with the Applicable Accounting Standard prior to such change therein
and (ii) the Company shall provide to the Administrative Agent and the Lenders financial statements and other documents required
under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement
made before and after giving effect to such change in the Applicable Accounting Standard. Without limiting the foregoing, (A) prior
to the delivery of the first audited financial statements to be delivered after the Accounting Change Date, leases shall continue to
be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements (subject to the exceptions
noted in clause (a) above) for all purposes of this Agreement, notwithstanding any change in IFRS relating thereto, unless
the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above, and (B) from
and after the delivery of the first audited financial statements to be delivered after the Accounting Change Date, all liability amounts
shall be determined excluding any liability relating to any operating lease, all asset amounts shall be determined excluding any right-of-use
assets relating to any operating lease, all amortization amounts shall be determined excluding any amortization of a right-of-use asset
relating to any operating lease, and all interest amounts shall be determined excluding any deemed interest comprising a portion of fixed
rent payable under any operating lease, in each case to the extent that such liability, asset, amortization or interest pertains to an
operating lease under which the covenantor or a member of its consolidated group is the lessee and would not have been accounted for
as such under GAAP as in effect on December 31, 2015.
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1.04 Rounding.
Any financial ratios required to be maintained by the Company pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein
and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.05 Exchange
Rates; Currency Equivalents; Rates; Licensing.
(a) The
Administrative Agent or the applicable L/C Issuer, as applicable, shall determine the Dollar Equivalent amounts of Credit Extensions and
Outstanding Amounts denominated in Alternative Currencies. Such Dollar Equivalent shall become effective as of such Revaluation Date and
shall be the Dollar Equivalent of such amounts until the next Revaluation Date to occur. Except for purposes of financial statements delivered
by Loan Parties hereunder or calculating financial covenants set forth in Section 7.11 or except as otherwise provided herein,
the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as
so determined by the Administrative Agent or the applicable L/C Issuer, as applicable.
(b) Wherever
in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of an Alternative Currency Loan or a Canadian
Prime Rate Loan, or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount,
is expressed in Dollars, but such Borrowing, Alternative Currency Loan, Canadian Prime Rate Loan or Letter of Credit is denominated in
an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest
unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the applicable
L/C Issuer, as the case may be.
(c) The
Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect
to the administration, submission or any other matter related to any reference rate referred to herein or with respect to any rate
(including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an
alternative or replacement for or successor to any such rate (including, without limitation, any Successor Rate) (or any component
of any of the foregoing) or the effect of any of the foregoing, or of any Conforming Changes. The Administrative Agent and its
affiliates or other related entities may engage in transactions or other activities that affect any reference rate referred to
herein, or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of
any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to the Borrowers. The
Administrative Agent may select information sources or services in its reasonable discretion to ascertain any reference rate
referred to herein or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any
component of any of the foregoing), 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 other action or omission related to or affecting the selection, determination, or calculation of any rate
(or component thereof) provided by any such information source or service.
61
(d) By
agreeing to make Loans under this Agreement, each Lender is confirming it has all licenses, permits and approvals necessary for use of
the reference rates referred to herein and it will do all things necessary to comply, preserve, renew and keep in full force and effect
such licenses, permits and approvals.
1.06 Additional
Alternative Currencies.
(a) The
Company may from time to time request that Alternative Currency Loans be made and/or Letters of Credit be issued in a currency other than
those specifically listed in the definition of “Alternative Currency”; provided that such requested currency is an
Eligible Currency. In the case of any such request with respect to the making of Alternative Currency Loans, such request shall be subject
to the approval of the Administrative Agent and each Lender with a Commitment under which such currency is requested to be made available;
and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of
the Administrative Agent and the applicable L/C Issuer.
(b) Any
such request shall be made to the Administrative Agent not later than 11:00 a.m., twenty (20) Business Days prior to the date of the desired
Credit Extension (or such other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining
to Letters of Credit, the applicable L/C Issuer(s), in its or their sole discretion). In the case of any such request pertaining to Alternative
Currency Loans, the Administrative Agent shall promptly notify each applicable Lender thereof; and in the case of any such request pertaining
to Letters of Credit, the Administrative Agent shall promptly notify the applicable L/C Issuer(s) thereof. Each
applicable Lender (in the case of any such request pertaining to Alternative Currency Loans) or the applicable L/C Issuer (in the case
of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., ten (10) Business
Days after receipt of such request whether it consents, in its sole discretion, to the making of Alternative Currency Loans or the issuance
of Letters of Credit, as the case may be, in such requested currency.
(c) Any
failure by a Lender or an L/C Issuer, as the case may be, to respond to such request within the time period specified in the preceding
sentence shall be deemed to be a refusal by such Lender or such L/C Issuer, as the case may be, to permit Alternative Currency Loans
to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the applicable Lenders consent
to making Alternative Currency Loans in such requested currency and the Administrative Agent and such Lenders reasonably determine that
an appropriate interest rate is available to be used for such requested currency, the Administrative Agent shall so notify the Company
and (i) the Administrative Agent and such Lenders may amend the definition of “Alternative Currency Daily Rate” or “Alternative
Currency Term Rate”, as applicable, to the extent necessary to add the applicable rate for such currency and any applicable adjustment
for such rate and (ii) to the extent the definition of “Alternative Currency Daily Rate” or “Alternative Currency
Term Rate”, as applicable, has been amended to reflect the appropriate rate for such currency, such currency shall thereupon be
deemed for all purposes to be an Alternative Currency for purposes of any Borrowings of Alternative Currency Loans. If the Administrative
Agent and the applicable L/C Issuers consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent
shall so notify the Company and (A) the Administrative Agent and the applicable L/C Issuers may amend the definition of “Alternative
Currency Daily Rate” or “Alternative Currency Term Rate”, as applicable, to the extent necessary to add the applicable
rate for such currency and any applicable adjustment for such rate and (B) to the extent the definition of “Alternative Currency
Daily Rate” or “Alternative Currency Term Rate”, as applicable, has been amended to reflect the appropriate rate for
such currency, such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder, for purposes of any
Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under
this Section 1.06, the Administrative Agent shall promptly so notify the Company. Any specified currency of an Existing Letter
of Credit that is neither Dollars nor one of the Alternative Currencies specifically listed in the definition of “Alternative Currency”
shall be deemed an Alternative Currency with respect to such Existing Letter of Credit only.
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1.07 Change
of Currency.
(a) Each
obligation of the Borrowers to make a payment denominated in the national currency unit of any member state of the European Union that
adopts the Euro as its lawful currency after the Closing Date shall be redenominated into Euro at the time of such adoption. If, in relation
to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall
be inconsistent with any convention or practice in the interbank market for the basis of accrual of interest in respect of the Euro, such
expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro
as its lawful currency; provided that if any Borrowing in the currency of such member state is outstanding immediately prior to
such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.
(b) Each
provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time
specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions
or practices relating to the Euro.
(c) Each
provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time
to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices
relating to the change in currency.
1.08 Times
of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard,
as applicable).
1.09 Letter
of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar
Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to
any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases
in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
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1.10 Limited
Condition Acquisition. It is understood and agreed that, notwithstanding anything to the contrary in this Agreement, if the proceeds
of any Incremental Term Facility or Additional Indebtedness are being used to finance a Limited Condition Acquisition, and the Company
has obtained commitments of lenders to fund such Incremental Term Facility (“Incremental Financing Commitments”) or
such Additional Indebtedness (“Additional Financing Commitments”, and together with the Incremental Financing Commitments,
the “Limited Condition Commitments”), then (a) the conditions set forth in Section 2.16(b), clauses
(i)(B)(1) and (i)(B)(2) of Section 2.16(f), Section 4.02(a), Section 4.02(b),
Section 7.03(h) and clause (a) in the definition of “Permitted Acquisition” shall be limited
as follows, if and to the extent such lenders so agree in their Limited Condition Commitments: (i) the conditions set forth in clauses
(i)(B)(1) and (i)(B)(2) of Section 2.16(f) and Section 4.02(a) shall be limited
such that the only representations and warranties the accuracy of which shall be a condition to the availability of such Incremental
Term Facility or such Additional Indebtedness shall be (A) the Specified Representations, and (B) such representations and
warranties under the definitive agreement governing such Limited Condition Acquisition (the “Limited Condition Acquisition Agreement”)
as entitle the applicable Loan Party (or the applicable Subsidiary) to terminate its obligations under such Limited Condition Acquisition
Agreement or decline to consummate such Limited Condition Acquisition, in each case, without paying any penalty or compensation to the
other party or incurring liability for breach if such representations and warranties fail to be true and correct, and (ii) the reference
in Section 2.16(b), Section 4.02(b), Section 7.03(h) and clause (a) in the definition
of “Permitted Acquisition” to no Default or no Event of Default, as applicable, means (A) no Default or no Event of
Default, as applicable, shall have occurred and be continuing at the time of the execution of the Limited Condition Acquisition Agreement,
and (B) no Event of Default under Section 8.01(a), 8.01(f) or 8.01(g) shall have occurred and
be continuing at the time of the funding of such Incremental Term Facility or such Additional Indebtedness in connection with the consummation
of such Limited Condition Acquisition, and (b) for purposes of determining whether the conditions set forth in Section 2.16(l),
Section 7.03(h) or clause (f) in the definition of “Permitted Acquisition” have been satisfied
in connection with such Limited Condition Acquisition, at the Company’s option (the Company’s election to exercise such option
in connection with any Limited Condition Acquisition, a “LCA Election”), the date of determination of whether any
such condition has been satisfied shall be deemed to be the date the applicable Limited Condition Acquisition Agreement is executed (the
“LCA Test Date”), and if, for the Limited Condition Acquisition and the funding of such Incremental Term Facility
or such Additional Indebtedness in connection with the consummation of such Limited Condition Acquisition, the Loan Party or the applicable
Subsidiary would have satisfied such condition on the relevant LCA Test Date, such condition shall be deemed to have been satisfied.
If the Company has made a LCA Election for any Limited Condition Acquisition, then in connection with any calculation of any ratio, test
or basket availability with respect to any Specified Transaction (each, a “Subsequent Transaction”) following the
relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated and the date that
the applicable Limited Condition Acquisition Agreement is terminated or expires without consummation of such Limited Condition Acquisition,
for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall
be calculated and tested both on (x) a Pro Forma Basis assuming such Limited Condition Acquisition and the other transactions in
connection therewith have been consummated until such time as the applicable Limited Condition Acquisition has actually closed or the
applicable Limited Condition Acquisition Agreement has been terminated or expires without consummation of such Limited Condition Acquisition,
and (y) a standalone basis without giving effect to such Limited Condition Acquisition and the other transactions in connection
therewith. It is understood and agreed that this Section 1.10 shall not limit the conditions set forth in Section 4.02
or in the definition of “Permitted Acquisition” with respect to any proposed Borrowing of Revolving Loans or Swing Line Loans
or any issuance of Letters of Credit, in each case, in connection with such Limited Condition Acquisition or otherwise.
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1.11 [Reserved].
1.12 Irish
Terms. In respect of any Irish Loan Party:
(a) “Dissolution”
of an Irish Loan Party includes such entity being struck off the Register of Companies in Ireland.
(b) An
“examiner” means an examiner (including any interim examiner) appointed under Part 10 of the Irish Companies Act
and examinership shall be construed accordingly.
(c) A
“process adviser” means a Person appointed or acting as a process adviser within the meaning of Section 558A(1) of
the Irish Companies Act.
(d) A
“rescue process” means the rescue process for small and micro companies contemplated by Part 10A of the Irish
Companies Act.
(e) An
Irish Loan Party being “unable to pay its debts” means that Person being unable to pay its debts within the meaning
of Sections 509(3) and 570 of the Irish Companies Act.
(f) A
reference to a Loan Party being “organized” under the laws of any jurisdiction shall be construed in the context of
an Irish Loan Party as being a reference to that Irish Loan Party being incorporated under the laws of Ireland.
1.13 Spanish
Terms. In respect of any Spanish Guarantor, a reference to:
(a) “financial
assistance” has the meaning stated under:
(i) Article 150
of the Spanish Companies Law for a Spanish public company (“Sociedad Anónima”) or in any other legal provision
that may substitute such Article 150 or be applicable to any Non-U.S. Obligor incorporated in Spain in respect of such financial
assistance; or
(ii) Article 143
of the Spanish Companies Law for a Spanish limited liability company (“Sociedad de Responsabilidad Limitada”) or in
any other legal provision that may substitute such Article 143 or be applicable to any Non-U.S. Obligor incorporated in Spain in
respect of such financial assistance;
(b) “insolvency”
(“concurso” or any other equivalent legal proceeding) and any step or proceeding related to it has the meaning attributed
to them under the Spanish Insolvency Law and “insolvency proceeding” includes, without limitation, a “declaración
de concurso”, necessary or voluntary (“necesario o voluntario”) and the filing of the notice of initiation
of negotiations with creditors according to Articles 585 et seq. of the Spanish Insolvency Law;
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(c) “winding-up,
administration or dissolution” includes, without limitation, “disolución”, “liquidación”,
or “administración concursal” or any other similar proceedings;
(d) “receiver,
administrative receiver, administrator” or the like includes, without limitation, “administración del concurso”,
“administrador concursal”, “liquidador”, “experto en la reestructuración”
or any other person performing the same function;
(e) “composition,
compromise, assignment or arrangement with any creditor” includes, without limitation, the celebration of a “convenio”
in the context of an insolvency proceeding or a restructuring plan (“plan de reestructuración”) according to
Articles 614 et seq. of the Spanish Insolvency Law;
(f) “person
being unable to pay its debts” includes that person being in a state of “insolvencia” or “concurso”
according to the Spanish Insolvency Law;
(g) “matured
obligation” includes, without limitation, any “crédito líquido, vencido y exigible”; and
(h) “security
interest or security” includes any mortgage (“hipoteca mobiliaria o inmobiliaria”), pledge (“prenda
con o sin desplazamiento posesorio”), “garantía financiera” and, in general, any right in rem (“garantia
real”) governed by Spanish law, created for the purpose of granting security.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Revolving
Loans, Term B Loan and Term A Loan.
(a) Revolving
Loans. Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make loans (each such loan,
a “Revolving Loan”) to the Borrowers or any of them in Dollars or in one or more Alternative Currencies from time to
time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such
Lender’s Revolving Commitment; provided, however, that after giving effect to any Borrowing of Revolving Loans:
(i) the
Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments;
(ii) the
aggregate Outstanding Amount of the Revolving 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 Revolving Commitment;
(iii) the
aggregate Outstanding Amount of all Revolving Loans denominated in Alternative Currencies, other than Revolving Loans denominated in Canadian
Dollars, shall not exceed the Alternative Currency Sublimit;
(iv) the
aggregate Outstanding Amount of all Revolving Loans denominated in Canadian Dollars shall not exceed the Canadian Dollar Sublimit; and
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(v) Revolving
Loans denominated in Canadian Dollars shall not be extended to any Borrower other than a Canadian Borrower.
Within the limits of each Lender’s
Revolving Commitment, and subject to the other terms and conditions hereof, each Borrower may borrow under this Section 2.01(a),
prepay under Section 2.06, and reborrow under this Section 2.01. Revolving Loans may be Base Rate Loans, Canadian
Prime Rate Loans, Term SOFR Loans, Alternative Currency Daily Rate Loans or Alternative Currency Term Rate Loans as further provided herein.
(b) Term
B Loan. Subject to the terms and conditions set forth herein, each Lender severally agrees to make its portion of a term loan (the
“Term B Loan”) to the Company in Dollars on the Closing Date in an amount not to exceed such Lender’s Term B
Loan Commitment. Amounts repaid on the Term B Loan may not be reborrowed. The Term B Loan may consist of Base Rate Loans or Term SOFR
Loans, or a combination thereof, as further provided herein; provided, however, any Borrowings made on the Closing Date
shall be made as Base Rate Loans unless the Company delivers a funding indemnity letter not less than three (3) Business Days prior
to the date of such Borrowing.
(c) Term
A Loan. Subject to the terms and conditions set forth herein, each Lender severally agrees to make its portion of a term loan (the
“Term A Loan”) to the Company in Dollars on the Second Amendment Effective Date in an amount not to exceed such Lender’s
Term A Loan Commitment. Amounts repaid on the Term A Loan may not be reborrowed. The Term A Loan may consist of Base Rate Loans or Term
SOFR Loans, or a combination thereof, as further provided herein.
2.02 Borrowings,
Conversions and Continuations of Loans.
(a) Each
Borrowing, each conversion of Loans from one Type to another Type, and each continuation of Term SOFR Loans or Alternative Currency Term
Rate Loans shall be made upon a Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone
or (B) a Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative
Agent of a Loan Notice. Each such Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. (i) [reserved],
(ii) two (2) Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Term SOFR Loans,
or of any conversion of Term SOFR Loans to Base Rate Loans, (iii) four (4) Business Days (or five (5) Business Days in
the case of a Special Notice Currency) prior to the requested date of any Borrowing or continuation of Alternative Currency Loans, and
(iv) on the requested date of any Borrowing of Base Rate Loans or Canadian Prime Rate Loans. Each Borrowing of, conversion to or
continuation of Term SOFR Loans and Alternative Currency Loans shall be in a principal amount of the Dollar Equivalent of $1,000,000
or a whole multiple of the Dollar Equivalent of $1,000,000 in excess thereof. Except as provided in Sections 2.03(c), each Borrowing
of or conversion to Base Rate Loans or Canadian Prime Rate Loans shall be in a principal amount of the Dollar Equivalent $500,000 or
a whole multiple of the Dollar Equivalent of $100,000 in excess thereof. Each Loan Notice shall specify (i) whether the Company
is requesting a Borrowing, a conversion of Loans from one Type to another Type, or a continuation of Term SOFR Loans or Alternative Currency
Term Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business
Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or
to which existing Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto, (vi) the
currency of the Loans to be borrowed, and (vii) the applicable Borrower. If a Borrower fails to specify a currency in a Loan Notice
requesting a Borrowing, then the Loans so requested shall be made in Dollars. If a Borrower fails to specify a Type of Loan in a Loan
Notice or if a Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made
as, or converted to, Base Rate Loans; provided, however, that in the case of a failure to timely request a continuation
of Loans denominated in (x) Canadian Dollars, such Loans shall be continued as (or converted into) Canadian Prime Rate Loans or
(y) an Alternative Currency (other than Canadian Dollars), then to the extent such Loans denominated in such currency will bear
interest at an Alternative Currency Term Rate, such Loans shall be continued as Alternative Currency Term Rate Loans in their original
currency with an Interest Period of one (1) month. Any automatic conversion to Base Rate Loans or Canadian Prime Rate Loans shall
be effective as of the last day of the Interest Period then in effect with respect to the applicable Term SOFR Loans or Alternative Currency
Term Rate Loans. If a Borrower requests a Borrowing of, conversion to, or continuation of Term SOFR Loans or Alternative Currency Term
Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of
one (1) month. Except as provided in Section 2.13(a), no Loan may be converted into or continued as a Loan denominated
in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currency.
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(b) Following
receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount (and currency) of its Applicable Percentage
of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the applicable Borrower, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or Canadian Prime Rate Loans or continuation
of Alternative Currency Term Rate Loans, in each case as described in the preceding subsection. In the case of a Borrowing, each Lender
shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office for
the applicable currency not later than 1:00 p.m., in the case of any Loan denominated in Dollars, and not later than the Applicable Time
specified by the Administrative Agent in the case of any Loan denominated in an Alternative Currency, in each case on the Business Day
specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available
to the applicable Borrower in like funds as received by the Administrative Agent either by, as directed by such Borrower, (i) crediting
the account of such Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in
each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by such Borrower; provided,
however, that if, on the date the Loan Notice with respect to such Borrowing denominated in Dollars is given by a 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 applicable Borrower as provided above.
(c) Except
as otherwise provided herein, a Term SOFR Loan and an Alternative Currency Term Rate Loan may be continued or converted only on the last
day of an Interest Period for such Term SOFR Loan or Alternative Currency Term Rate Loan. During the existence of a Default, no Loans
may be requested as, converted to or continued as Term SOFR Loans or Alternative Currency Term Rate Loans without the consent of the Required
Lenders, and the Required Lenders may demand that any or all of the then outstanding Alternative Currency Term Rate Loans be prepaid,
or redenominated into Dollars in the amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with
respect thereto.
(d) The
Administrative Agent shall promptly notify the Company and the Lenders of the interest rate applicable to any Interest Period for Term
SOFR Loans or Alternative Currency Term Rate Loans upon determination of such interest rate.
(e) After
giving effect to all Borrowings, all conversions of Revolving Loans and Term Loans from one Type to another Type, and all continuations
of Revolving Loans and Term Loans as the same Type, there shall not be more than ten Interest Periods in effect.
(f) Notwithstanding
anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection
with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless
settlement mechanism approved by the Company, the Administrative Agent, and such Lender.
(g) With
respect to any Alternative Currency Daily Rate, Alternative Currency Term Rate, SOFR or Term SOFR, the Administrative Agent will have
the right to make Conforming Changes from time to time in consultation with the Borrowers 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; provided that, with respect to any such amendment effected,
the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrowers and the Lenders reasonably
promptly after such amendment becomes effective.
2.03 Letters
of Credit.
(a) The
Letter of Credit Commitment.
(i) Subject
to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Lenders
set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until
the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for
the account of the Company or any Restricted Subsidiary, 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 Revolving Lenders severally agree to
participate in Letters of Credit issued for the account of the Company and any drawings thereunder; provided that after giving
effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the
Aggregate Revolving Commitments, (y) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving
Commitment and (z) the aggregate Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each
request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that
the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving,
and accordingly the Company 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 deemed
L/C Obligations, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
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(ii) No
L/C Issuer shall issue any Letter of Credit, if:
(A) subject
to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve (12) months after
the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date;
(B) the
expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Lenders
have approved such expiry date; or
(C) the
beneficiary of the requested Letter of Credit is either (1) a resident in Ireland or (2) a legal person, the place of establishment
to which the requested Letter of Credit relates is in Ireland, in each case unless such L/C Issuer is either (x) authorized under
the laws of Ireland to issue Letters of Credit to any such beneficiary or (y) exempted under the laws of Ireland from the requirement
referenced in the immediately preceding clause (x) from the requirement to obtain such authorization.
(iii) No
L/C Issuer shall 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 such L/C Issuer
from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force
of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain
from, the issuance of letters of credit or related bankers’ acceptances generally or such Letter of Credit in particular or shall
impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C
Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed
loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;
(B) the
issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except
as otherwise agreed by the Administrative Agent and such L/C Issuer, the Letter of Credit is in an initial stated amount less than the
Dollar Equivalent of $100,000, in the case of a commercial Letter of Credit, or $250,000, in the case of a standby Letter of Credit (or,
in each case, such lesser amount as such L/C Issuer may agree in its sole discretion);
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(D) except
as otherwise agreed by the Administrative Agent and such L/C Issuer, the Letter of Credit is to be denominated in a currency other than
Dollars or an Alternative Currency;
(E) such
L/C Issuer does not as of the issuance date of the requested Letter of Credit issue Letters of Credit in the requested currency; or
(F) any
Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral,
satisfactory to such L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate such 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 such L/C Issuer
has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) No
L/C Issuer shall amend any Letter of Credit if such 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) No
L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such 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) Each
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 each 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 such 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 such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided
herein with respect to such L/C Issuer.
(b) Procedures
for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each
Letter of Credit shall be issued or amended, as the case may be, upon the request of the Company delivered to the applicable L/C Issuer
(with a copy to the Administrative Agent, if Bank of America is not the applicable L/C Issuer) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the Company. Such Letter of Credit Application may be sent by facsimile,
by United States mail or Canada Post, by overnight courier, by electronic transmission using the system provided by such L/C Issuer,
by personal delivery or by any other means acceptable to such L/C Issuer. Such Letter of Credit Application must be received by the applicable
L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or such later date and time
as the Administrative Agent and such 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 reasonably satisfactory to the applicable L/C Issuer: (A) the proposed issuance
date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof (and in the absence
of specification of currency, shall be deemed a request for a Letter of Credit denominated in Dollars); (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be 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 such 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 reasonably
satisfactory to such 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 such L/C Issuer may require. Additionally,
the Company shall furnish to such 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 such L/C Issuer or the Administrative Agent may require.
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(ii) Promptly
after receipt of any Letter of Credit Application, the applicable 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 Company and, if not, such
L/C Issuer will provide the Administrative Agent with a copy thereof. Unless such 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, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Company
(or the applicable Restricted Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with
such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from such 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.
(iii) If
the Company so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole discretion, agree
to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such extension at least once
in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary
thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon
at the time such Letter of Credit is issued. Unless otherwise directed by such L/C Issuer, the Company shall not be required to make
a specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall
be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any
time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that such L/C Issuer shall
not permit any such extension if (A) such L/C Issuer has determined that it would not be permitted, or would have no obligation,
at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of
clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which
may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from
the Administrative Agent that the Required Revolving Lenders have elected not to permit such extension or (2) from the Administrative
Agent, any Lender or the Company that one or more of the applicable conditions specified in Section 4.02 is not then satisfied,
and in each case directing such L/C Issuer not to permit such extension.
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(iv) If
the Company so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole discretion, agree to
issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder
(each, an “Auto-Reinstatement Letter of Credit”). Unless otherwise directed by such L/C Issuer, the Company shall not
be required to make a specific request to the applicable L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of
Credit has been issued, except as provided in the following sentence, the Lenders shall be deemed to have authorized (but may not require)
the applicable L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter
of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the applicable L/C Issuer to decline to
reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within
a specified number of days after such drawing (the “Non-Reinstatement Deadline”), such L/C Issuer shall not permit
such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is seven (7) Business
Days before the Non-Reinstatement Deadline (A) from the Administrative Agent that the Required Revolving Lenders have elected not
to permit such reinstatement or (B) from the Administrative Agent, any Lender or the Company that one or more of the applicable conditions
specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this
clause) and, in each case, directing such L/C Issuer not to permit such reinstatement.
(v) 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 applicable L/C Issuer will also deliver to the Company 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, the applicable L/C Issuer
shall notify the Company and the Administrative Agent thereof. In the case of a Letter of Credit denominated in an Alternative Currency,
the Company shall reimburse such L/C Issuer in such Alternative Currency, unless (A) the applicable L/C Issuer (at its option) shall
have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement
in Dollars, the Company shall have notified such L/C Issuer promptly following receipt of the notice of drawing that the Company will
reimburse such L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated
in an Alternative Currency, the applicable L/C Issuer shall notify the Company of the Dollar Equivalent of the amount of the drawing
promptly following the determination thereof. If the Company is notified prior to 11:00 a.m. on the date of any payment by an L/C
Issuer under a Letter of Credit to be reimbursed in Dollars, or prior to the Applicable Time on the date of any payment by an L/C Issuer
under a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an “Honor Date”), the Company
shall reimburse the applicable L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the
applicable currency on such date (or, if notified after such time, then no later than 11:00 a.m. on the next succeeding Business
Day with respect to any payment by the applicable L/C Issuer under a Letter of Credit to be reimbursed in Dollars or the Applicable Time
on the next succeeding Business Day with respect to any payment by the applicable L/C Issuer under a Letter of Credit to be reimbursed
in an Alternative Currency). In the event that (A) a drawing denominated in an Alternative Currency is to be reimbursed in Dollars
pursuant to the second sentence in this Section 2.03(c)(i) and (B) the Dollar amount paid by the Company, whether
on or after the Honor Date, shall not be adequate on the date of that payment to purchase in accordance with normal banking procedures
a sum denominated in the Alternative Currency equal to the drawing, the Company agrees, as a separate and independent obligation, to
indemnify the applicable L/C Issuer for the loss resulting from its inability on that date to purchase the Alternative Currency in the
full amount of the drawing. If the Company fails to timely reimburse an L/C Issuer on the Honor Date, the Administrative Agent shall
promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar
Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency) (the “Unreimbursed Amount”),
and the amount of such Lender’s Applicable Percentage thereof. In such event, the Company shall be deemed to have requested a Borrowing
of Revolving Loans that are 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 Revolving Loans that are Base Rate
Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Loan Notice) and provided that, after giving effect to such Borrowing, the Total Revolving Outstandings
shall not exceed the Aggregate Revolving Commitments. Any notice given by an L/C Issuer or the Administrative Agent pursuant to this
Section 2.03(c)(i) may be given by telephone if promptly 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
Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and the Administrative Agent
may apply Cash Collateral provided for this purpose) for the account of the applicable L/C Issuer, in Dollars, at the Administrative Agent’s
Office for Dollar-denominated payments in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00
p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
each Revolving Lender that so makes funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the Company
in such amount. The Administrative Agent shall remit the funds so received to the applicable L/C Issuer in Dollars.
(iii) With
respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of Revolving Loans that are Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Company shall be deemed to have incurred
from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing
shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving
Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall
be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction
of its participation obligation under this Section 2.03.
(iv) Until
each Revolving Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the applicable
L/C Issuer for any amount drawn under any Letter of Credit issued by such L/C Issuer, interest in respect of such Lender’s Applicable
Percentage of such amount shall be solely for the account of such L/C Issuer.
(v) Each
Revolving Lender’s obligation to make Revolving Loans or L/C Advances to reimburse each L/C Issuer for amounts drawn under Letters
of Credit issued by such L/C Issuer, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender
may have against an L/C Issuer, the Company, any Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided,
however, that each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.02 (other than delivery by the Company of a Loan Notice). No such making
of an L/C Advance shall relieve or otherwise impair the obligation of the Company to reimburse an L/C Issuer for the amount of any payment
made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If
any Revolving Lender fails to make available to the Administrative Agent for the account of an L/C Issuer any amount required to be paid
by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
then, without limiting the other provisions of this Agreement, such 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 such L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time
to time in effect, plus any administrative, processing or similar fees customarily charged by such 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
Revolving Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate
of an L/C Issuer submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause
(vi) shall be conclusive absent manifest error.
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(d) Repayment
of Participations.
(i) At
any time after an L/C Issuer has made a payment under any Letter of Credit issued by such L/C Issuer and has received from any Revolving
Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative
Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Company 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 Dollars and in the same funds as those received by the Administrative
Agent.
(ii) If
any payment received by the Administrative Agent for the account of an L/C Issuer pursuant to Section 2.03(c)(i) is required
to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into
by an L/C Issuer in its discretion), each Revolving Lender shall pay to the Administrative Agent for the account of such 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 applicable Overnight Rate from time to time in effect. The
obligations of the Revolving 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 Company to reimburse each L/C Issuer for each drawing under each Letter of Credit issued by such L/C
Issuer 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 Company 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 applicable 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, endorsement, certificate or other document presented under or in connection with such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) waiver
by such L/C Issuer of any requirement that exists for such L/C Issuer’s protection and not the protection of the Company or any
waiver by such L/C Issuer which does not in fact materially prejudice the Company;
(v) honor
of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;
(vi) any
payment made by such L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date
of, or the date by which documents must be received under, such Letter of Credit if presentation after such date is authorized
by the UCC, the ISP or the UCP, as applicable;
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(vii) any
payment by such 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 such 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, provisional liquidator, restructuring
officer, receiver, administrator or other representative of or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief Law;
(viii) any
adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Company or any Subsidiary
or in the relevant currency markets generally; or
(ix) any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Company or any Subsidiary.
The Company 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 Company’s instructions or other irregularity, the Company will immediately notify the applicable L/C Issuer.
The Company shall be conclusively deemed to have waived any such claim against such L/C Issuer and its correspondents unless such notice
is given as aforesaid.
(f) Role
of L/C Issuer. Each Lender and the Company agree that, in paying any drawing under a Letter of Credit, the applicable 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 Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of any 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, the Required Pro Rata Facilities Lenders, the Required Revolving Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence of bad faith, 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 Company 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 Company’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 Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any
L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (viii) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary notwithstanding, the Company may have a claim against
an L/C Issuer, and an L/C Issuer may be liable to the Company, to the extent, but only to the extent, of any direct, as opposed to consequential
or exemplary, damages suffered by the Company which the Company proves, as determined by a final non-appealable judgment of a court of
competent jurisdiction, were caused by such L/C Issuer’s bad faith, willful misconduct or gross negligence or such L/C Issuer’s
willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight or time 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, an 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 such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring,
endorsing or assigning or purporting to transfer, endorse or assign a Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The L/C Issuers may send a Letter of Credit
or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”)
message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
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(g) Applicability
of ISP and UCP; Limitation of Liability. Unless otherwise expressly agreed by the applicable
L/C Issuer and the Company when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of
Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit and (ii) the rules of the UCP
shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, no L/C Issuer shall be responsible to the Company
for, and no L/C Issuer’s rights and remedies against the Company shall be impaired by, any action or inaction of such L/C
Issuer required or permitted under any Law, order, or practice that is required or permitted to be applied to any Letter of Credit
or this Agreement, including the Law or any order of a jurisdiction where such L/C Issuer or the beneficiary is located, the
practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the
ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or
the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such Law or
practice.
(h) Letter
of Credit Fees. The Company shall pay to the Administrative Agent for the account of each Revolving Lender in accordance, subject
to adjustment as provided in Section 2.18, with its Applicable Percentage, in Dollars, a Letter of Credit fee (the “Letter
of Credit Fee”) (A) for each commercial Letter of Credit equal to one-half (1/2) of one percent
(0.50%) per annum times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit, and (B) for
each standby Letter of Credit equal to the Applicable Rate for Letter of Credit Fees times the Dollar Equivalent of the daily
amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. Letter of Credit
Fees shall be (x) due and payable on the first (1st) Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand and (y) 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 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 Revolving Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue
at the Default Rate.
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(i) Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. The Company shall pay directly to each L/C Issuer for its own
account, in Dollars, a fronting fee (i) with respect to each commercial Letter of Credit issued by such L/C Issuer, at the rate
specified in the Fee Letters or otherwise agreed in writing by the applicable L/C Issuer and the Company, as applicable, in each
case computed on the Dollar Equivalent of the amount of such Letter of Credit and due and payable upon the issuance thereof,
(ii) with respect to any amendment of a commercial Letter of Credit issued by such L/C Issuer increasing the amount of such
Letter of Credit, at a rate separately agreed between the Company and such L/C Issuer, computed on the Dollar Equivalent of the
amount of such increase, and due and payable upon the effectiveness of such amendment, and (iii) with respect to each standby
Letter of Credit issued by such L/C Issuer, at the rate per annum specified in the Fee Letters or otherwise agreed in writing by
such L/C Issuer and the Company, as applicable, in each case computed on the Dollar Equivalent of the daily amount available to be
drawn under such Letter of Credit on a quarterly basis in arrears and due and payable on the first (1st) Business Day
after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or
portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to
be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09.
In addition, the Company shall pay directly to each L/C Issuer for its own respective account, in Dollars, the customary issuance,
presentation, amendment and other processing fees, and other standard costs and charges, of such 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.
2.04 [Reserved].
2.05 Swing
Line Loans.
(a) Swing
Line Facility. Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the
other Revolving Lenders set forth in this Section 2.05, may in its sole discretion make loans in Dollars (each such loan,
a “Swing Line Loan”) to the Borrowers or any of them 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 Revolving Loans and L/C Obligations
of the Revolving Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Commitment; provided,
however, that (x) after giving effect to any Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed
the Aggregate Revolving Commitments, and (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving
Commitment, (y) no Borrower shall use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and (z) the
Swing Line Lender shall not be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive
and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits,
and subject to the other terms and conditions hereof, each 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 Revolving 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.
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(b) Borrowing
Procedures. Each Swing Line Borrowing shall be made upon the applicable Borrower’s irrevocable notice to the Swing Line Lender
and the Administrative Agent, which may be given by (A) telephone or (B) by a Swing Line Loan Notice; provided that
any telephonic notice must be confirmed promptly by delivery to the Swing line Lender and the Administrative Agent of a Swing Line Loan
Notice. Each such Swing Line Loan Notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on
the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum principal amount of $100,000,
and (ii) the requested borrowing date, which shall be a Business Day. 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 of the contents
thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the
request of any Revolving 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 applicable Borrower.
(c) Refinancing
of Swing Line Loans.
(i) The
Swing Line Lender at any time in its sole discretion may request, on behalf of the applicable Borrower (and each Borrower hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to
such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which
written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal amount of Revolving Loans that are Base Rate Loans, but
subject to the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 4.02. The
Swing Line Lender shall furnish the Company with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative
Agent. Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Loan Notice available
to the Administrative Agent in Same Day 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 for Dollar-denominated payments not
later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.05(c)(ii), each Revolving
Lender that so makes funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the applicable Borrower
in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
(ii) If
for any reason any Swing Line Loan cannot be refinanced by such a Borrowing of Revolving Loans in accordance with Section 2.05(c)(i),
the request for Revolving Loans that are Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be
a request by the Swing Line Lender that each of the Revolving Lenders fund its risk participation in the relevant Swing Line Loan and
each Revolving 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.
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(iii) If
any Revolving 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 Revolving 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 applicable Overnight Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Revolving Lender pays
such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Loan included in
the relevant 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 Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall
be conclusive absent manifest error.
(iv) Each
Revolving Lender’s obligation to make Revolving 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 Revolving Lender may have against the Swing Line Lender, any Borrower
or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Lender’s
obligation to make 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 each Borrower to repay Swing Line Loans made
to such Borrower, together with interest as provided herein.
(d) Repayment
of Participations.
(i) At
any time after any Revolving Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives
any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving 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 Revolving 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 applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swing
Line Lender. The obligations of the Revolving Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.
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(e) Interest
for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing each Borrower for interest on the Swing
Line Loans made to such Borrower. Until each Revolving Lender funds its Revolving Loans that are Base Rate Loans or risk participations
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. Each Borrower shall make all payments of principal and interest
in respect of the Swing Line Loans made to such Borrower directly to the Swing Line Lender.
2.06 Prepayments.
(a) Voluntary
Prepayments of Loans.
(i) Revolving
Loans and Term Loans. Any Borrower may, upon delivery of a Notice of Loan Prepayment to the Administrative Agent, at any time or
from time to time voluntarily prepay Revolving Loans and Term Loans in whole or in part without premium or penalty except as set
forth in Section 2.06(a)(iii); provided that, unless otherwise agreed by the Administrative Agent, (A) such
notice must be received by the Administrative Agent not later than 12:00 noon (w) [reserved], (x) two (2) Business
Days prior to any date of prepayment of Term SOFR Loans, (y) four (4) Business Days (or five (5) Business Days in the
case of a prepayment of Loans denominated in Special Notice Currencies) prior to any date of prepayment of Alternative Currency
Loans and (z) on the date of prepayment of Base Rate Loans and Canadian Prime Rate Loans; (B) any such prepayment of Term
SOFR Loans and Alternative Currency Loans shall be in a principal amount of the Dollar Equivalent of $1,000,000 or a whole multiple
of the Dollar Equivalent of $500,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding);
(C) any prepayment of Base Rate Loans and Canadian Prime Rate Loans shall be in a principal amount of the Dollar Equivalent of
$1,000,000 or a whole multiple of the Dollar Equivalent of $500,000 in excess thereof (or, if less, the entire principal amount
thereof then outstanding); and (D) any prepayment of any of the Term Loans shall be applied to such tranche of the Term Loans
as the applicable Borrower making such prepayment shall direct in its sole discretion; provided that, absent such direction
any prepayment shall be applied ratably to the Term Loans then outstanding (and to the principal installments thereof in direct
order of maturity). Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be
prepaid and, if Term SOFR Loans or Alternative Currency Term Rate 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; provided that any such notice delivered by a Borrower may be
conditioned upon the effectiveness of other transactions, in which case such notice may be revoked or its effectiveness deferred by
such Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied, subject to the payment of breakage costs in accordance with Section 3.05.
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If such notice is given by a Borrower, such Borrower
shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a Loan shall be accompanied by all accrued interest on the amount prepaid, together with (I) in the case of any applicable
Term Loan, any additional amounts required pursuant to Section 2.06(a)(iii) and (II) in the case of any Term SOFR
Loan or Alternative Currency Term Rate Loan, any additional amounts required pursuant to Section 3.05. Subject to Section 2.18,
each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Applicable Percentages.
(ii) Swing
Line Loans. Any Borrower may, upon delivery of a Notice of Loan Prepayment 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, unless otherwise agreed to by the Swing Line Lender, (A) such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 2:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount
of $100,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal thereof then outstanding). Each such
notice shall specify the date and amount of such prepayment. If such notice is given by a Borrower, such Borrower shall make such prepayment
and the payment amount specified in such notice shall be due and payable on the date specified therein.
(iii) Prepayment
Premium. In the event that, on any day during the relevant Call Protection Period, (A) a Repricing Event occurs with respect
to the Term B Loan, or (B) a Lender holding a portion of the Term B Loan is deemed to be a Non-Consenting Lender and must assign
its portion of such Term Loan pursuant to Section 10.13 in connection with any waiver, amendment or modification that would
reduce the effective All-In-Yield in effect with respect to such Term Loan, then, in each case, the aggregate principal amount to be
prepaid or repaid or assigned, as applicable, will be subject to a prepayment premium in an amount equal to one percent (1.00%) of (x) the
principal amount of such Term Loan that is prepaid (in the case of an optional or mandatory prepayment of such Term Loan described in
clause (a) of the definition of “Repricing Event”), (y) the aggregate outstanding principal amount
of such Term Loan (in the case of an amendment described in clause (b) of the definition of “Repricing Event”),
or (z) the principal amount of such Term Loan that is assigned (in the case of the foregoing clause (B)). Such
prepayment premium shall be paid by the Company to the Administrative Agent, for the account of the applicable Lenders or such Non-Consenting
Lenders, as applicable, on the date of such prepayment or repayment or the effective date of such assignment, as applicable.
(b) Mandatory
Prepayments of Loans.
(i) Revolving
Commitments.
(A) If
for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Commitments then in effect, the Borrowers
shall promptly prepay Revolving Loans and/or Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal
to such excess; provided, however, that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant
to this Section 2.06(b)(i)(A) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total
Revolving Outstandings exceed the Aggregate Revolving Commitments then in effect.
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(B) In
the case of Loans and Letters of Credit denominated in an Alternative Currency, the Administrative Agent will at periodic intervals, and
may, at its discretion at other times, recalculate the Dollar Equivalent of the aggregate Outstanding Amount of all Revolving Loans and
L/C Obligations denominated in Alternative Currencies to account for fluctuations in exchange rates affecting such Alternative Currency.
If, as a result of any such recalculation or otherwise, the Total Revolving Outstandings exceed the Aggregate Revolving Commitments then
in effect by more than the Dollar Equivalent of $500,000, the Borrowers will promptly prepay Revolving Loans and/or Swing Line Loans and/or
Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess.
(ii) Dispositions
and Recovery Events. The Borrowers shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in
an aggregate amount equal to one hundred percent (100%) of the Net Cash Proceeds in excess of $50,000,000 during any fiscal year received
by the Company or any Restricted Subsidiary from all Dispositions (other than Dispositions permitted by Sections 7.05(a) through
(y)) and Recovery Events to the extent such Net Cash Proceeds in excess of $50,000,000 are not reinvested in assets (excluding current
assets as classified by the Applicable Accounting Standard as in effect on such date) that are useful or usable in the business of the
Company and its Restricted Subsidiaries within three hundred sixty-five (365) days of the date of such Disposition or Recovery Event;
provided, however, if any portion of such Net Cash Proceeds are not so reinvested within such 365-day period but within
such 365-day period are contractually committed to be reinvested, then upon the termination of such contract or if such Net Cash Proceeds
are not so reinvested within five hundred forty-five (545) days of initial receipt, such remaining portion shall constitute Net Cash
Proceeds as of the date of such termination or expiry and shall be immediately applied to the prepayment of the Term Loans as set forth
in this Section 2.06(b)(ii). Any prepayment pursuant to this clause (ii) shall be applied as set forth in clause
(v) below.
(iii) Consolidated
Excess Cash Flow. Within ten (10) Business Days after the date that the annual consolidated financial statements of the Company
and its Restricted Subsidiaries are required to be delivered pursuant to Section 6.01(a) after the end of each fiscal
year ending after the Closing Date (the “Consolidated Excess Cash Flow Prepayment Date”), commencing with the fiscal
year ending December 31, 2024, the Company shall prepay (or cause to be prepaid) the Term Loans as hereafter provided in an aggregate
amount equal to the difference of (A) the product of Consolidated Excess Cash Flow for such year times (I) fifty percent
(50%), if the Consolidated Secured Leverage Ratio as of the end of such fiscal year is equal to or greater than 2.75:1.00 or (II) twenty-five
percent (25%), if the Consolidated Secured Leverage Ratio as of the end of such fiscal year is less than 2.75:1.00 but greater than or
equal to 2.50:1.00, minus (B) the aggregate amount of optional principal prepayments of Term Loans and optional prepayments
of Revolving Loans (to the extent accompanied by a permanent reduction in the Aggregate Revolving Commitments) in each case made pursuant
to Section 2.06(a) (other than, for the avoidance of doubt, any such prepayments made on the Closing Date in connection with
the amendment and restatement of the Existing Credit Agreement) (1) during such fiscal year (other than any optional prepayments
made prior to the Consolidated Excess Cash Flow Prepayment Date for such fiscal year to the extent such optional prepayments were applied
to reduce the Consolidated Excess Cash Flow prepayment required under this clause (iii) for the prior fiscal year) or (2) following
the end of such fiscal year but prior to the Consolidated Excess Cash Flow Prepayment Date for such fiscal year and, upon the election
of the Company by written notice delivered to the Administrative Agent prior to the Consolidated Excess Cash Flow Prepayment Date for
such period, applied to reduce the Consolidated Excess Cash Flow prepayment required under this clause (iii), in each case, except
to the extent financed with long-term, non-revolving Indebtedness minus (C) the portion of Consolidated Net Income attributable
to any Non-U.S. Subsidiaries (other than Non-U.S. Subsidiaries organized under any jurisdiction of Canada), except to the extent of any
cash actually repatriated to the Company or any of its Restricted Subsidiaries that are U.S. Subsidiaries or Non-U.S. Subsidiaries organized
under any jurisdiction of Canada; provided, however, that if the Consolidated Secured Leverage Ratio as of the last day
of such fiscal year is less than 2.50:1.00, then the Company shall not be required to make any prepayment pursuant to this clause
(iii) for such fiscal year. Any prepayment pursuant to this clause (iii) shall be applied as set forth in clause
(v) below.
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(iv) Debt
Issuances. Within one (1) Business Day of receipt by the Company or any Restricted Subsidiary of the Net Cash Proceeds of any
Debt Issuance, the Company shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an aggregate
amount equal to one hundred percent (100%) of such Net Cash Proceeds. Any prepayment pursuant to this clause (iv) shall be
applied as set forth in clause (v) below.
(v) Application
of Mandatory Prepayments. All amounts required to be paid pursuant to this Section 2.06(b) shall be applied as follows:
(A) with
respect to all amounts prepaid pursuant to Section 2.06(b)(i), first, ratably to the L/C Borrowings and the Swing Line
Loans, second, to the outstanding Revolving Loans, and, third, to Cash Collateralize the remaining L/C Obligations; and
(B) with
respect to all amounts prepaid pursuant to Sections 2.06(b)(ii), (iii) and (iv), first ratably to the
Term Loans (initially, to the first eight principal amortization payments scheduled to be made in direct order of maturity and, thereafter,
on a pro rata basis to the remaining principal amortization payments of the applicable Term Loan), second, ratably to the
L/C Borrowings and the Swing Line Loans, third, to the outstanding Revolving Loans, and fourth, to Cash Collateralize the
remaining L/C Obligations (without a commitment reduction thereunder).
Within the parameters
of the applications set forth above, prepayments shall be applied first to Base Rate Loans, Alternative Currency Daily Rate Loans
and Canadian Prime Rate Loans and then to Term SOFR Loans and Alternative Currency Term Rate Loans in direct order of Interest
Period maturities. All prepayments under this Section 2.06(b) shall be subject to Section 3.05, but otherwise
without premium or penalty except as set forth in Section 2.06(a)(iii) (solely to the extent such prepayment constitutes
a Repricing Event), and shall be accompanied by interest on the principal amount prepaid through the date of prepayment and any additional
amounts required pursuant to Section 2.06(a)(iii) (solely to the extent such prepayment constitutes a Repricing Event).
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2.07 Termination
or Reduction of Commitments.
The Company may,
upon notice to the Administrative Agent, terminate the Aggregate Revolving Commitments, or from time to time permanently reduce the Aggregate
Revolving Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00
a.m. five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in
an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Company shall not terminate or
reduce the Aggregate Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving
Outstandings would exceed the Aggregate Revolving Commitments, and (iv) if, after giving effect to any reduction of the Aggregate
Revolving Commitments, the Alternative Currency Sublimit, Canadian Dollar Sublimit, the Letter of Credit Sublimit or the Swing Line Sublimit
exceeds the amount of the Aggregate Revolving 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 Revolving Commitments.
Subject to clause (iv) of the proviso to the first sentence in this Section 2.07, the amount of any such Aggregate
Revolving Commitment reduction shall not be applied to the Alternative Currency Sublimit, the Canadian Dollar Sublimit, the Letter of
Credit Sublimit or the Swing Line Sublimit unless otherwise specified by the Company. Any reduction of the Aggregate Revolving 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 Revolving Commitments shall be paid on the effective date of such termination.
2.08 Repayment
of Loans.
(a) Revolving
Loans. Each Borrower shall repay to the Lenders on the Maturity Date for Revolving Loans the aggregate principal amount of all Revolving
Loans made to such Borrower outstanding on such date.
(b) Swing
Line Loans. The Company shall repay each Swing Line Loan on the earlier to occur of (i) the date ten (10) Business Days
after such Loan is made and (ii) the Maturity Date for Swing Line Loans.
(c) Term
B Loan. The Company shall repay the outstanding principal amount of the Term B Loan in quarterly installments of $1,250,000 commencing
on September 30, 2024 and on each December 31, March 31, June 30 and September 30 thereafter with the remaining
outstanding principal balance due and payable on the Maturity Date of the Term B Loan (as such installments may hereafter be adjusted
as a result of prepayments made pursuant to Section 2.06 and increases with respect to any increase to the Term B Loan pursuant
to Section 2.16), unless accelerated sooner pursuant to Section 8.02.
(d) Term
A Loan. The Company shall repay the outstanding principal amount of the Term A Loan in quarterly installments of $3,125,000 commencing
on September 30, 2026 and on each December 31, March 31, June 30 and September 30 thereafter with the remaining
outstanding principal balance due and payable on the Maturity Date of the Term A Loan (as such installments may hereafter be adjusted
as a result of prepayments made pursuant to Section 2.06 and increases with respect to any increase to the Term A Loan pursuant
to Section 2.16), unless accelerated sooner pursuant to Section 8.02.
(e) Incremental
Term Loans. The applicable Borrower(s) shall repay any Incremental Term Loan in accordance with the terms of the Incremental
Facility Amendment establishing such Incremental Term Loan, in each case subject to the provisions of Section 2.16(i) or
Section 2.16(j), as applicable.
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2.09 Interest.
(a) Subject
to the provisions of clause (b) below, (i) [reserved]; (ii) each Term SOFR Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to Term SOFR for such Interest Period plus the Applicable
Rate; (iii) each Base Rate 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; (iv) each Alternative Currency Daily Rate Loan shall
bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Alternative
Currency Daily Rate plus the Applicable Rate; (v) each Alternative Currency Term Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to the Alternative Currency Term Rate for such Interest Period
plus the Applicable Rate; (vi) each Canadian Prime Rate Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Canadian Prime Rate plus the Applicable Rate; and (vii) 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) Upon
the occurrence and during the continuance of an Event of Default specified in Section 8.01(a), 8.01(f) or 8.01(g),
the Borrowers shall pay interest on 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.
(ii) Upon
the request of the Required Lenders while any Event of Default arising as a result of a breach of Section 7.11 exists, the
Borrowers 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.
(iii) Accrued
and unpaid interest on past due amounts (including interest on past due interest) 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.
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(d) For
the purposes of the Interest Act (Canada), (i) whenever a rate of interest or fee rate hereunder is calculated on the basis of a
year (the “deemed year”) that contains fewer days than the actual number of days in the calendar year of calculation, such
rate of interest or fee rate shall be expressed as a yearly rate by multiplying such rate of interest or fee rate by the actual number
of days in the calendar year of calculation and dividing it by the number of days in the deemed year, (ii) the principle of deemed
reinvestment of interest shall not apply to any interest calculation hereunder and (iii) the rates of interest stipulated herein
are intended to be nominal rates and not effective rates or yields. Each Loan Party hereby irrevocably agrees not to plead or assert,
whether by way of defense or otherwise, in any proceeding relating to this Agreement and the other Loan Documents, that the interest payable
under this Agreement and the calculation thereof has not been adequately disclosed to it, whether pursuant to section 4 of the Interest
Act (Canada) or any other applicable law or legal principle.
2.10 Fees.
In addition to certain fees described in subsections (h) and (i) of Section 2.03:
(a) Commitment
Fee. The Company shall pay to the Administrative Agent, for the account of each Revolving Lender in accordance with its Applicable
Percentage, a commitment fee (the “Commitment Fee”) in Dollars equal to the product of (i) the Applicable Rate
times (ii) the actual daily amount by which the Aggregate Revolving Commitments exceed the sum of (A) the Outstanding
Amount of all Revolving Loans plus (B) the Outstanding Amount of all L/C Obligations, subject to adjustment as provided in
Section 2.18. The Commitment Fee shall accrue at all times during the Availability Period (and thereafter so long as any
Revolving Loans, Swing Line Loans or L/C Obligations remain outstanding), 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 March, June,
September and December, 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. For purposes of clarification, Swing Line Loans shall not be considered outstanding for purposes of determining
the unused portion of the Aggregate Revolving Commitments.
(b) Other
Fees.
(i) The
Company shall pay to the Arrangers and the Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and
at the times specified in the Fee Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(ii) The
Company shall pay to the Lenders, in Dollars, 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.
2.11 Computation
of Interest and Fees.
All computations of interest
for Base Rate Loans (including Base Rate Loans determined by reference to the Secured Overnight Financing Rate) shall be made on the
basis of a year of three hundred sixty-five (365) or three hundred sixty-six (366) days, as the case may be, and actual days elapsed.
All computations of interest for Alternative Currency Loans shall be made on the basis of a year as set forth on Schedule 2.11
for such Alternative Currency and actual days elapsed. All other computations of fees and interest shall be made on the basis of a three
hundred sixty (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 three hundred sixty-five (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.
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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 Borrowers 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 Borrowers 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 to a Borrower made through the Administrative Agent,
such Borrower shall execute and deliver to such Lender (through the Administrative Agent) a promissory note, which shall evidence such
Lender’s Loans to such Borrower in addition to such accounts or records. Each such promissory note shall be in the form of Exhibit D
(a “Note”). Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount,
currency and maturity of its Loans and payments with respect thereto.
(b) In
addition to the accounts and records referred to in subsection (a) above, each Revolving Lender and the Administrative Agent
shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Revolving 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 Revolving Lender in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest error.
2.13 Payments
Generally; Administrative Agent’s Clawback.
(a) General.
All payments to be made by a Borrower shall be made free and clear of and without condition or deduction for any counterclaim,
defense, recoupment or setoff. Except as otherwise expressly provided herein and except with respect to principal of and interest on
Loans denominated in an Alternative Currency, all payments by a Borrower hereunder shall be made to the Administrative Agent, for
the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in
Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except as otherwise expressly provided
herein, all payments by a Borrower hereunder with respect to principal and interest on Loans denominated in an Alternative Currency
shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the
applicable Administrative Agent’s Office in such Alternative Currency and in Same Day Funds not later than the Applicable Time
specified by the Administrative Agent on the dates specified herein. Without limiting the generality of the foregoing, the
Administrative Agent may require that any payments due under this Agreement be made in the United States or Canada. If, for any
reason, any Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency, such Borrower
shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The Administrative Agent
will promptly distribute to each applicable 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 (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after the Applicable Time specified
by the Administrative Agent in the case of payments in an Alternative Currency, shall in each case 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 any 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.
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(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 Borrowing of Loans (or, in the case of any Borrowing of Base Rate Loans or Canadian Prime Rate Loans, prior
to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s
share of such 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 Borrowing of Base Rate Loans or Canadian Prime 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 applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including
the date such amount is made available to such 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 Overnight Rate, 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 such Borrower,
the interest rate applicable to Base Rate Loans or Canadian Prime Rate Loans or in the case of Alternative Currencies in accordance with
such market practice, in each case, as applicable. If such 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 such Borrower the amount of such interest paid
by such Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount
so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by such Borrower shall be without prejudice
to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Payments
by Borrowers; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from a Borrower
prior to the time at which any payment is due by such Borrower to the Administrative Agent for the account of the Lenders or an L/C
Issuer hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or such L/C Issuer,
as the case may be, the amount due. With respect to any payment that the Administrative Agent makes for the account of the Lenders
or any L/C Issuer hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest
error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) the
applicable Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount
so paid by the applicable Borrower (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise
erroneously made such payment; then each of the Lenders or the applicable L/C Issuer, as the case may be, severally agrees to repay
to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender or such L/C Issuer, in Same Day
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 Overnight Rate.
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A notice of the
Administrative Agent to any Lender or Borrower with respect to any amount owing under this clause (b) shall be conclusive,
absent manifest error.
(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 to any Borrower as provided in the foregoing provisions of this Article II, and such funds are not made available
to such 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 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 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 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 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 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 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 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
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(ii) the
provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of any 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 or Disqualified Institution), (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 Loans or subparticipations
in L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment to the Company or any Subsidiary 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 Designated
Borrowers.
(a) The
Company may at any time, upon not less than fifteen (15) Business Days’ notice from the Company to the Administrative Agent (or
such shorter period as may be agreed by the Administrative Agent in its sole discretion), designate any Restricted Subsidiary of the
Company (an “Applicant Borrower”) as a Designated Borrower to receive Loans hereunder by delivering to the Administrative
Agent (which shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in substantially the form
of Exhibit G (a “Designated Borrower Request and Assumption Agreement”). The parties hereto acknowledge
and agree that prior to any Applicant Borrower becoming entitled to utilize the credit facilities provided for herein (i) the Administrative
Agent and the Lenders that are to provide Commitments and/or Loans in favor of an Applicant Borrower must each agree to such Applicant
Borrower becoming a Designated Borrower and (ii) the Administrative Agent and such Lenders shall have received such supporting resolutions,
incumbency certificates, opinions of counsel and other documents or information, in form, content and scope reasonably satisfactory to
the Administrative Agent, as may be required by the Administrative Agent, and Notes signed by such new Borrowers to the extent any Lender
so requires (the requirements in clauses (i) and (ii) hereof, the “Designated Borrower Requirements”).
If the Designated Borrower Requirements are met, the Administrative Agent shall send a notice in substantially the form of Exhibit H
(a “Designated Borrower Notice”) to the Company and the Lenders specifying the effective date upon which the Applicant
Borrower shall constitute a Designated Borrower for purposes hereof, whereupon each of the Lenders agrees to permit such Designated Borrower
to receive Loans hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Designated Borrower
otherwise shall be a Borrower for all purposes of this Agreement; provided that no Loan Notice or Letter of Credit Application
may be submitted by or on behalf of such Designated Borrower until the date five (5) Business Days after such effective date (or
such shorter period as agreed by the Administrative Agent in its sole discretion).
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(b) Each
Subsidiary of the Company that becomes a “Designated Borrower” pursuant to this Section 2.15 hereby irrevocably
appoints the Company as its agent for all purposes relevant to this Agreement and each of the other Loan Documents, including (i) the
giving and receipt of notices, (ii) the execution and delivery of all documents, instruments and certificates contemplated herein
and all modifications hereto, and (iii) the receipt of the proceeds of any Loans made by the Lenders to any such Designated Borrower
hereunder. Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given
or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given or taken only by the Company, whether
or not any such other Borrower joins therein. Any notice, demand, consent, acknowledgement, direction, certification or other communication
delivered to the Company in accordance with the terms of this Agreement shall be deemed to have been delivered to each Designated Borrower.
(c) The
Company may from time to time, upon not less than fifteen (15) Business Days’ notice from the Company to the Administrative Agent
(or such shorter period as may be agreed by the Administrative Agent in its sole discretion), terminate a Designated Borrower’s
status as such; provided that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable by such
Designated Borrower on account of any Loans made to it, as of the effective date of such termination. The Administrative Agent will promptly
notify the Lenders of any such termination of a Designated Borrower’s status.
2.16 Increase
in Commitments.
The Borrowers may from time
to time add one or more tranches of term loans or increase outstanding tranches of term loans (each an “Incremental Term Facility”)
and/or increase commitments under the Revolving Facility (each such increase, an “Incremental Revolving Increase”;
each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”)
to this Agreement at the option of the Company by an agreement in writing entered into by the Borrowers, the Administrative Agent and
each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (and, for the avoidance of doubt,
shall not require the consent of any other Lender) (each an “Incremental Facility Amendment”); provided that:
(a) the
aggregate principal amount of all Incremental Facilities established under this Section 2.16 following the Second Amendment
Effective Date shall not exceed the Incremental Amount;
(b) no
Event of Default shall have occurred and be continuing at either the time of the request for such Incremental Facility or on the effective
date of such Incremental Facility;
(c) no
existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide
an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(d) each
Incremental Facility shall be in an aggregate principal amount of at least $10,000,000 and in integral multiples of $1,000,000 in excess
thereof; and each Incremental Facility Commitment shall be in a minimum principal amount of at least $1,000,000, in the case of an Incremental
Revolving Increase, and at least $1,000,000 in the case of an Incremental Term Facility (or, in each case, such lesser amounts as the
Administrative Agent may agree);
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(e) each
Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(f) the
Borrowers shall deliver to the Administrative Agent:
(i) a
certificate of each Loan Party dated as of the date of such increase signed by a Responsible Officer of such Loan Party (A) certifying
and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental
Facility and (B) in the case of the Company, certifying that, before and after giving effect to such increase, (1) the representations
and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if qualified
by materiality or reference to Material Adverse Effect, in all respects) on and as of the date of such increase, except to the extent
that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material
respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) as of such earlier date, (2) no
Default or Event of Default exists and (3) such Incremental Facility or Incremental Facilities have been incurred in compliance with
this Agreement;
(ii) such
amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure
the Obligations after giving effect to such Incremental Facility; and
(iii) customary
opinions of legal counsel to the Loan Parties (or, where consistent with local practice, counsel to the Administrative Agent), addressed
to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective
date of such Incremental Facility;
(g) the
Administrative Agent shall have received documentation from each Person providing a commitment in respect of such requested Incremental
Facility or Incremental Facilities (each such commitment, an “Incremental Facility Commitment”) evidencing its Incremental
Facility Commitment and its obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(h) in
the case of an Incremental Term Facility, the Administrative Agent shall have determined in its reasonable discretion whether such Incremental
Term Facility consists of a tranche A term loan (an “Incremental Tranche A Term Facility”) or a tranche B term loan
(an “Incremental Tranche B Term Facility”);
(i) in
the case of an Incremental Term Facility that is an Incremental Tranche A Term Facility:
(i) the
interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term
Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the
final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the
Revolving Loans and the Term A Loan and (2) the final maturity date of any then outstanding Incremental Tranche A Term Loan; and
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(B) the
Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term
A Loan or any then outstanding Incremental Tranche A Term Loan (in each case, as determined by the Administrative Agent in accordance
with customary financial practice);
provided, further, that
clauses (i)(A) and (i)(B) above shall not apply to (1) Inside Maturity Indebtedness or (2) bridge Indebtedness,
so long as, in the case of any such bridge Indebtedness, (i)(x) at the initial maturity of such bridge Indebtedness, such bridge
Indebtedness shall automatically convert to (or would be required to be exchanged for) Indebtedness that complies with clauses (i)(A) and
(i)(B) above, or (y) such bridge Indebtedness is incurred with the intent to convert such bridge Indebtedness to permanent
financing that complies with clauses (i)(A) and (i)(B) above, and (ii) the only prepayments required to be
made on such bridge Indebtedness shall be such prepayments as are customary for similar bridge financings in light of then-prevailing
market conditions (as determined by the Company in consultation with the Administrative Agent);
(ii) the
proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental
Term Facility;
(iii) such
Incremental Term Facility shall share ratably in any prepayments of the Term A Loan and any then outstanding Incremental Tranche A Term
Loan pursuant to Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term
Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for
the then outstanding Term Facilities); and
(iv) if
such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the
terms applicable to the Term A Loan, shall be reasonably acceptable to the Administrative Agent;
(j) in
the case of an Incremental Term Facility that is an Incremental Tranche B Term Facility:
(i) the
interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders
providing such Incremental Term Facility; provided that:
(A) the
final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Term B Loan and (2) the final maturity date of any then
outstanding Incremental Tranche B Term Loan;
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(B) the
Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term
B Loan or any then outstanding Incremental Tranche B Term Loan;
(C) if
the All-In-Yield on such Incremental Term Facility exceeds the All-In-Yield on the Term B Loan or any then outstanding Incremental Tranche
B Term Facility by more than 1/2 of one percent (0.50%) per annum, then the Applicable Rate or fees payable by the
Borrowers with respect to the Term B Loan and each then outstanding Incremental Tranche B Term Facility shall on the effective date of
such Incremental Term Facility be increased to the extent necessary to cause the All-In-Yield on the Term B Loan and each then outstanding
Incremental Tranche B Term Facility to be 1/2 of one percent (0.50%) less than the All-In-Yield on such Incremental
Term Facility (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Borrowers)
(the “MFN Protection”); provided that, notwithstanding anything to the contrary in the foregoing clause (C),
the provisions of this clause (C) shall not apply to any Incremental Tranche B Term Facility established after the first twelve
(12) months following the Closing Date in relation to the Term B Loan or the original issuance date of any then existing Incremental Tranche
B Term Facility, as the case may be;
provided, further, that
clauses (i)(A) and (i)(B) above shall not apply to (1) Inside Maturity Indebtedness and (2) bridge Indebtedness,
so long as (i)(x) at the initial maturity of such bridge Indebtedness, such bridge Indebtedness shall automatically convert to (or
would be required to be exchanged for) Indebtedness that complies with clauses (i)(A) and (i)(B) above, or (y) such
bridge Indebtedness is incurred with the intent to convert such bridge Indebtedness to permanent financing that complies with clauses
(i)(A) and (i)(B) above, and (ii) the only prepayments required to be made on such bridge Indebtedness shall
be such prepayments as are customary for similar bridge financings in light of then-prevailing market conditions (as determined by the
Company in consultation with the Administrative Agent);
(ii) the
proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental
Term Facility;
(iii) such
Incremental Term Facility shall share ratably in any prepayments of the Term B Loan and any then outstanding Incremental Tranche B Term
Loan pursuant to Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term
Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for
the then outstanding Term Facilities); and
(iv) if
such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the
terms applicable to the Term B Loan, shall be reasonably acceptable to the Administrative Agent;
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(k) in
the case of any Incremental Revolving Increase with respect to the Revolving Facility:
(i) such
Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins; provided that, subject
to clause (ii) below, such Incremental Revolving Increase may be issued with a utilization fee and/or additional unused fee
payable solely to the Lenders under such Incremental Revolving Increase) applicable to the Revolving Facility; and
(ii) the
existing Lenders under the Revolving Facility shall on the effective date of such Incremental Revolving Increase make such assignments
(which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans
and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility to the Lenders providing such Incremental
Revolving Increase and the Administrative Agent may make such adjustments to the Register as are necessary so that, after giving effect
to such assignments and adjustments, each Lender under the Revolving Facility (including the Lenders providing such Incremental Revolving
Increase) will hold revolving loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility
equal to its pro rata share thereof;
(l) the
Company shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that after giving effect to
the incurrence of such Incremental Facility on a Pro Forma Basis (without “netting” the cash proceeds of such Incremental
Facility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Company and assuming, in the case of any
Incremental Facility that consists of an Incremental Revolving Increase, the full amount of such Incremental Facility is fully drawn)
the Loan Parties would be in Pro Forma Compliance; and
(m) no
Incremental Facility shall be Guaranteed by any Person other than the Guarantors or secured by any property other than the Collateral;
provided, further,
that the conditions set forth in the foregoing proviso shall be subject to the provisions of Section 1.10 in the case of any
Incremental Term Facility used to finance a Limited Condition Acquisition.
The Incremental Facility Commitments
and credit extensions thereunder shall constitute Commitments and Credit Extensions under, and shall be entitled to all the benefits afforded
by, this Agreement and the other Loan Documents. The Lenders hereby authorize the Administrative Agent to enter into, and the Lenders
agree that this Agreement and the other Loan Documents shall be amended by, such Incremental Facility Amendments to the extent (and only
to the extent) the Administrative Agent deems necessary (including, without limitation, amendments to permit the loans under such Incremental
Facility to be “fungible” (including for purposes of the Code) with any other then-existing Loans under this Agreement) in
order to establish Incremental Facilities on terms consistent with and/or to effect the provisions of this Section 2.16. This
Section 2.16 shall supersede any provisions in Section 10.01 to the contrary. The Administrative Agent shall promptly
notify each Lender as to the effectiveness of each Incremental Facility Amendment.
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2.17 Cash
Collateral.
(a) Certain
Credit Support Events. If (i) an 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, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, (iii) the Company shall be required to provide Cash Collateral pursuant to Section 2.06 or Section 8.02,
or (iv) there shall exist a Defaulting Lender, the Company shall immediately (in the case of clause (iii) above) or
within one (1) Business Day (in all other cases) following any request by the Administrative Agent or an L/C Issuer, provide Cash
Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant
to clause (iv) above, after giving effect to Section 2.18(a)(iv) and any Cash Collateral provided by the
Defaulting Lender). Additionally, if the Administrative Agent notifies the Company at any time that the Outstanding Amount of all L/C
Obligations at such time exceeds the Letter of Credit Sublimit then in effect, then, within two (2) Business Days after receipt
of such notice, the Company shall provide Cash Collateral for the Outstanding Amount of the L/C Obligations in an amount not less than
the amount by which the Outstanding Amount of all L/C Obligations exceeds the Letter of Credit Sublimit.
(b) Grant
of Security Interest. The Company, and to the extent provided by any Defaulting Lender (to the extent not prohibited by applicable
Law in respect of EDC), such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit
of the Administrative Agent, each L/C Issuer and the Lenders, 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 or an L/C Issuer as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral
Amount, the Company 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. All Cash Collateral (other than credit support not constituting funds
subject to deposit) shall be maintained in one or more Controlled Accounts at Bank of America. The Company shall pay on demand therefor
from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance
and disbursement of Cash Collateral.
(c) Application. Notwithstanding
anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.17 or Sections
2.03, 2.06, 2.18 or 8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the
specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender
(to the extent not prohibited by applicable Law in respect of EDC), 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 otherwise be provided for herein.
(d) Release.
Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be
released to the Person providing such Cash Collateral 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 determination by the
Administrative Agent and the L/C Issuers that there exists excess Cash Collateral; provided, however, (x) any
such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject
to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and (y) the
Person providing Cash Collateral and the L/C Issuers may agree that Cash Collateral shall not be released but instead held to
support future anticipated Fronting Exposure or other obligations.
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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. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this
Agreement shall be restricted as set forth in the definition of “Required Lenders”, “Required Pro Rata Facilities Lenders”,
“Required Revolving Lenders” and Section 10.01.
(ii) Defaulting
Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account
of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received
by the Administrative Agent from a 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 such Defaulting Lender
to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting
Lender to the L/C Issuers or Swing Line Lender hereunder; third, to Cash Collateralize the L/C Issuers’ Fronting Exposure
with respect to such Defaulting Lender in accordance with Section 2.17; fourth, as the Company may request (so long
as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as
required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and
the Company, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s
potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuers’
future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement,
in accordance with Section 2.17; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuers or Swing
Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any L/C Issuer or the Swing Line
Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh,
so long as no Default exists, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent
jurisdiction obtained by the Company against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations
under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided
that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender
has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when
the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans
of, and L/C Obligations 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 Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations
and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.18(a)(iv).
Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender or to post Cash Collateral pursuant to this Section 2.18(a)(ii) shall be deemed paid to and redirected
by such Defaulting Lender, and each Lender irrevocably consents hereto.
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(iii) Certain
Fees.
(A) No
Defaulting Lender shall be entitled to receive any fee payable under Section 2.10(a) for any period during which that
Lender is a Defaulting Lender (and the Company shall not be required to pay any such fee that otherwise would have been required to have
been paid to that Defaulting Lender).
(B) Each
Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only
to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral
pursuant to Section 2.17.
(C) With
respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above,
the Company shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender
with respect to such Defaulting Lender’s participation in L/C Obligations that has been reallocated to such Non-Defaulting Lender
pursuant to clause (iv) below, (y) pay to an L/C Issuer the amount of any such fee otherwise payable to such Defaulting
Lender to the extent allocable to such L/C Issuer’s Fronting Exposure to such Defaulting Lender, and (z) not be required to
pay the remaining amount of any such fee.
(iv) Reallocation
of Applicable Percentages to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations
and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages
(calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause
the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment. Subject
to Section 10.21, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against
a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result
of such Non-Defaulting Lender’s increased exposure following such reallocation.
(v) Cash
Collateral, Repayment of Swing Line Loans. If the reallocation described in clause (a)(iv) above cannot, or can only
partially, be effected, the Company shall, without prejudice to any right or remedy available to it hereunder or under applicable Law,
(x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second, Cash
Collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.17.
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(b) Defaulting
Lender Cure. If the Company, the Administrative Agent, Swing Line Lender and the L/C Issuers agree in writing that a Lender is no
longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in
such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that
Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions
as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit
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 such Lender will cease to be a Defaulting Lender; provided that no adjustments
will be made retroactively with respect to fees accrued or payments made by or on behalf of the Company 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.
2.19 Designated
Lenders.
Each of the Administrative
Agent, each L/C Issuer, the Swing Line Lender and each Lender at its option may make any Credit Extension or otherwise perform its obligations
hereunder through any Lending Office (each, a “Designated Lender”); provided that any exercise of such option shall
not affect the obligation of such Borrower to repay any Credit Extension in accordance with the terms of this Agreement. Any Designated
Lender shall be considered a Lender; provided that in the case of an Affiliate or branch of a Lender, such provisions that would
be applicable with respect to Credit Extensions actually provided by such Affiliate or branch of such Lender shall apply to such Affiliate
or branch of such Lender to the same extent as such Lender; provided that for the purposes only of voting in connection with any Loan
Document, any participation by any Designated Lender in any outstanding Credit Extension shall be deemed a participation of such Lender.
2.20 Joint
and Several Liability.
(a) Each
U.S. Borrower that is not a Specified U.S. Obligor and each Non-U.S. Borrower that is not a Specified Non-U.S. Borrower shall be jointly
and severally liable for the Obligations regardless of which Borrower actually receives Credit Extensions hereunder or the amount of such
Credit Extensions received or the manner in which the Administrative Agent, any L/C Issuer or any Lender accounts for such Credit Extensions
on its books and records; provided that the obligations of each such Borrower under the Loan Documents shall be limited to an aggregate
amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws.
(b) Each
Non-U.S. Borrower and each U.S. Borrower that is a Specified U.S. Obligor shall be jointly and severally liable for the Non-U.S.
Obligations regardless of which Borrower actually receives Credit Extensions hereunder or the amount of such Credit Extensions
received or the manner in which the Administrative Agent, any L/C Issuer or any Lender accounts for such Credit Extensions on its
books and records; provided that the obligations of each such Borrower under the Loan Documents shall be limited to an
aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief
Laws.
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2.21 Sustainability
Adjustments.
(a) ESG
Amendment. On or prior to the first anniversary of the Closing Date, the Company, in consultation with the Sustainability Coordinators,
shall be entitled to establish specified key performance indicators (“KPIs”) with respect to certain environmental,
social and governance (“ESG”) targets of the Company and its Subsidiaries (such indicators or targets, “KPI
Metrics”), which KPI Metrics shall be subject to annual thresholds or targets (in either case, such thresholds or targets,
“SPTs”). The Company and the Required Pro Rata Facilities Lenders may amend this Agreement (such amendment, an “ESG
Amendment”) solely for the purpose of incorporating the KPIs and other related provisions (the “ESG Pricing Provisions”)
into this Agreement. Upon the effectiveness of any such ESG Amendment, based on the Company’s performance against the KPIs, certain
adjustments (increase, decrease or no adjustment) of up to 0.075% (7.5 basis points) on the Applicable Rate for the Term A Loan, any
then outstanding Incremental Tranche A Term Loan, Revolving Loans, Swing Line Loans and Letter of Credit Fees and up to 0.01% (1 basis
point) on the Commitment Fee may be made; provided that (i) in no event shall any adjusted Applicable Rate for the Term A
Loan, any then outstanding Incremental Tranche A Term Loan, Revolving Loans, Swing Line Loans and Letter of Credit Fees or the Commitment
Fee be less than zero and (ii) such adjustments shall be made on a per annum basis, and not be cumulative from year to year. The
pricing adjustments pursuant to the KPIs will require, among other things, reporting and validation of the measurement of the KPIs in
a manner that is aligned with the Sustainability Linked Loan Principles and is to be agreed between the Company and the Sustainability
Coordinators (each acting reasonably), including the appointment of a sustainability assurance provider agreed between the Company and
the Sustainability Coordinators (each acting reasonably). Following the effectiveness of the ESG Amendment, any other modification to
the ESG Pricing Provisions shall be subject to the consent of the Company and the Required Pro Rata Facilities Lenders so long as such
modification does not have the effect of reducing the Applicable Rate for Term SOFR Loans, Alternative Currency Loans, Base Rate Loans,
Letter of Credit Fees or the Commitment Fee to a level not otherwise permitted by the ESG Pricing Provisions.
(b) Conflicting
Provisions. This Section 2.21 shall supersede any provisions in Section 10.01 to the contrary.
(c) Applicability
of ESG Pricing Provisions.
(i) For
the avoidance of doubt, any adjustments on the Applicable Rate, Letter of Credit Fees or Commitment Fee shall apply solely to the Applicable
Rate, Letter of Credit Fees or Commitment Fee with respect to the Term A Loan, any then outstanding Incremental Tranche A Term Loan and
the Revolving Facility. No
adjustments related to the ESG Pricing Provisions shall apply to the Applicable Rate of the Term B Loan or any then outstanding Incremental
Tranche B Term Loan.
(ii) Each
party hereto hereby agrees that none of the Revolving Facility, the Term A Loan nor any Incremental Tranche A Term Facility described
in this Agreement are, and shall not be, sustainability-linked loans unless and until the effectiveness of any ESG Amendment.
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ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments
Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any
and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding
for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion of the Administrative
Agent or any Loan Party) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or a Loan Party,
then the Administrative Agent or such Loan Party shall be entitled to make such deduction or withholding, upon the basis of the information
and documentation to be delivered pursuant to clause (e) below.
(ii) If
any Loan Party or the Administrative Agent shall be required by the Code to withhold or deduct any Taxes from any payment, then (A) such
Loan Party or the Administrative Agent shall withhold or make such deductions as are determined by such Loan Party or the Administrative
Agent to be required based upon the information and documentation it has received pursuant to clause (e) below, (B) such
Loan Party or the Administrative 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,
the sum payable by the applicable Loan Party 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 3.01) the applicable Recipient
receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(iii) If
any Loan Party or the Administrative Agent shall be required by any applicable Laws other than the Code to withhold or deduct any Taxes
from any payment, then (A) such Loan Party or the Administrative Agent, as required by such Laws, shall withhold or make such deductions
as are determined by it to be required based upon the information and documentation it has received pursuant to clause (e) below,
(B) such Loan Party or the Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or
deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction
is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party 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 3.01)
the applicable Recipient 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 Loan Parties. Without limiting the provisions of clause (a) above, the Loan Parties shall timely
pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse
it for the payment of, any Other Taxes.
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(c) Tax
Indemnifications.
(i) Each
of the Loan Parties shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof
within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or
asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be
withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the Company by a Lender or an 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 an L/C Issuer, shall be conclusive absent manifest
error. Each of the Loan Parties shall, and does hereby, jointly and severally indemnify the Administrative Agent, and shall make payment
in respect thereof within ten (10) days after demand therefor, for any amount which a Lender or an L/C Issuer for any reason fails
to pay indefeasibly to the Administrative Agent as required pursuant to Section 3.01(c)(ii) below; provided, however,
that no Loan Party shall have any obligation to indemnify any party hereunder for Indemnified Taxes, Other Taxes or any other liability
that arises from such party’s own gross negligence or willful misconduct. To the extent that a Loan Party pays an amount to the
Administrative Agent pursuant to the preceding sentence (a “Back-Up Indemnity Payment”), then upon request of the Company,
the Administrative Agent shall use commercially reasonable efforts to exercise its set-off rights described in the last sentence of clause
(c)(ii) below (on behalf of itself or the Loan Parties) to collect the applicable Back-Up Indemnity Payment amount from the applicable
Lender or L/C Issuer and shall pay the amount so collected to the Company net of any reasonable expenses incurred by the Administrative
Agent in its efforts to collect (through set-off or otherwise) from such Lender or L/C Issuer with respect to clause (c)(ii), below.
(ii) Each
Lender and each L/C Issuer shall, and does hereby, severally indemnify, and shall make payment in respect thereof within ten (10) days
after demand therefor, (A) the Administrative Agent against any Indemnified Taxes attributable to such Lender or such L/C Issuer
(but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without
limiting the obligation of the Loan Party to do so), (B) the Administrative Agent and the Loan Party, as applicable, against any
Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance
of a Participant Register and (C) the Administrative Agent and the Loan Party, as applicable, against any Excluded Taxes attributable
to such Lender or such L/C Issuer, in each case, that are payable or paid by the Administrative Agent or a Loan Party in connection with
any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered
to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender and each 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 such 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).
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(d) Evidence
of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority as provided in this
Section 3.01, the Company shall deliver to the Administrative Agent the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence
of such payment reasonably satisfactory to the Administrative Agent.
(e) Status
of Lenders; Tax Documentation.
(i) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent,
such properly completed and executed documentation prescribed by applicable Law or the taxing authorities of a jurisdiction pursuant to
such applicable Law or reasonably requested by the Company or the Administrative Agent as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Company or the Administrative
Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Company or the Administrative
Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding
or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution
and submission of such documentation (other than such documentation either (A) set forth in Section 3.01(e)(ii)(A), (ii)(B) and
(ii)(D) below or (B) required by applicable law other than the Code or the taxing authorities of the jurisdiction pursuant
to such applicable law to comply with the requirements for exemption or reduction of withholding tax in that jurisdiction) shall not be
required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material
unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without
limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any
Lender that is a U.S. Person shall deliver to the Company, such Borrower(s), and the Administrative Agent on or prior to the date on which
such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company, any such
Borrower, or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup
withholding tax;
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(B) any
Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to the Company, such Borrower(s), 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 Non-U.S. Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company, any such Borrower, or the
Administrative Agent), whichever of the following is applicable:
(1) in
the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect
to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an
exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with
respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing
an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income”
article of such tax treaty;
(2) executed
copies of IRS Form W-8ECI;
(3) in
the case of a Non-U.S. 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 I-1 to the effect that such Non-U.S. Lender is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning
of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN-E (or W-8BEN, as
applicable); or
(4) to
the extent a Non-U.S. Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS
Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-2 or
Exhibit I-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided
that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio
interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-4
on behalf of each such direct and indirect partner;
(C) any
Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to the Company, such Borrower(s) 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 Non-U.S. Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company, any such Borrower or the Administrative
Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Company,
such Borrower(s) or the Administrative Agent to determine the withholding or deduction required to be made; and
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(D) if
a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA (including those contained in
Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Company, such
Borrower(s) and the Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested
by the Company or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by
Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company, any such
Borrower or the Administrative Agent as may be necessary for the Company, such Borrower(s) and the Administrative Agent to
comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under
FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D),
“FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each
Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form
or certification or promptly notify the Company, such Borrower(s) and the Administrative Agent in writing of its legal inability
to do so.
(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 an L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as the case may be. If any Recipient
determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified
by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01, it shall
pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid,
by a Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses
(including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided that each Loan Party, upon the request of the Recipient, agrees to repay the amount paid
over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the
contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to such Loan Party pursuant to this
subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient 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 any Recipient to make available its tax returns (or any other information relating to its taxes that it deems confidential) to
any Loan Party or any other Person.
(g) Survival. Each
party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender or an L/C Issuer,
the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
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3.02 Illegality.
(a) If
any Lender determines in good faith that any Change in 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 perform any of its obligations hereunder or make, maintain or fund
or charge interest with respect to any Credit Extension or to determine or charge interest rates based upon SOFR, Term SOFR or a Relevant
Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, Dollars or any Alternative Currency in the applicable interbank market, then, on notice thereof by such Lender to the Company
through the Administrative Agent, (i) any obligation of such Lender to issue, make, maintain, fund or charge interest with respect
to any such Credit Extension or to make or continue Term SOFR Loans or Alternative Currency Loans, as applicable, in the affected currency
or currencies or, in the case of Loans denominated in Dollars, to convert Base Rate Loans to Term SOFR Loans, or, in the case of Loans
denominated in Canadian Dollars, to convert Canadian Prime Rate Loans to Alternative Currency Term Rate 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 the 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 the Term SOFR component of the Base Rate, in
each case until such Lender notifies the Administrative Agent and the Company that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, (x) the Borrowers shall, upon demand from such Lender (with a copy to the Administrative
Agent), prepay all Alternative Currency Loans in the affected currency or currencies or, if applicable and such Loans are denominated
in Dollars, convert all Term 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 Term SOFR component of the Base
Rate), or if applicable and such Loans are denominated in Canadian Dollars, convert all Alternative Currency Term Rate Loans of such Lender
to Canadian Prime Rate Loans, in each case, either on the last day of the Interest Period therefor, if such Lender may lawfully continue
to maintain such Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans and (y) if such
notice asserts the illegality of such Lender determining or charging interest rates based upon Term SOFR, the Administrative Agent shall
during the period of such suspension compute the Base Rate applicable to such Lender without reference to the 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 Term SOFR. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount
so prepaid or converted.
(b) If,
in any applicable jurisdiction, the Administrative Agent, any L/C Issuer or any Lender or any Designated Lender determines in good faith:
(i) that any Change in Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for the Administrative
Agent, any L/C Issuer or any Lender or its applicable Designated Lender to (A) perform any of its obligations hereunder or under
any other Loan Document, (B) to fund or maintain its participation in any Loan or Letter of Credit or (C) issue, make, maintain,
fund or charge interest or fees with respect to any Credit Extension to a Non-U.S. Borrower, or (ii) the making, funding, maintaining
or continuance of any Loan is or becomes unlawful or impossible as a result of compliance by such Lender with any Sanctions, such Person
shall promptly notify the Administrative Agent, then, upon the Administrative Agent notifying the Company, and until such notice by such
Person is revoked, any obligation of such Person to issue, make, maintain, fund or charge interest or fees with respect to any such Credit
Extension shall be suspended, and to the extent required by applicable Law, cancelled. Upon receipt of such notice, the Loan Parties
shall, (A) repay that Person’s participation in the Loans or other applicable Obligations on the last day of the Interest
Period for each Loan or other Obligation occurring after the Administrative Agent has notified the Company or, if earlier, the date specified
by such Person in the notice delivered to the Administrative Agent (being no earlier than the last day of any applicable grace period
permitted by applicable Law), (B) to the extent applicable to an L/C Issuer, Cash Collateralize that portion of applicable L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized and (C) take all
reasonable actions requested by such Person to mitigate or avoid such illegality.
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(c) Notwithstanding
anything contained in this Article III to the contrary, a Lender shall not be entitled to exercise the rights under Section 3.02
to the extent such Lender is not generally exercising such rights against other similarly situated borrowers under similar circumstances.
3.03 Inability
to Determine Rates.
(a) If
in connection with any request for a Term SOFR Loan or an Alternative Currency Loan or (to the extent applicable) a conversion to or
continuation thereof, (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that
(A) deposits (whether in Dollars, Canadian Dollars or another Alternative Currency) are not being offered to banks in the applicable
interbank market for such currency, for the applicable amount and Interest Period of such Term SOFR Loan or Alternative Currency Loan,
for the applicable amount and Interest Period of such Term SOFR Loan or Alternative Currency Loan, (B)(1) in the case of any Alternative
Currency Loan, no Alternative Currency Successor Rate for the Relevant Rate for the applicable Alternative Currency has been determined
in accordance with Section 3.07(b) and the circumstances under Section 3.07(b)(i) or the Alternative
Currency Scheduled Unavailability Date has occurred with respect to such Relevant Rate (as applicable), or (2) in the case of any
Term SOFR Loan, no Term SOFR Successor Rate has been determined in accordance with Section 3.07(c) and the circumstances
under Section 3.07(c)(i) or the Term SOFR Scheduled Unavailability Date has occurred, (C) adequate and reasonable
means do not exist for determining Term SOFR, the Alternative Currency Term Rate or the Alternative Currency Daily Rate, as applicable,
for any requested Interest Period with respect to a proposed Term SOFR Loan or Alternative Currency Term Rate Loan, or in connection
with an existing or proposed Base Rate Loan or Alternative Currency Daily Rate Loan, or (D) a fundamental change has occurred in
the foreign exchange or interbank markets with respect to an Alternative Currency (including changes in national or international financial,
political or economic conditions or currency exchange rates or exchange controls) (in each case with respect to clause (i), “Impacted
Loans”) or (ii) the Administrative Agent or the Required Lenders determine that for any reason Term SOFR or the Alternative
Currency Term Rate, as applicable, for any requested Interest Period with respect to a proposed Term SOFR Loan or Alternative Currency
Term Rate Loan, or the Alternative Currency Daily Rate with respect to a proposed Alternative Currency Daily Rate Loan for any requested
determination date, does not adequately and fairly reflect the cost to such Lenders of funding such Term SOFR Loan or Alternative Currency
Loan, as applicable, the Administrative Agent will promptly so notify the Company and each Lender. Thereafter, (x) the obligation
of the Lenders to make or maintain Loans in the affected currency or currencies shall be suspended, (to the extent of the affected Loans, Interest
Periods or determination dates, as applicable), and (y) in the event of a determination described in the preceding sentence with
respect to the Term SOFR component of the Base Rate, the utilization of the Term SOFR component in determining the Base Rate shall be
suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt
of such notice, (1) the Company may revoke any pending request for a Borrowing of, conversion to or continuation (as applicable)
of Term SOFR Loans or Alternative Currency Loans (in each case to the extent of the affected Loans, Interest Periods or determination
dates, as applicable), or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans
in the Dollar Equivalent of the amount specified therein and (2) any outstanding affected Loans denominated in an Alternative Currency,
at the Company’s election, shall either (I) be converted into a Borrowing of Base Rate Loans in the Dollar Equivalent of the
amount of such outstanding Alternative Currency Loan immediately, in the case of an Alternative Currency Daily Rate Loan or Canadian
Prime Rate Loan or at the end of the applicable Interest Period, in the case of an Alternative Currency Term Rate Loan, or (II) be
prepaid in full immediately, in the case of an Alternative Currency Daily Rate Loan or Canadian Prime Rate Loan or at the end of the
applicable Interest Period, in the case of an Alternative Currency Term Rate Loan; provided that if no election is made by the
applicable Borrower (x) in the case of an Alternative Currency Daily Rate Loan or Canadian Prime Rate Loan, by the date that is
three (3) Business Days after receipt by the applicable Borrower of such notice or (y) in the case of an Alternative Currency
Term Rate Loan, by the last day of the current Interest Period for the applicable Alternative Currency Term Rate Loan, the Borrower shall
be deemed to have elected clause (I) above.
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(b) Notwithstanding
the foregoing, if the Administrative Agent has made the determination described in clause (a)(i) of this Section 3.03,
the Administrative Agent, in consultation with the Company and the Required Lenders, 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 clause (a)(i) of this Section 3.03,
(ii) the Administrative Agent or the Required Lenders notify the Administrative Agent and the Company 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 Change in 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 Company written notice thereof.
3.04 Increased
Costs; Reserves.
(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 (except any reserve requirement contemplated by Section 3.04(e))
or any L/C Issuer;
(ii) subject
any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (e) of
the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other
obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
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(iii) impose
on any Lender or any L/C Issuer or the applicable interbank market any other condition, cost or expense affecting this Agreement, Term
SOFR Loans or Alternative Currency 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, converting to, continuing or maintaining any Loan (or of
maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such 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 such L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or such L/C Issuer, in each case in an amount deemed by such Lender or such L/C Issuer to be
material, the Company will pay (or cause the applicable Designated Borrower to pay) to such Lender or such L/C Issuer, as the case may
be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs
incurred or reduction suffered; provided that the Borrowers shall not be required to compensate a Lender or an L/C Issuer pursuant
to this Section 3.04(a) for any additional amounts incurred more than ninety (90) days prior to the date that such Lender
or such L/C Issuer notifies the Borrowers of the Change in Law giving rise to such additional amounts and of such Lender’s or such
L/C Issuer’s intention to claim compensation therefor; provided that, if the Change in Law giving rise to such additional
amounts is retroactive, then such 90-day period referred to above shall be extended to include the period of retroactive effect thereof.
(b) Capital
Requirements. If any Lender or any L/C Issuer determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending
Office of such Lender or such Lender’s or such 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 such L/C Issuer’s capital or on the capital
of such Lender’s or such 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 or Swing Line Loans held by, such Lender, or the Letters of Credit
issued by such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s
holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C Issuer’s
policies and the policies of such Lender’s or such L/C Issuer’s holding company with respect to capital adequacy), in each
case in an amount deemed by such Lender or such L/C Issuer to be material, then from time to time the Company will pay (or cause the
applicable Designated Borrower to pay) to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any such reduction suffered.
(c) Certificates
for Reimbursement. A certificate of a Lender or an L/C Issuer (i) setting forth in reasonable detail the amount or amounts necessary
to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in clauses (a) or (b) of
this Section 3.04 and (ii) setting forth in reasonable detail the manner in which such amount was deferred, which shall
be conclusive absent manifest error, and shall be delivered to the Company. The Company shall pay (or cause the applicable Designated
Borrower to pay) such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten (10) days
after receipt thereof. Notwithstanding anything contained in this Article III to the contrary, a Lender shall not be entitled
to any compensation pursuant to Section 3.04 to the extent such Lender is not generally imposing such charges or requesting
such compensation from other similarly situated borrowers under similar circumstances.
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(d) Delay
in Requests. Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions
of this Section 3.04 shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such
compensation; provided that no Borrower shall be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions
of this Section 3.04 for any increased costs incurred or reductions suffered more than nine (9) months prior to the
date that such Lender or such L/C Issuer, as the case may be, notifies the Company of the Change in Law giving rise to such increased
costs or reductions and of such Lender’s or such 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).
(e) Additional
Reserve Requirements. The Company shall pay (or cause the applicable Designated Borrower to pay) to each Lender, as long as such Lender shall be required to comply with any reserve ratio requirement
or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments
or the funding of Alternative Currency Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary,
to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable
on such Loan; provided the Company shall have received at least ten (10) days’ prior notice (with a copy to the Administrative
Agent) of such additional interest or costs from such Lender. If a Lender fails to give notice ten (10) days prior to the relevant
Interest Payment Date, such additional interest or costs shall be due and payable ten (10) days from receipt of such notice.
3.05 Compensation
for Losses. The Company shall compensate (or cause the applicable Designated Borrower to 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 Loan other than a Base Rate Loan, Alternative Currency Daily Rate Loan or Canadian
Prime Rate 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 any Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan, Alternative Currency Daily Rate Loan or Canadian Prime Rate Loan on the date or in the amount notified
by the Company or the applicable Designated Borrower;
(c) any
failure by any Borrower to make payment of any Loan or drawing under any Letter of Credit (or interest due thereon) denominated in an
Alternative Currency on its scheduled due date or any payment thereof in a different currency; or
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(d) any
assignment of a Term SOFR Loan or Alternative Currency Term Rate Loan on a day other than the last day of the Interest Period therefor
as a result of a request by the Company pursuant to Section 10.13;
including any foreign exchange losses and any
loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate
the deposits from which such funds were obtained or from the performance of any foreign exchange contract, but in any event, excluding
loss of anticipated profit. The Company will (or will cause the applicable Borrower to), within ten (10) Business Days after the
Company’s (or applicable Borrower’s) receipt of a certificate of the type described in Section 3.04(c), pay such
Lender such additional amounts as will compensate such Lender for such losses, costs and expenses.
For purposes of calculating
amounts payable by the Company (or the applicable Designated Borrower) to the Lenders under this Section 3.05, (x) [reserved],
(y) each Lender shall be deemed to have funded each Term SOFR Loan made by such Lender at Term SOFR for such Loan by a matching deposit
or other borrowing in the interbank market for such currency for a comparable amount and for a comparable period, whether or not such
Term SOFR Loan was in fact so funded, and (z) each Lender shall be deemed to have funded each Alternative Currency Term Rate Loan
made by such Lender at the Alternative Currency Term Rate for such Loan by a matching deposit or other borrowing in the interbank market
for such currency for a comparable amount and for a comparable period, whether or not such Alternative Currency Term Rate Loan was in
fact so funded.
3.06 Mitigation
Obligations; Replacement of Lenders.
(a) Designation
of a Different Lending Office. If any Lender requests compensation under Section 3.04, or requires any Borrower to pay
any Indemnified Taxes or additional amounts to any Lender, any L/C Issuer, or any Governmental Authority for the account of any Lender
or any L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at
the request of the Company such Lender or such 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 such 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 such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender or such L/C Issuer, as the case may be. The Company hereby agrees to pay (or cause the applicable Designated
Borrower to pay) all reasonable costs and expenses incurred by any Lender or any L/C Issuer in connection with any such designation or
assignment.
(b) Replacement
of Lenders. If any Lender requests compensation under Section 3.04, or if any Borrower is required to pay any Indemnified Taxes or additional amounts 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(a), the Company may replace such Lender in accordance
with Section 10.13.
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3.07 Replacement
of Rates.
(a) [Reserved].
(b) Relevant
Rate for Alternative Currencies. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including
Section 10.01 hereof), if the Administrative Agent determines (which determination shall be conclusive absent manifest error),
or the Company or Required Revolving Lenders notify the Administrative Agent (with, in the case of the Required Revolving Lenders, a copy
to the Company) that the Company or the Required Revolving Lenders (as applicable) have determined, that:
(i) adequate
and reasonable means do not exist for ascertaining the Relevant Rate for an Alternative Currency because none of the tenors of such Relevant
Rate (including any forward-looking term rate thereof) is available or published on a current basis and such circumstances are unlikely
to be temporary; or
(ii) the
Applicable Authority has made a public statement identifying a specific date after which all tenors of the Relevant Rate for an Alternative
Currency (including any forward-looking term rate thereof) shall or will no longer be representative or made available, or used for determining
the interest rate of loans denominated in such Alternative Currency, or shall or will otherwise cease; provided that, in each case,
at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent that will continue
to provide such representative tenor(s) of the Relevant Rate for such Alternative Currency (the latest date on which all tenors of
the Relevant Rate for such Alternative Currency (including any forward-looking term rate thereof) are no longer representative or available
permanently or indefinitely, the “Alternative Currency Scheduled Unavailability Date”); or
(iii) syndicated
loans currently being executed and agented in the U.S., are being executed or amended (as applicable) to incorporate or adopt a new benchmark
interest rate to replace the Relevant Rate for an Alternative Currency;
or if the events or circumstances of
the type described in Section 3.07(b)(i), (ii) or (iii) have occurred with respect to an Alternative
Currency Successor Rate then in effect, then, the Administrative Agent and the Company may amend this Agreement solely for the purpose
of replacing the Relevant Rate for an Alternative Currency or any then current Alternative Currency Successor Rate for an Alternative
Currency in accordance with this Section 3.07(b) with an alternative benchmark rate giving due consideration to any evolving
or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in such Alternative Currency
for such alternative benchmarks, and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration
to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in such Alternative
Currency for such benchmarks (and any such proposed rate, including for the avoidance of doubt, any adjustment thereto, an “Alternative
Currency Successor Rate”), and any such amendment shall become effective at 5:00 p.m. on the fifth (5th) Business
Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Company unless, prior to such time,
Lenders comprising the Required Revolving Lenders have delivered to the Administrative Agent written notice that the Required Revolving
Lenders object to such amendment.
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The Administrative
Agent will promptly (in one or more notices) notify the Company and each Lender of the implementation of any Alternative Currency Successor
Rate.
Any Alternative
Currency Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice
is not administratively feasible for the Administrative Agent, such Alternative Currency Successor Rate shall be applied in a manner as
otherwise reasonably determined by the Administrative Agent.
Notwithstanding
anything else herein to the contrary, if at any time any Alternative Currency Successor Rate as so determined would otherwise be less
than zero, the Alternative Currency Successor Rate will be deemed to be zero for purposes of this Agreement and the other Loan Documents.
In connection with
the implementation of an Alternative Currency Successor Rate, the Administrative Agent will have the right to make Conforming Changes
from time to time in consultation with the Borrowers 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; provided that, with respect to any such amendment so effected, the Administrative Agent shall post each such amendment
implementing such Conforming Changes to the Company and the Lenders reasonably promptly after such amendment becomes effective.
For purposes of
this Section 3.07(b), those Lenders that either have not made, or do not have an obligation under this Agreement to make,
Loans denominated in the applicable Alternative Currency shall be excluded from any determination of Required Revolving Lenders for purposes
of the establishment of an Alternative Currency Successor Rate with respect to such Alternative Currency.
(c) Term
SOFR Replacement Setting. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including Section 10.01
hereof), if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Company or Required
Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Company) that the Company or Required
Lenders (as applicable) have determined that:
(i) adequate
and reasonable means do not exist for ascertaining one (1) month, three (3) month and six (6) month interest periods of
Term SOFR, including because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely
to be temporary; or
(ii) CME
or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent
or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement
identifying a specific date after which one (1) month, three (3) month and six (6) month interest periods of Term SOFR
or the Term SOFR Screen Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of
Dollar denominated syndicated loans, or shall or will otherwise cease; provided that at the time of such statement, there is no
successor administrator that is satisfactory to the Administrative Agent that will continue to provide such interest periods of Term
SOFR after such specific date (the latest date on which one (1) month, three (3) month, and six (6) month interest periods
of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Term SOFR Scheduled Unavailability
Date”);
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then, on a date and time determined
by the Administrative Agent (any such date, a “Term SOFR Replacement Date”), which date shall be at the end of an Interest
Period or on the relevant Interest Payment Date, as applicable, for interest calculated and, solely with respect to clause (ii)
of this Section 3.07(c), no later than the Term SOFR Scheduled Unavailability Date, Term SOFR will be replaced hereunder
and under any Loan Document with Daily Simple SOFR for any payment period for interest calculated that can be determined by the Administrative
Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document
(any such successor rate established pursuant to this Section 3.07(c), a “Term SOFR Successor Rate”, and
together with the Alternative Currency Successor Rate, each a “Successor Rate”).
If the Term SOFR Successor Rate is Daily
Simple SOFR, all interest payments will be payable on a quarterly basis.
Notwithstanding
anything to the contrary herein, (A) if the Administrative Agent determines that Daily Simple SOFR is not available on or prior to
the Term SOFR Replacement Date or (B) if the events or circumstances of the type described in clauses (i) or (ii) of
this Section 3.07(c) have occurred with respect to the Term SOFR Successor Rate then in effect, then, in each case, the
Administrative Agent and the Company may amend this Agreement solely for the purpose of replacing Term SOFR or any then-current Term SOFR
Successor Rate in accordance with this Section 3.07(c) at the end of any Interest Period, relevant Interest Payment Date
or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving
or then-existing convention for similar Dollar denominated credit facilities syndicated and agented in the United States for such alternative
benchmark and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving
or then-existing convention for similar Dollar denominated credit facilities syndicated and agented in the United States for such benchmark.
For the avoidance of doubt, any such proposed rate and adjustments shall constitute a “Term SOFR Successor Rate”. Any such
amendment shall become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent shall have
posted such proposed amendment to all Lenders and the Company unless, prior to such time, Lenders comprising the Required Lenders have
delivered to the Administrative Agent written notice that such Required Lenders object to such amendment.
The Administrative
Agent will promptly (in one or more notices) notify the Company and each Lender of the implementation of any Term SOFR Successor Rate.
Any Term SOFR Successor
Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively
feasible for the Administrative Agent, such Term SOFR Successor Rate shall be applied in a manner as otherwise reasonably determined by
the Administrative Agent.
Notwithstanding
anything else herein, if at any time any Term SOFR Successor Rate as so determined would otherwise be less than zero, such Term SOFR Successor
Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.
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In connection with
the implementation of a Term SOFR Successor Rate, the Administrative Agent will have the right to make Conforming Changes from time to
time in consultation with the Borrowers 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;
provided that with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing
such Conforming Changes to the Company and the Lenders reasonably promptly after such amendment becomes effective.
For purposes of
this Section 3.07(c), those Lenders that either have not made, or do not have an obligation under this Agreement to make,
Term SOFR Loans (or Loans accruing interest by reference to a Term SOFR Successor Rate, as applicable) shall be excluded from any determination
of Required Lenders.
3.08 Survival. All
obligations of the Loan Parties under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, resignation of the Administrative Agent and the
Facility Termination Date.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions
of Initial Credit Extension. The obligation of each 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 reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed
counterparts of this Agreement and each other Loan Document;
(ii) as
to each Borrower, a Note executed by such Borrower in favor of each Lender requesting Notes;
(iii) searches
of filings made under the UCC, the PPSA, the Bank Act (Canada) or other applicable Law, in each case in the jurisdiction of formation
of each Loan Party and each other jurisdiction reasonably deemed appropriate by the Administrative Agent;
(iv) such
UCC and PPSA financing statements or similar documents required under any other applicable Law in the name of each Loan Party for each
appropriate jurisdiction as is necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s
security interest in the Collateral;
(v) except
as provided in Section 6.19, all certificates evidencing any certificated Equity Interests pledged to the Administrative
Agent pursuant to the Security Agreements, together with duly executed in blank, undated stock powers attached thereto (unless, with
respect to the pledged Equity Interests of any Non-U.S. Subsidiary, such stock powers are deemed unnecessary by the Administrative Agent
in its reasonable discretion under the law of the jurisdiction of organization of such Person);
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(vi) searches
of ownership of, and Liens on, United States and Canadian intellectual property registrations and applications of each Loan Party in the
appropriate governmental offices;
(vii) duly
executed notices of grant of security interest in the form required by the Security Agreements as are necessary, in the Administrative
Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States and Canadian intellectual
property registrations and applications of the Loan Parties;
(viii) 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 reasonably 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;
(ix) 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 Borrowers and the Restricted Subsidiaries is validly existing and in good standing in its jurisdiction of
organization or formation;
(x) except
as provided in Section 6.19, a favorable opinion of each of (A) Arnold & Porter Kaye Scholer LLP, U.S. counsel
to the Loan Parties, (B) Blake, Cassels & Graydon LLP, Canadian counsel to the Loan Parties and (C) local counsel to
the Loan Parties (or, where consistent with local practice, counsel to the Administrative Agent) in each other jurisdiction for which
the Administrative Agent has requested a legal opinion, in each case addressed to the Administrative Agent and each Lender, as to such
matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xi) a
certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.01(b),
4.01(c), 4.02(a) and 4.02(b) have been satisfied and (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;
(xii) a
certificate signed by the chief financial officer of the Company certifying that the Company and its Subsidiaries are Solvent on a consolidated
basis after giving effect to the Credit Extensions to be made hereunder on the Closing Date;
(xiii) a
perfection certificate in form and substance reasonably satisfactory to the Administrative Agent and signed by a Responsible Officer of
the Company;
(xiv) evidence
reasonably satisfactory to the Administrative Agent that all insurance required to be maintained pursuant to the Loan Documents has been
obtained and is in effect;
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(xv) copies
of (A) the audited consolidated balance sheets of the Company and its Subsidiaries for the fiscal year ended December 31, 2023
and the related consolidated statements of operations, comprehensive income, changes in equity and cash flows for such fiscal years of
the Company and its Subsidiaries, including the notes thereto, (B) unaudited consolidated financial statements of the Company and
its Subsidiaries for the fiscal quarter ended March 31, 2024, including balance sheets and statements of income or operations, shareholders’
equity and cash flows (the “Interim Financial Statements”) and annual projections for the Company and its Subsidiaries
for the five (5) full fiscal years ending after the Closing Date; and
(xvi) with
respect to the Irish Loan Parties and/or any Collateral Documents governed by Irish law:
(A) evidence
that any process agent has accepted its appointment;
(B) a
written authorization from the Irish Loan Parties, authorizing each solicitor that is serving as Irish counsel to the Administrative Agent
to sign on behalf of the Irish Loan Parties all required security related registration forms required to be delivered to the Companies
Registration Office of Ireland in connection with all or any of the Collateral; and
(C) a
certificate of a Responsible Officer of each Irish Loan Party confirming that (1) Section 82 of the Irish Companies Act has
no application to the entry by such Irish Loan Party into the Loan Documents and to the performance of its obligations thereunder; and
(2) such Irish Loan Party and each other Loan Party constitute a “group of companies” for the purposes of Section 243
of the Irish Companies Act.
(b) Substantially
concurrently herewith, all obligations under the Existing Credit Agreement shall have been repaid in full (other than contingent indemnification
obligations for which no claim or demand has yet been made) and all commitments thereunder shall have been terminated; provided
that the loans and commitments of lenders under the Existing Credit Agreement that will be Lenders hereunder may be “rolled”
into the Loans hereunder or otherwise settled through any cashless settlement mechanism approved by the Borrowers, the Administrative
Agent and the applicable Lender.
(c) There
shall not exist any action, suit, investigation or proceeding pending or, to the knowledge of the Company or any other Loan Party, threatened
in writing in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse
Effect.
(d) The
Company shall have used commercially reasonable efforts (it being understood and agreed that “commercially reasonable efforts”
shall in any event include the payment by the Company of customary rating agency fees and cooperation with information and data requests
by Moody’s and S&P in connection with their ratings process) to provide to the Administrative Agent (i) a public corporate
family rating of the Company from Moody’s, (ii) a public corporate credit rating of the Company from S&P and (iii) a
current, non-credit-enhanced, senior secured long-term debt rating with respect to the Term B Loan from each of S&P and Moody’s
(but not, in the case of any of clauses (i) through (iii), a particular rating).
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(e) The
Administrative Agent and the Lenders shall have completed due diligence of the Loan Parties and their respective Subsidiaries in scope,
and with results, reasonably satisfactory to the Administrative Agent and the Lenders, including OFAC, FCPA and Corruption of Foreign
Public Officials Act (Canada).
(f) The
Administrative Agent and the Lenders shall have received all documentation and other information with respect to each Loan Party requested
in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that any Lender determines is required
by regulatory authorities under applicable Law, including without limitation the PATRIOT Act, the Canadian AML Acts and applicable U.S.
and Canadian law regarding anti-money laundering, anti-terrorist financing, government sanction and “know your customer” matters.
(g) At
least three (3) Business Days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under
the Beneficial Ownership Regulation shall have delivered to each Lender that so requests a Beneficial Ownership Certification in relation
to such Borrower.
(h) Unless
waived by the Administrative Agent, the Company shall have paid (i) all fees and expenses required to be paid on the Closing Date
pursuant to the Fee Letters or other writing between or among the Company and any lender(s) and (ii) 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 and as shall be identified in the invoice provided at least three (3) Business Days prior to the Closing Date (provided
that such estimate shall not thereafter preclude a final settling of accounts between the Company 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 (including a Request for Credit
Extension relating to an advance under an Incremental Facility but excluding a Loan Notice requesting only a conversion of Loans to another
Type or a continuation of Term SOFR Loans, Alternative Currency Term Rate Loans) is subject to the following conditions precedent:
(a) The
representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in
each 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 in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects)
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 in all material respects (or, if qualified by materiality or reference to
Material Adverse Effect, in all respects) as of such earlier date, and except that for purposes of this Section 4.02, the
representations and warranties contained in clauses (a) and (b) of Section 5.05 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) No
Default or Event of 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 applicable L/C Issuer(s) or the Swing Line Lender shall have received a Request for
Credit Extension in accordance with the requirements hereof.
(d) If
the applicable Borrower is a Designated Borrower, then the conditions of Section 2.15 to the designation of such Borrower
as a Designated Borrower shall have been met to the reasonable satisfaction of the Administrative Agent.
(e) In
the case of a Credit Extension to be denominated in an Alternative Currency, such currency remains an Eligible Currency.
(f) There
shall be no restriction, limitation, prohibition or material impediment imposed under Law or by any Governmental Authority as to the proposed
Credit Extension or the repayment thereof or as to rights created under any Loan Document or as to application of the proceeds of the
realization of any such rights.
Notwithstanding anything to
the contrary contained in this Agreement, the conditions set forth in clauses (a) and (b) of this Section 4.02
shall be subject to the provisions of Section 1.10 in the case of any Incremental Term Facility used to finance a Limited
Condition Acquisition.
Each Request for Credit Extension
(other than a Loan Notice requesting only a conversion of Loans to another Type or a continuation of Term SOFR Loans, Alternative Currency
Term Rate Loans) submitted by any Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Each Loan Party jointly and
severally represents and warrants to the Administrative Agent and the Lenders that:
5.01 Existence,
Qualification and Power. Each Loan Party and each Restricted Subsidiary (a) is (i) duly incorporated, organized or formed,
(ii) validly existing and (iii) in good standing (to the extent applicable) under the Laws of the jurisdiction of its incorporation
or organization (and, with respect to any Spanish Guarantor, is not in a situation which would require it to be dissolved according to
Article 363 of the Spanish Companies Law and, if so, the situation has been resolved for the purposes of removing the grounds for
winding up as provided in Article 365 of the Spanish Companies Law), (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and
(to the extent applicable) in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or
(c), to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.
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5.02 Authorization;
No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party,
(a) have been duly authorized by all necessary corporate or other organizational action, and (b) do not and will not (i) contravene
the terms of any of such Person’s Organization Documents; (ii) conflict with or result in any breach or contravention of, or
the creation of any Lien (other than Liens under the Loan Documents) under, or require any payment to be made under (A) any material
Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any Restricted Subsidiary
or (B) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or
its property is subject; or (iii) violate any material Law.
5.03 Governmental
Authorization; Other Consents. No material approval, consent, exemption, authorization, or other material action by, or material notice
to, or material filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution,
delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document other than (a) those
that have already been obtained and are in full force and effect and (b) filings to perfect the Liens created by the Collateral Documents.
5.04 Binding
Effect. 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. This Agreement constitutes, and each other Loan Document when so delivered will constitute,
a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with
its terms, except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws or by general principles
of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
5.05 Financial
Statements; No Material Adverse Effect.
(a) The
Audited Financial Statements (i) were prepared in accordance with the Applicable Accounting Standard consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the financial
condition of the Company and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in
accordance with the Applicable Accounting Standard consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Company and its Subsidiaries
as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.
(b) The
Interim Financial Statements (i) were prepared in accordance with the Applicable Accounting Standard consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial
condition of the Company and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject,
in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments and (iii) show
all material indebtedness and other liabilities, direct or contingent, of the Company and its consolidated Subsidiaries as of the date
of such financial statements, including liabilities for taxes, material commitments and Indebtedness.
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(c) Since
the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse Effect.
5.06 Litigation.
There are not any actions, suits or proceedings at law or in equity or by or before any Governmental Authority now pending or, to
the knowledge of the Company, threatened (and reasonably likely to be commenced) in writing against the Company or any of its Restricted
Subsidiaries or any property or rights of the Company or any of its Restricted Subsidiaries as to which there is a reasonable likelihood
of an adverse determination and which, if adversely determined, would individually or in the aggregate result in a Material Adverse Effect.
5.07 No
Default. Neither any Loan Party nor any Restricted Subsidiary thereof is in default under or with respect to any Contractual Obligation
that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred
and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
5.08 Ownership
of Property; Liens. Each Loan Party and each Restricted Subsidiary has good record and marketable title in fee simple (or similar
concept under the Law of any applicable jurisdiction) to, or valid leasehold interests (or similar concept under the Law of any applicable
jurisdiction) in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of the Loan Parties and
the Restricted Subsidiaries is subject to no Liens, other than Permitted Liens.
5.09 Environmental
Compliance. The Loan Parties and their Restricted Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability
or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and as a result thereof
the Company has reasonably concluded that such Environmental Laws and claims would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
5.10 Insurance.
The properties of the Company and the Restricted Subsidiaries are insured with financially sound and reputable insurance companies not
Affiliates of the Company, 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 applicable Loan Party operates.
5.11 Taxes. The
Company and the Restricted Subsidiaries have filed all federal, state, provincial and territorial income tax returns and other tax returns and reports required to be filed, except where such failure to file
would not reasonably be likely to have a Material Adverse Effect, and have paid all federal, state, provincial and territorial income
and other taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise
due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with the Applicable Accounting Standard as in effect on such date or in respect of which such
failure to pay would not reasonably be likely to have a Material Adverse Effect. To the knowledge of the Company and its Restricted Subsidiaries,
there is no proposed Tax assessment against the Company or any Restricted Subsidiary that would, if made, have a Material Adverse Effect.
Neither the Company nor any Restricted Subsidiary is party to any tax sharing agreement.
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5.12 ERISA
and Canadian Pension Plan Compliance.
(a) Each
Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state laws. Each
Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination
letter from the IRS to the effect that the form of such Pension Plan is qualified under Section 401(a) of the Code and the trust
related thereto has been determined by the IRS to be exempt from federal income tax under Section 501(a) of the Code, or an
application for such a letter is currently being processed by the IRS. To the best knowledge of the Company, nothing has occurred that
would prevent or cause the loss of such tax-qualified status.
(b) There
are no pending or, to the best knowledge of the Company, threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or would reasonably be expected to
result in a Material Adverse Effect.
(c) Other
than as would not reasonably be expected to result in a Material Adverse Effect, (i) no ERISA Event has occurred, and neither the
Company nor, to the knowledge of the Borrowers, any ERISA Affiliate is aware of any fact, event or circumstance that would reasonably
be expected to constitute or result in an ERISA Event with respect to any Pension Plan or Multiemployer Plan; (ii) the Company and,
to the knowledge of the Borrowers, each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect
of each Pension Plan and Multiemployer Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been
applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage
(as defined in Section 430(d)(2) of the Code) is sixty percent (60%) or higher and neither the Company nor, to the knowledge
of the Borrowers, any ERISA Affiliate knows of any facts or circumstances that would reasonably be expected to cause the funding target
attainment percentage for any such plan to drop below sixty percent (60%) as of the most recent valuation date; (iv) neither the
Company nor, to the knowledge of the Borrowers any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of
premiums, and there are no premium payments which have become due that are unpaid; (v) neither the Company nor any ERISA Affiliate
has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension
Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that would
reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.
(d) As
of the Second Amendment Effective Date none of the Borrowers is or will be using “plan assets” (within the meaning of 29 CFR
§ 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters
of Credit or the Commitments.
(e) (i) Each
Canadian Pension Plan is in compliance in all material respects with the applicable provisions of all applicable Laws and (ii) each
Canadian Pension Plan has received a confirmation of registration from the Canada Revenue Agency and, to the best knowledge of the Company,
nothing has occurred which would prevent, or cause the loss of, such registration. Each Loan Party and each Subsidiary has made all required
contributions to each Canadian Pension Plan.
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(f) There
are no pending or, to the best knowledge of the Company, threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Canadian Pension Plan that could reasonably be expected to have a Material Adverse Effect. There has been no violation
of fiduciary duty with respect to any Canadian Pension Plan that has resulted or would reasonably be expected to result in a Material
Adverse Effect.
(g) No
Loan Party or Subsidiary maintains, contributes to, or has any liability or contingent liability with respect to, a Canadian Defined Benefit
Pension Plan.
5.13 Subsidiaries;
Equity Interests. Set forth on Schedule 5.13 is a complete and accurate list as of the Second Amendment Effective Date of each
Subsidiary, together with (a) such Subsidiary’s jurisdiction of organization or incorporation (as the case may be), (b) the
number of shares of each class of Equity Interests of such Subsidiary outstanding, (c) the number and percentage of each class of
outstanding shares of such Subsidiary owned (directly or indirectly) by the Company or any Subsidiary and (d) an indication as to
whether such Subsidiary is a Restricted Subsidiary or an Unrestricted Subsidiary, an Excluded Subsidiary (and, if so, the type (e.g.,
an Immaterial Subsidiary) of such Excluded Subsidiary), a CFC Holdco and/or a CFC. The outstanding Equity Interests of each Restricted
Subsidiary are validly issued, fully paid and non-assessable (to the extent applicable) and are owned by a Loan Party in the amounts specified
on Schedule 5.13 free and clear of all Liens other than the Liens created pursuant to the applicable Collateral Documents and inchoate
and other non-consensual Permitted Liens.
5.14 Margin
Regulations; Investment Company Act.
(a) No
Loan Party is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock
and the Credit Extensions hereunder will not be used to purchase or carry margin stock in violation of Regulation U or to extend credit
to others for the purpose of purchasing or carrying margin stock or for any purpose that would violate the provisions of Regulation X
issued by the FRB, as in effect from time to time.
(b) None
of the Company, any Person Controlling the Company, or any Restricted Subsidiary is or is required to be registered as an “investment
company” under the Investment Company Act of 1940.
5.15 Disclosure.
No report, financial statement, certificate or other written information furnished (other than projected financial information and
information of a general economic or industry-specific nature) by or on behalf of any Loan Party to the Administrative Agent or any Lender
in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other
Loan Document (in each case, as modified or supplemented by other information so furnished), when taken as a whole, contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein not materially misleading in light
of the circumstances under which they were made; provided that, with respect to projected financial information, the Company represents
only that such projected financial information was prepared in good faith based upon assumptions believed to be reasonable at the time
and estimates as of the date of preparation (it being understood and agreed that such projections are as to future events and are not
to be viewed as facts and are subject to significant uncertainties and contingencies, many of which are beyond the control of the Company
and its Subsidiaries, that no assurance can be given that any particular projection will be realized, that actual results during the
period or periods covered by any such projected financial information may differ significantly from the projected results and such differences
may be material, and that such projected financial information is not a representation by the Company or any of its Subsidiaries that
such projections will be achieved). As of the Second Amendment Effective Date, to the knowledge of the Company the information included
in the Beneficial Ownership Certification, if applicable, is true and correct in all respects.
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5.16 Compliance
with Laws. Each Loan Party and each Restricted Subsidiary is in compliance in all material respects
with the requirements of all applicable Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except
in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect.
5.17 Taxpayer
Identification Number; Other Identifying Information. The true and correct U.S. taxpayer identification number of the Initial U.S.
Borrower and each Designated Borrower that is a U.S. Subsidiary and a party hereto on the Second Amendment Effective Date is set forth
on Schedule 5.17. The true and correct unique corporate or other identification number of each Canadian Borrower and each Designated
Borrower that is a Non-U.S. Subsidiary and a party hereto on the Second Amendment Effective Date that has been issued by its jurisdiction
of organization and the name of such jurisdiction are set forth on Schedule 5.17.
5.18 Casualty,
Etc. As of the Second Amendment Effective Date, neither the businesses nor the properties of any Loan Party or any of its Restricted
Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that, either individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
5.19 Solvency.
The Company and its Restricted Subsidiaries, on a consolidated basis, are Solvent.
5.20 Intellectual
Property; Licenses, Etc. The Company and its Restricted Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses except where and to the extent any lack
of ownership or possession would not reasonably be expected to have a Material Adverse Effect, without conflict with the rights of any
other Person except where and to the extent any such conflict would not reasonably be expected to have a Material Adverse Effect. To the
knowledge of the Company, no slogan or other advertising device, product, process, method, substance, part or other material now employed,
or now contemplated to be employed, by the Company or any Loan Party infringes upon any rights held by any other Person that would reasonably
be expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the knowledge of
the Borrowers, threatened in writing (and reasonably likely to be commenced), which, either individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect.
5.21 Labor
Matters. Except as set forth on Schedule 5.21, there are no collective bargaining agreements or Multiemployer Plans covering
the employees of the Company or any Restricted Subsidiary as of the Second Amendment Effective Date and neither the Company nor any Restricted
Subsidiary has suffered any material strikes, walkouts, work stoppages or other labor difficulty in the three (3) years preceding
the Second Amendment Effective Date.
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5.22 OFAC.
Neither the Company, nor any of its Subsidiaries, nor, to the knowledge of the Company and its Subsidiaries, any director, officer,
employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by any individual
or entity that is (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially Designated
nationals, the Canadian Sanctions List, FCDO’s UK Sanctions List, or any similar list enforced by any other relevant sanctions authority
or (iii) located, organized or resident in a Designated Jurisdiction. The Loan Parties have instituted and maintained policies and
procedures designed to promote and achieve compliance with the foregoing.
5.23 Anti-Corruption
Laws.
To the extent applicable,
the Company and its Subsidiaries have conducted their businesses in compliance in all material respects with the United States Foreign
Corrupt Practices Act of 1977, the Corruption of Foreign Public Officials Act (Canada), the UK Bribery Act 2010, the Criminal Justice
(Corruption Offences) Act 2018 of Ireland, the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 to 2021 of Ireland,
and, to the extent applicable, other similar anti-corruption legislation in other jurisdictions and have instituted and maintained policies
and procedures designed to promote and achieve compliance with such laws.
5.24 Collateral
Documents.
The Collateral Documents create
valid security interests in, and Liens on, the Collateral purported to be covered thereby, which security interests and Liens are currently
(or, upon delivery of Collateral to the Administrative Agent and/or when the appropriate filings or other actions required by the applicable
Collateral Document or by applicable law have been filed or taken, will be) perfected security interests and Liens (to the extent such
security interests and Liens are required to be perfected under the terms of the Collateral Documents) to the extent such security interests
and Liens can be perfected by such delivery, filings and actions, prior to all other Liens other than Permitted Liens.
5.25 Representations
as to Non-U.S. Obligors.
Each of the Company and each
Non-U.S. Obligor represents and warrants to the Administrative Agent and the Lenders that:
(a) Such
Non-U.S. Obligor is subject to civil and commercial Laws with respect to its obligations under this Agreement and the other Loan Documents
to which it is a party (collectively as to such Non-U.S. Obligor, the “Applicable Non-U.S. Obligor Documents”), and
the execution, delivery and performance by such Non-U.S. Obligor of the Applicable Non-U.S. Obligor Documents constitute and will constitute
private and commercial acts and not public or governmental acts. Neither such Non-U.S. Obligor nor any of its property has any immunity
from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment
in aid of execution, execution or otherwise) under the laws of the jurisdiction in which such Non-U.S. Obligor is organized or incorporated
(as the case may be) and existing in respect of its obligations under the Applicable Non-U.S. Obligor Documents.
(b) The
Applicable Non-U.S. Obligor Documents are in proper legal form under the Laws of the jurisdiction in which such Non-U.S. Obligor is organized
or incorporated (as the case may be) and existing for the enforcement thereof against such Non-U.S. Obligor under the Laws of such jurisdiction,
and to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Non-U.S. Obligor Documents.
It is not necessary to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Non-U.S.
Obligor Documents that the Applicable Non-U.S. Obligor Documents be filed, registered or recorded with, or executed or notarized before,
any court or other authority in the jurisdiction in which such Non-U.S. Obligor is organized or incorporated (as the case may be) and
existing or that any registration charge or stamp or similar tax be paid on or in respect of the Applicable Non-U.S. Obligor Documents
or any other document, except for (i) any such filing, registration, recording, execution or notarization as has been or will promptly
be made or is not required to be made until the Applicable Non-U.S. Obligor Document or any other document is sought to be enforced and
(ii) any charge or tax as has been or will be timely paid.
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(c) There
is no tax, levy, impost, duty, fee, assessment or other governmental charge, or any deduction or withholding, imposed by any Governmental
Authority in or of the jurisdiction in which such Non-U.S. Obligor is organized or incorporated (as the case may be) and existing on or
by virtue of the execution or delivery of the Applicable Non-U.S. Obligor Documents, except as has been disclosed to the Administrative
Agent.
(d) The
execution, delivery and performance of the Applicable Non-U.S. Obligor Documents executed by such Non-U.S. Obligor are, under applicable
foreign exchange control regulations of the jurisdiction in which such Non-U.S. Obligor is organized or incorporated (as the case may
be) and existing, not subject to any notification or authorization except (i) such as have been made or obtained or (ii) such
as cannot be made or obtained until a later date (provided that any notification or authorization described in clause (ii) shall
be made or obtained as soon as is reasonably practicable).
(e) With
respect to each Loan Party organized in Barbados (each, a “Barbados Loan Party”), all relevant licenses, approvals
and permits required under applicable Barbados Law for such Barbados Loan Party to make payments outside of Barbados, including any required
pursuant to any applicable Barbados exchange controls, have been obtained and are in place to the extent necessary to permit such Barbados
Loan Party to make all payments required thereof pursuant to this Agreement and the other Loan Documents to which it is required to be
a party.
(f) With
respect to each Loan Party incorporated in Malaysia (a “Malaysian Loan Party”), all consents, approvals, authorizations,
licenses, exemptions, permissions, and orders which are required by any Governmental Authority or any other party, including to the extent
applicable Bank Negara Malaysia (Central Bank of Malaysia), for such Malaysian Loan Party to execute, deliver and perform its obligations
under this Agreement and each other Loan Document to which it is required to be a party and to ensure that each such Loan Document shall
be legal, valid and enforceable against such Malaysian Loan Party, have been duly obtained and are in full force and effect.
(g) With
respect to each Irish Loan Party, such Irish Loan Party is a member of the same group of companies consisting of the Company, as a holding
company, and its subsidiaries (each within the meaning of Section 8 of the Irish Companies Act) for the purposes of Section 239
of the Irish Companies Act.
5.26 Affected
Financial Institutions.
No Loan Party is an Affected Financial Institution.
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5.27 Covered
Entities.
No Loan Party is a Covered Entity.
5.28 Centre
of Main Interests.
For the purposes of the EU
Insolvency Regulation, the centre of main interest (as that term is used in Article 3(1) of the EU Insolvency Regulation) of
each Loan Party which is organized or incorporated under the laws of a member state of the European Union is situated in its jurisdiction
of incorporation and it has no “establishment” (as that term is used in Article 2(10) of the EU Insolvency Regulation)
in any other jurisdiction.
5.29 Outbound
Investment Rules.
Neither the Company nor any
of its Subsidiaries is a “covered foreign person” as that term is used in the Outbound Investment Rules. Neither the Company
nor any of its Subsidiaries currently engages, or has any present intention to engage in the future, directly or indirectly, in (a) a
“covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules,
(b) any activity or transaction that would constitute a “covered activity” or a “covered transaction”, as
each such term is defined in the Outbound Investment Rules, if the Company or such Subsidiary were a U.S. Person (Outbound Investments),
or (c) any other activity that would cause the Administrative Agent or any Lender to be in violation of the Outbound Investment Rules or
cause the Administrative Agent or any Lender to be legally prohibited by the Outbound Investment Rules from performing under this
Agreement or any other Loan Document.
ARTICLE VI.
AFFIRMATIVE COVENANTS
Each Loan Party hereby covenants
and agrees that such Loan Party shall, and shall cause each of its Restricted Subsidiaries (and, with respect to Section 6.16,
its Unrestricted Subsidiaries) to:
6.01 Financial
Statements. Deliver to the Administrative Agent (who will make such documents available to each Lender), in form and detail reasonably
satisfactory to the Administrative Agent and the Required Lenders:
(a) as
soon as available, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company a consolidated
balance sheet of the Company and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations,
comprehensive income, changes in shareholders’ equity, and cash flows for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year (it being understood and agreed that, for the first audited financial statements delivered
after the Accounting Change Date, such financial statements shall be in comparative form against GAAP Adjusted Financial Statements for
the fiscal year ended immediately preceding the fiscal year covered by such audited financial statements delivered after the Accounting
Change Date), all in reasonable detail and prepared in accordance with the Applicable Accounting Standard, audited and accompanied by
a report and opinion of KPMG LLP or another independent certified public accountant of nationally recognized standing reasonably acceptable
to the Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall
not be subject to any “going concern” or like qualification or exception (other than any qualification or exception in the
last year of this Agreement and due solely to the impending maturity of the Loans and Commitments hereunder) or any qualification or
exception as to the scope of such audit; and
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(b) as
soon as available, but in any event within sixty (60) days after the end of each of the first three (3) fiscal quarters of each fiscal
year of the Company, a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal quarter, the related
consolidated statements of operations, comprehensive income, shareholders’ equity and cash flows for such fiscal quarter and for
the portion of the Company’s fiscal year then ended, in each case setting forth in comparative form the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year (it being understood and agreed that,
for the quarterly financial statements delivered for the fiscal quarters ending March 31, June 30 and September 30 occurring
in the fiscal year in which the Accounting Change Date shall have occurred, such financial statements shall be in comparative form against
GAAP Adjusted Financial Statements for such fiscal quarters ending March 31, June 30 and September 30 in the fiscal year
occurring immediately prior to the Accounting Change Date, as applicable), all in reasonable detail, certified by a Responsible Officer
of the Company as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Company
and its Restricted Subsidiaries in accordance with the Applicable Accounting Standard, subject only to normal year-end audit adjustments
and the absence of footnotes.
As to any information
contained in materials furnished pursuant to Section 6.02(c), the Company shall not be separately required to furnish such
information under subsection (a) or (b) above, but the foregoing shall not be in derogation of the obligation
of the Company to furnish the information and materials described in subsections (a) and (b) above at the times
specified therein.
6.02 Certificates;
Other Information. Deliver to the Administrative Agent (who will make such documents available to each Lender), in form and detail
reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently
with the delivery of the financial statements referred to in Sections 6.01(a) and (b), (i) a duly completed Compliance
Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Company (which delivery may,
unless the Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email and shall
be deemed to be an original authentic counterpart thereof for all purposes) and (ii) a report signed by a Responsible Officer of
the Company that supplements Schedule 5.13 such that, as supplemented, such Schedule would be accurate and complete in all material
respects as of the last day of the period covered by the Compliance Certificate described in the foregoing clause (i) (provided
that if no supplement is required to cause such Schedule to be accurate and complete in all material respects as of such date, then the
Company shall not be required to deliver such a report);
(b) concurrently
with the delivery of the financial statements referred to in Sections 6.01(a) and (b), for any period in which there
exist any Unrestricted Subsidiaries, unaudited consolidating financial statements reflecting adjustments necessary to eliminate the accounts
of Unrestricted Subsidiaries (if any) from such financial statements delivered pursuant to Section 6.01(a) or (b),
as applicable, all in reasonable detail and certified by a Responsible Officer of the Company as fairly presenting in all material respects
the financial condition, results of operations, comprehensive income, shareholders’ equity and cash flows of the Company and its
Restricted Subsidiaries in accordance with the Applicable Accounting Standard, subject only to normal year-end audit adjustments and
the absence of footnotes;
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(c) promptly
after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the
stockholders of the Company, and copies of all annual, regular, periodic and special reports and registration statements which the Company
may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, or under any
other applicable securities Laws, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly
following any request therefor, provide information and documentation reasonably requested by the Administrative Agent or any Lender for
purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including,
without limitation, the PATRIOT Act, the Beneficial Ownership Regulation and the Canadian AML Acts;
(e) (i) prior
to, or contemporaneously with, delivery of financial statements pursuant to Section 6.01(a) for the fiscal year of the
Company immediately preceding the fiscal year of the Company in which the Accounting Change Date occurs, deliver to the Administrative
Agent the GAAP Adjusted Annual Financial Statements and (ii) prior to, or contemporaneously with, delivery of financial statements
pursuant to Section 6.01(b) for each fiscal quarter of the Company during the fiscal year in which the Accounting Change
Date occurs, deliver to the Administrative Agent GAAP Adjusted Interim Financial Statements for the applicable corresponding fiscal quarter
of the fiscal year of the Company immediately preceding the Accounting Change Date; and
(f) promptly,
such additional information regarding the business, financial or corporate affairs of the Company or any Subsidiary, or compliance with
the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request.
Documents required
to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to the extent any
such documents are included in materials otherwise filed with the SEC or any national securities exchange) may be delivered electronically
and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides
a link thereto on the Company’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on
which such documents (A) are available on the website of the SEC at http://www.sec.gov, (B) are available on the website
of the Canadian Securities Administrators at https://www.sedar.com or (C) are posted on the Company’s behalf on another
Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided that, in the case of documents that are not available on http://www.sec.gov
or https://www.sedar.com, (x) the Company shall deliver paper copies (which may include .pdf files) of such documents to
the Administrative Agent or any Lender upon its request to the Company to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and (y) the Company shall notify (which may be by facsimile
or electronic mail) the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents. The Administrative
Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Company with any such request by a Lender for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
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The Company hereby
acknowledges that (a) the Administrative Agent and/or each Arranger may, but shall not be obligated to, make available to the Lenders
and any L/C Issuer materials and/or information provided by or on behalf of the Company hereunder (collectively, “Borrower Materials”)
by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “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 Company 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 Company 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 Company shall be deemed to have authorized the Administrative Agent, the Arranger,
the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to
the Company or its securities for purposes of Canadian federal and provincial securities laws and 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 Arrangers 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.” Notwithstanding the foregoing, the Company shall not be under any obligation
to mark any Borrower Materials “PUBLIC.”
6.03 Notices.
Promptly notify the Administrative Agent (who will make such notice available to each Lender):
(a) of
the occurrence of any Default;
(b) of
any matter that has resulted or would reasonably be expected to result in a Material Adverse Effect;
(c) of
the occurrence of any ERISA Event or any material failure by any Loan Party or any Subsidiary to perform its obligations under a Canadian
Pension Plan;
(d) of
the acquisition, as a result of the consummation of a Permitted Acquisition, of any Canadian Defined Benefit Pension Plan and copies of
all documentation relating thereto and, thereafter, promptly after any request by the Administrative Agent or any Lender, copies of all
actuarial valuation reports in respect thereof;
(e) of
any material change in accounting policies or financial reporting practices by the Company or any Subsidiary;
(f) the
entering into by the Company or any Subsidiary of any Permitted Securitization Transaction (together with such information regarding such
Permitted Securitization Transaction as the Administrative Agent or any Lender may reasonably request);
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(g) of
the Accounting Change Date; and
(h) of
any announcement by S&P, Moody’s or Fitch of the establishment of, or any change in, a Corporate Rating.
Each notice pursuant to this
Section 6.03 (other than Section 6.03(h)) shall be accompanied by a statement of a Responsible Officer of the
Company setting forth details of the occurrence referred to therein and stating what action the Company has taken and proposes to take
with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions
of this Agreement and any other Loan Document that have been breached.
6.04 Payment
of Obligations. Pay and discharge as the same shall become due and payable, all its material obligations and liabilities, including
(a) all Tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are
being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with the Applicable
Accounting Standard are being maintained by the Company or such Restricted Subsidiary or in respect of which such failure to pay would
not reasonably be likely to have a Material Adverse Effect; and (b) all lawful claims which, if unpaid, would by law become a Lien
upon its property (other than Permitted Liens).
6.05 Preservation
of Existence, Etc.
(a) Preserve,
renew and maintain in full force and effect its legal existence and good standing (to the extent applicable) under the Laws of the jurisdiction
of its organization except in a transaction permitted by Sections 7.04 or 7.05;
(b) take
all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect; and
(c) preserve
or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which would reasonably be expected
to have a Material Adverse Effect.
6.06 Maintenance
of Properties.
(a) Maintain,
preserve and protect all of its material properties and equipment necessary in the normal operation of its business in good working order
and condition, ordinary wear and tear and damage by casualty or condemnation excepted; and
(b) make
all necessary repairs thereto and renewals and replacements thereof, except to the extent that (i) any of such properties or equipment
are obsolete or are being replaced in the ordinary course of business, (ii) the Company or any of its Restricted Subsidiaries reasonably
determine that the continued maintenance, repaid, renewal or replacement of any of its properties or equipment is no longer commercially
practicable and is not in the best interests of the Company or any of its Restricted Subsidiaries, or (iii) where the failure to
do so would not reasonably be expected to have a Material Adverse Effect.
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6.07 Maintenance
and Evidence of Insurance.
(a) Maintenance
of Insurance. Maintain with financially sound and reputable insurance companies not Affiliates of the Company or any Subsidiary,
insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by
such other Persons, including, without limitation, liability, casualty, property, terrorism and business interruption insurance.
(b) Evidence
of Insurance. Cause the Administrative Agent to be named as lenders’ loss payable or loss payee (other than with respect to
business interruption insurance) and as mortgagee, as its interest may appear, and/or additional insured with respect of any such insurance
providing liability coverage or coverage in respect of any Collateral, and cause, unless otherwise agreed to by the Administrative Agent
and, to the extent available and customarily agreed to by the relevant insurance provider, each provider of any such insurance to agree,
by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Administrative Agent that it will
give the Administrative Agent thirty (30) days’ prior written notice before any such policy or policies shall be altered or cancelled
(or ten (10) days’ prior notice in the case of cancellation due to the nonpayment of premiums or, with respect to insurance
premiums issued by non-U.S. insurance companies, to the extent available, as substantially similar notice as is practicable). Annually,
upon expiration of current insurance coverage, the Loan Parties shall provide, or cause to be provided, to the Administrative Agent,
such evidence of insurance as required by the Administrative Agent, including, but not limited to: (i) evidence of such insurance
policies, (ii) declaration pages for each insurance policy and (iii) to the extent available from the relevant insurance
provider, lender’s loss payable endorsement (or other evidence that the Administrative Agent has substantially the same or similar
standing under any insurance policies issued by non-U.S. insurance companies) if the Administrative Agent for the benefit of the Secured
Parties (or in its own name as creditor of Parallel Debt, as applicable) is not on the declarations page for such policy. As requested
by the Administrative Agent, the Loan Parties agree to deliver to the Administrative Agent an Authorization to Share Insurance Information.
6.08 Compliance
with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable
to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or
decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith would
not reasonably be expected to have a Material Adverse Effect.
6.09 Books
and Records. (a) Maintain proper books of record and account, in which full, materially true and correct entries in conformity
with the Applicable Accounting Standard as in effect on such date consistently applied shall be made of all material financial transactions
and matters involving the assets and business of the Company or such Restricted Subsidiary, as the case may be, and (b) maintain
such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Company or such Restricted Subsidiary, as the case may be.
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6.10 Inspection
Rights. Upon the request of the Administrative Agent on behalf of any Lender, permit representatives and independent contractors
of the Administrative Agent (which may include representatives of Lenders) to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants (provided, that one or more representatives of the Company
shall be invited (with reasonable advance notice) to attend any such meetings with such independent public accountants (provided
that the failure of any such representatives of the Company to attend any such meeting shall not preclude such meeting from occurring)),
all at the expense of the Lenders when no Event of Default exists, and at such reasonable times during normal business hours, upon reasonable
advance notice to the Company and no more than once per year; provided, however, that when an Event of Default exists,
the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing
at the expense of the Company at any time during normal business hours and without advance notice; provided, further that
notwithstanding anything to the contrary herein, neither the Company nor any of its Restricted Subsidiaries shall be required to disclose,
permit the inspection, examination or making of copies of or taking abstracts from, or discuss any document, information, or other matter
(a) that constitutes non-financial trade secrets or non-financial proprietary information of the Company and its Restricted Subsidiaries
and/or any of its customers and/or suppliers, (b) in respect of which disclosure to the Administrative Agent or any Lender (or any
of their respective representatives or agents) is prohibited by applicable Law, (c) that is subject to attorney-client or similar
privilege or constitutes attorney work product or (d) in respect of which the Company or any Subsidiary owes confidentiality obligations
to any third party (it being understood that the Company or any of its Subsidiaries shall inform the Administrative Agent of the existence
and nature of the confidential records, documents or other information not being provided and, following a reasonable request from the
Administrative Agent, use commercially reasonable efforts to request consent from an applicable contractual counterparty to disclose
such information (but shall not be required to incur any cost or expense or pay any consideration of any type to such party in order
to obtain such consent)).
6.11 Use
of Proceeds. Use the proceeds of the Credit Extensions to refinance Indebtedness outstanding as of the Second Amendment Effective
Date (including Indebtedness outstanding under this Agreement), to pay professional fees and other expenses associated therewith and for
general corporate purposes of the Company and its Subsidiaries (including for capital expenditures, Permitted Acquisitions, working capital
needs, the payment of transaction fees and expenses, Investments, Restricted Payments and any other purpose not prohibited by the
terms of the Loan Documents) not in contravention of any Law or of any Loan Document.
6.12 Compliance
with Environmental Laws. Comply, in all material respects, with all applicable Environmental Laws and Environmental Permits and obtain
and renew all Environmental Permits necessary for its operations and properties; provided, however, that neither the Company
nor any of its Restricted Subsidiaries shall be required to undertake any action under any Environmental Laws and Environmental Permits
to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances in accordance with the Applicable Accounting Standard as in effect on such date.
6.13 Maintenance
of Ratings. Use commercially reasonable efforts (it being understood and agreed that “commercially reasonable efforts”
shall in any event include the payment by the Company of customary rating agency fees and cooperation with information and data requests
by Moody’s and S&P in connection with their ratings process) to obtain and maintain (a) a public corporate family rating
of the Company and a rating of the credit facilities provided under this Agreement, in each case from Moody’s, (b) a public
corporate credit rating of the Company and a rating of the credit facilities provided under this Agreement, in each case from S&P
and (c) a current, non-credit-enhanced, senior secured long-term debt rating with respect to the Term B Loan from each of S&P
and Moody’s; provided, that in no event shall the Company be required to maintain a specific rating with any such agency.
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6.14 Covenant
to Guarantee Obligations.
(a) Within
forty-five (45) days (or such later date as the Administrative Agent may agree in its sole discretion) after (x) the acquisition
or formation of any Restricted Subsidiary (other than an Excluded Subsidiary) or (y) the date on which any Excluded Subsidiary ceases
to be an Excluded Subsidiary, cause such Restricted Subsidiary to (i) become a U.S. Guarantor (if such Subsidiary is a U.S. Subsidiary
and not a CFC Holdco) or a Non-U.S. Guarantor (if such Subsidiary is a Non-U.S. Subsidiary or a CFC Holdco), as applicable, by executing
and delivering to the Administrative Agent a Joinder Agreement or such other documents as the Administrative Agent shall deem appropriate
for such purpose and (ii) upon the request of the Administrative Agent in its reasonable discretion, deliver to the Administrative
Agent such Organization Documents, resolutions (which with respect to any corporation incorporated in Spain, shall be raised to the status
of a Spanish Public Document) and favorable opinions of counsel, all in form, content and scope reasonably satisfactory to the Administrative
Agent; provided that notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, no Specified
Subsidiary shall be required to provide a Guarantee in respect of any of the Obligations other than the Non-U.S. Obligations.
(b) If
any Subsidiary (including, to the extent permitted by applicable Law, any Excluded Subsidiary other than any Special Purpose Subsidiary
or any other Subsidiary with respect to which the Administrative Agent and the Company reasonably agree that the burden or cost of such
Person providing the Guaranty shall outweigh the benefits to be obtained by the Lenders therefrom) that is not a Guarantor provides a
Guarantee in respect of any Additional Indebtedness issued by a Loan Party, cause such Subsidiary to, concurrently with providing such
Guarantee in respect of such Additional Indebtedness (or at such later date that the Administrative Agent may agree in its sole discretion),
(i) become a U.S. Guarantor (if such Subsidiary is a U.S. Subsidiary and not a CFC Holdco) or a Non-U.S. Guarantor (if such Subsidiary
is a Non-U.S. Subsidiary or a CFC Holdco), as applicable, by executing and delivering to the Administrative Agent a Joinder Agreement
or such other documents as the Administrative Agent shall deem reasonably appropriate for such purpose and (ii) upon the request
of the Administrative Agent in its reasonable discretion, deliver to the Administrative Agent such Organization Documents, resolutions
(which with respect to any corporation incorporated in Spain, shall be raised to the status of a Spanish Public Document) and favorable
opinions of counsel, all in form, content and scope reasonably satisfactory to the Administrative Agent; provided that notwithstanding
anything to the contrary contained in this Agreement or any other Loan Document, no Specified Subsidiary shall be required to provide
a Guarantee in respect of any of the Obligations other than the Non-U.S. Obligations.
Notwithstanding anything to the contrary
contained herein, (x) the Company may from time to time, upon notice to the Administrative Agent, elect to cause any Subsidiary that
would otherwise be an Excluded Subsidiary to become a U.S. Guarantor (if such Subsidiary is a U.S. Subsidiary and not a CFC Holdco)
or a Non-U.S. Guarantor (if such Subsidiary is a Non-U.S. Subsidiary or a CFC Holdco), as applicable; provided that the requirements
set forth in the foregoing clause (a) applicable to any Subsidiary that is required to provide the Guaranty pursuant to such
clause are satisfied and (y) the Subsidiaries set forth on Part A of Schedule 6.19 shall not be required to comply with
this Section 6.14 until the Post-Closing Compliance Date.
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6.15 Covenant
to Give Security. Except with respect to Excluded Property:
(a) Cause
each U.S. Obligor that is not a Specified U.S. Obligor (in each case, whether now or hereafter existing) to grant or cause to be granted
a first priority perfected (or similar concept under any applicable non-U.S. Laws) security interest (subject to Permitted Liens) in the
following (to the extent not constituting Excluded Property), in each case to secure the Obligations pursuant to the Domestic U.S. Security
Agreement, in each case on the Closing Date or, if acquired thereafter, within forty-five (45) days (or such later date as the Administrative
Agent may agree in its sole discretion) of the acquisition thereof:
(i) (A) one
hundred percent (100%) of the issued and outstanding Equity Interests of any Restricted Subsidiary that is a U.S. Subsidiary and not a
CFC Holdco directly owned by such U.S. Obligor; (B) sixty-five percent (65%) of the issued and outstanding Equity Interests entitled
to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of any Restricted Subsidiary that is (x) a CFC directly owned
by such U.S. Obligor or (y) a CFC Holdco directly owned by such U.S. Obligor; and (C) one hundred percent (100%) of the issued
and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of any Restricted
Subsidiary that is (x) a CFC directly owned by such U.S. Obligor or (y) a CFC Holdco directly owned by such U.S. Obligor; and
(ii) all
personal property of such U.S. Obligor;
(b) Cause
each Non-U.S. Obligor that is not a Specified Non-U.S. Obligor (in each case, whether now or hereafter existing) to grant or cause to
be granted a first priority perfected (or similar concept under any applicable non-U.S. Laws) security interest (subject to Permitted
Liens) in the following (to the extent not constituting Excluded Property), in each case to secure the Obligations pursuant to the Canadian
Security Agreement or, upon the request of the Administrative Agent, another Security Agreement, in each case on the Closing Date or,
if acquired thereafter, within forty-five (45) days (or such later date as the Administrative Agent may agree in its sole discretion)
of the acquisition thereof:
(i) (A) except
to the extent the following clause (B) applies, one hundred percent (100%) of the issued and outstanding Equity Interests
of any Restricted Subsidiary directly owned by such Non-U.S. Obligor; (B) sixty-five percent (65%) of the issued and outstanding
Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of any Restricted Subsidiary that is
a CFC Holdco directly owned by such Non-U.S. Obligor; and (C) one hundred percent (100%) of the issued and outstanding Equity Interests
not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of any Restricted Subsidiary that is a CFC Holdco
directly owned by such Non-U.S. Obligor; provided that the foregoing clauses (B) and (C) shall not apply
with respect to any security interest granted to secure the Non-U.S Obligations; and
(ii) all
personal property of such Non-U.S. Obligor;
(c) Cause
each Specified U.S. Obligor (whether now or hereafter existing) to grant a first priority perfected security interest (subject to Permitted
Liens) in the following (to the extent not constituting Excluded Property), in each case to secure the Non-U.S. Obligations pursuant
to the Specified U.S. Security Agreement or, upon the request of the Administrative Agent, another pledge and/or security agreement in
favor of the Administrative Agent, for the benefit of the Secured Parties (or in its own name as creditor of Parallel Debt, as applicable),
in form and substance reasonably acceptable to the Administrative Agent, in each case on the Closing Date or, if acquired thereafter,
within thirty (30) days (or such later date as the Administrative Agent may agree in its sole discretion exercised reasonably) of the
acquisition thereof:
(i) one
hundred percent (100%) of the issued and outstanding Equity Interests of any Restricted Subsidiary directly owned by such Specified U.S.
Obligor; and
(ii) all
personal property of such Specified U.S. Obligor;
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(d) Cause
each Specified Non-U.S. Obligor (whether now or hereafter existing) to grant a first priority perfected security interest (subject to
Permitted Liens) in the following (to the extent not constituting Excluded Property), in each case to secure the Non-U.S. Obligations
pursuant to the Canadian Security Agreement or, upon the request of the Administrative Agent, another pledge and/or security agreement
in favor of the Administrative Agent, for the benefit of the Secured Parties (or in its own name as creditor of Parallel Debt, as applicable),
in form and substance reasonably acceptable to the Administrative Agent, in each case on the Closing Date or, if acquired thereafter,
within thirty (30) days (or such later date as the Administrative Agent may agree in its sole discretion, exercised reasonably) of the
acquisition thereof:
(i) one
hundred percent (100%) of the issued and outstanding Equity Interests of any Restricted Subsidiary directly owned by such Specified Non-U.S.
Obligor; and
(ii) all
personal property of such Specified Non-U.S. Obligor;
(e) At
any time upon reasonable request of the Administrative Agent (but, for the avoidance of doubt, subject to any applicable time periods
set forth in Section 6.14 and this Section 6.15), promptly execute and deliver any and all further instruments
and documents and take all such other action (including promptly completing any registration or stamping of documents as may be applicable)
as the Administrative Agent reasonably may deem necessary or desirable to maintain in favor of the Administrative Agent, for the benefit
of the Secured Parties (or in its own name as creditor of Parallel Debt, as applicable), Liens and insurance rights on the Collateral
that are duly perfected in accordance with the requirements of, or the obligations of the Loan Parties under, the Loan Documents and all
applicable Laws.
Notwithstanding
anything to the contrary contained herein, the Subsidiaries set forth on Part A of Schedule 6.19 shall not be required to
comply with this Section 6.15 until the Post-Closing Compliance Date.
6.16 Anti-Corruption
Laws; Sanctions. Conduct its business in material compliance with the United States Foreign Corrupt Practices Act of 1977, the Corruption
of Foreign Public Officials Act (Canada), the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions
applicable to the Company and its Subsidiaries and with all applicable Sanctions, and maintain policies and procedures designed to promote
and achieve compliance with such laws and Sanctions; provided that no Non-U.S. Subsidiary shall be required to comply with anti-corruption
legislation of any jurisdiction other than the Laws applicable in its jurisdiction of organization if such compliance would cause such
Person to violate the laws of its jurisdiction of organization.
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6.17 Further
Assurances. Promptly upon request by the Administrative Agent, or any Lender through the Administrative Agent, (a) correct any
material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof,
and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts,
deeds, certificates, assurances and other instruments (including promptly completing any registration or stamping of documents as may
be applicable) as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in
order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable
Law, subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights or interests (other than, in each case,
Excluded Property) to the Liens now or hereafter intended to be covered by any of the Collateral Documents, (iii) perfect and maintain
the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder and
(iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights
granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed
in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of its
Subsidiaries to do so.
6.18 Pari
Passu Ranking. Ensure that the payment obligations of the Loan Parties under the Loan Documents rank and continue to rank at least
pari passu with the claims of all of the Loan Parties’ other unsecured and unsubordinated creditors, except for obligations
mandatorily preferred by law applying to companies generally.
6.19 Post-Closing
Obligations.
(a) By
no later than the date that is thirty (30) days after the Closing Date (or such later date as the Administrative Agent may agree in its
sole discretion) (the “Post-Closing Compliance Date”), cause the Subsidiaries set forth on Part A of Schedule
6.19 to comply with the requirements of Sections 6.14 and 6.15.
(b) Undertake
all actions listed on Part B of Schedule 6.19, in each case as promptly as practicable and in any event within the time periods
set forth on such Schedule (or such longer periods of time as may be agreed to by the Administrative Agent in its sole discretion).
6.20 Designation
of Subsidiaries.
(a) The
Company may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted
Subsidiary; provided that (i) no Default or Event of Default shall exist immediately prior or immediately after giving effect
to such designation; (ii) the Company shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating
that after giving effect to such designation on a Pro Forma Basis, the Loan Parties would be in Pro Forma Compliance; (iii) no Restricted
Subsidiary may be designated as an Unrestricted Subsidiary if such Restricted Subsidiary or any of its Subsidiaries (A) owns any
Equity Interests or Indebtedness of, or owns or holds any Liens on, any property of the Company or any Restricted Subsidiary (or otherwise
has any obligation that is secured, directly or indirectly, by a Lien on any asset of the Company or any Restricted Subsidiary), (B) Guarantees
or holds any Indebtedness owing by the Company or any Restricted Subsidiary, or incurs any Indebtedness provided by the Company or any
Restricted Subsidiary, (C) owns or has an exclusive license on any IP Rights that are material to the Company and its Restricted
Subsidiaries or (D) has the benefit, directly or indirectly, of any credit support (including any Guarantee) provided by the Company
or any Restricted Subsidiary; (iv) any Unrestricted Subsidiary that has been designated as a Restricted Subsidiary may not subsequently
be re-designated as an Unrestricted Subsidiary; (v) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if
such Person were a Restricted Subsidiary on the Second Amendment Effective Date; and (vi) no Restricted Subsidiary may be designated
as an Unrestricted Subsidiary unless concurrent with such designation such Restricted Subsidiary is designated as an “unrestricted
subsidiary” (or otherwise not be subject to the covenants) under any Additional Indebtedness.
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(b) The
designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Company in such Subsidiary
on the date of such designation in an amount equal to the outstanding amount of all Investments by the Company and its Restricted Subsidiaries
in such Subsidiary on such date. Accordingly, such designation shall be permitted only if the Investment represented thereby would be
permitted under Section 7.02.
(c) The
designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence on the date of such designation
of any Investment, Indebtedness or Liens of such Subsidiary existing on such date and (ii) for purposes of calculating the outstanding
amount of Investments by the Company and its Restricted Subsidiaries in all Unrestricted Subsidiaries, a return on all Investments by
the Company and its Restricted Subsidiaries in such Subsidiary in an amount equal to the outstanding amount of all such Investments in
such Subsidiary on the date of such designation.
(d) If
at any time any Unrestricted Subsidiary (i) owns any Equity Interests or Indebtedness of, or owns or holds any Liens on, any property
of the Company or any Restricted Subsidiary (or otherwise has any obligation that is secured, directly or indirectly, by a Lien on any
asset of the Company or any Restricted Subsidiary), (ii) Guarantees or holds any Indebtedness owing by the Company or any Restricted
Subsidiary, or incurs any Indebtedness provided by the Company or any Restricted Subsidiary, (iii) owns or has an exclusive license
on any IP Rights that are material to the Company and its Restricted Subsidiaries, (iv) has the benefit, directly or indirectly,
of any credit support (including any Guarantee) provided by the Company or any Restricted Subsidiary or (v) ceases to be an “unrestricted
subsidiary” (or otherwise becomes subject to the covenants) under any Additional Indebtedness, then the Company shall, concurrently
therewith, re-designate such Unrestricted Subsidiary as a Restricted Subsidiary (or, in the case of clause (iii), transfer such
IP Rights to the Company or a Restricted Subsidiary).
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6.21 Financial
Assistance. Cause each Irish Loan Party to comply in all respects with Section 82 of the Irish Companies Act in relation to the
execution of the Loan Documents to which that Irish Loan Party is a party and the performance by that Irish Loan Party of its obligations
thereunder.
ARTICLE VII.
NEGATIVE COVENANTS
Each Loan Party hereby covenants
that no Loan Party shall, nor shall it permit any of its Restricted Subsidiaries (and, with respect to Section 7.16, Section 7.17
and Section 7.18, its Unrestricted Subsidiaries) to, directly or indirectly:
7.01 Liens.
Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired,
other than the following:
(a) Liens
pursuant to any Loan Document;
(b) Liens
existing on the Second Amendment Effective Date and listed on Schedule 7.01 and any renewals or extensions thereof; provided
that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as
contemplated by Section 7.03(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and
(iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b);
(c) Liens
for Taxes that are (i) not yet due or (ii) being contested in good faith and by appropriate proceedings diligently conducted
and for which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with the Applicable
Accounting Standard as in effect on such date;
(d) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business
(i) which are not overdue for a period of more than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable
Person;
(e) Liens
incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA or in respect of a Canadian Pension Plan;
(f) deposits
and other Liens to secure the performance of bids, trade contracts and leases (other than Indebtedness), tenders, statutory obligations,
surety bonds (other than bonds related to judgments or litigation), leases, performance bonds, government contracts and other obligations
of a like nature incurred in the ordinary course of business;
(g) easements,
rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person;
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(h) Liens
securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of
Default under Section 8.01(h);
(i) Liens
securing Indebtedness permitted under Section 7.03(e); provided that (i) such Liens do not at any time encumber
any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the
cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(j) licenses
(including licenses of intellectual property), sublicenses, leases or subleases granted to third parties in the ordinary course of business
not interfering with the business of the Company or any Restricted Subsidiary in any material respect;
(k) Liens
in favor of customs and revenue authorities arising as a matter of law which secure payment of customs duties in connection with the importation
of goods;
(l) any
interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements
in foreign jurisdictions) relating to, leases permitted by this Agreement;
(m) normal
and customary rights of setoff or bankers’ liens upon deposits of cash in favor of banks or other depository institutions;
(n) Liens
securing Acquired Indebtedness; provided that (i) such Liens do not at any time encumber any property other than the property
financed by such Indebtedness and (ii) such Liens existed prior to the applicable Permitted Acquisition and were not incurred in
connection with, or in anticipation or contemplation of, the applicable Permitted Acquisition;
(o) Liens
securing Junior Secured Indebtedness and Pari Passu Indebtedness, in each case, to the extent such Indebtedness is permitted under Section 7.03(h);
(p) Liens
on Securitized Assets created or deemed to exist in connection with (i) any Permitted Securitization Transaction or (ii) the
Specified Receivables Purchase Agreement;
(q) Liens
pursuant to any Loan Document securing (x) Secured Cash Management Agreements and (y) Secured Swap Contracts;
(r) purported
Liens evidenced by the filing of UCC financing statements in respect of consignment of goods;
(s) with
respect to any real property occupied, owned or leased by any Borrower or any of their Subsidiaries, leases, subleases, tenancies, options,
concession agreements, rental agreements occupancy agreements, franchise agreements, access agreements and any other agreements, whether
or not of record and whether now in existence or hereafter entered into, of the real properties of any Loan Party or any Restricted Subsidiary
granted by such Person to third parties, in each case entered into in the ordinary course of such Person’s business and so long
as, to the extent such real properties are subject to Liens, such Liens do not materially interfere with the ordinary conduct of business
of the Loan Parties or their Restricted Subsidiaries, taken as a whole, and do not materially impair the use of such property for its
intended purposes;
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(t) Liens
arising by operation of law under Article 4 of the Uniform Commercial Code in connection with collection of items provided for therein
or under Article 2 of the Uniform Commercial Code in favor of a reclaiming seller of goods or buyer of goods;
(u) Liens
attaching solely to (i) cash earnest money deposits in connection with any letter of intent or purchase agreement and (ii) proceeds
of an asset disposition permitted hereunder that are held in escrow to secure obligations under the sale documentation relating to such
disposition;
(v) any
laws, regulations or ordinances now or hereafter in effect (including, but not limited to, zoning, building and environmental protection)
as to the use, occupancy, subdivision or improvement of real property occupied, owned or leased by the Company or any of its Restricted
Subsidiaries adopted or imposed by any Governmental Authority;
(w) Liens
of landlords under leases where the Company or any of its Restricted Subsidiaries is the tenant, securing performance by the tenant under
the lease arising by statute or under any lease or related contractual obligation entered into in the ordinary course of business;
(x) (i) Liens
that are customary contractual rights of setoff or netting relating to (A) the establishment of depositary relations with banks not
granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of the Company or any Restricted Subsidiary
to permit satisfaction of overdraft or similar obligations or to secure negative cash balances in local accounts of foreign Restricted
Subsidiaries incurred in the ordinary course of business of the Company or any Restricted Subsidiary, (C) purchase orders and other
agreements entered into with customers of the Company or any Restricted Subsidiary in the ordinary course of business and (D) commodity
trading or other brokerage accounts incurred in the ordinary course of business, (ii) Liens encumbering reasonable customary initial
deposits and margin deposits and (iii) Liens on the proceeds of any Indebtedness incurred in connection with any transaction permitted
hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application
of proceeds to finance such transaction;
(y) Liens
securing insurance premium financing arrangements; provided, that such Liens only encumber the insurance premiums, policies or
dividends with respect to the policies that were financed with the funds advanced under such arrangements;
(z) Liens
on cash or cash equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness;
(aa) Liens
arising out of conditional sale, title retention, consignment, bailment or similar arrangements for the purchase, sale or shipment of
goods entered into in the ordinary course of business;
(bb) Liens
(i) on cash advances or escrow deposits in favor of the seller of any property to be acquired by the Company or any Restricted Subsidiary
to be applied against the purchase price therefor or otherwise in connection with any escrow arrangements with respect thereto or any
disposition permitted under Section 7.05 and (ii) consisting of an agreement to dispose of any property in a disposition
permitted under Section 7.05 solely to the extent such disposition, as the case may be, would have been permitted on the date
of the creation of such Lien;
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(cc) Liens
on securities which are the subject of repurchase agreements referred to in the definition of “Cash Equivalents” granted under
such repurchase agreements in favor of the counterparties thereto;
(dd) undetermined
or inchoate Liens and charges arising or potentially arising under statutory provisions incidental to current operations which have not
at the time been filed or registered in accordance with applicable Law or of which written notice has not been duly given in accordance
with applicable Law, or which although filed or registered, relate to obligations not due or delinquent;
(ee) Liens
on (i) inventory sold pursuant to a Permitted Inventory Financing Arrangement and (ii) payments and other proceeds in respect
of inventory sold pursuant to a Permitted Inventory Financing Arrangement; and
(ff) Liens
not otherwise permitted by this Section 7.01 securing obligations in an aggregate principal amount not to exceed at any one
time outstanding the greater of (x) $700,000,000 and (y) 10.0% of Consolidated Total Assets (determined as of the date of incurrence
of such obligations).
7.02 Investments.
Make any Investments, except:
(a) Investments
held by the Company or such Restricted Subsidiary in the form of Cash Equivalents;
(b) advances
to officers, directors and employees of the Company and Subsidiaries in an aggregate amount not to exceed $10,000,000 at any time outstanding,
for travel, entertainment, relocation and analogous ordinary business purposes;
(c) Investments
in the Company or any Loan Party; provided that in the case of any such Investment by a Restricted Subsidiary that is not a Loan
Party in a Loan Party, (i) such Investment shall be subordinated to the Obligations in a manner and to an extent reasonably acceptable
to the Administrative Agent and (ii) such Investment shall not be repaid unless no Event of Default exists;
(d) Investments
of any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary that is not a Loan Party;
(e) Investments
consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in
the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit loss;
(f) Guarantees
permitted by Section 7.03;
(g) Permitted
Acquisitions;
(h) Investments
of any Person in existence at the time such Person becomes a Subsidiary pursuant to a Permitted Acquisition; provided such Investment
was not made in connection with or anticipation of such Person becoming a Subsidiary;
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(i) to
the extent constituting Investments, deposit accounts maintained in the ordinary course of business and cash pooling arrangements in the
ordinary course of business;
(j) Investments
of the Company or any Restricted Subsidiary in any Special Purpose Subsidiary in connection with any Permitted Securitization Transaction;
provided that such Investments are customary in Securitization Transactions;
(k) to
the extent constituting Investments, Restricted Payments permitted under Section 7.06;
(l) Investments
existing on, or contractually committed to as of, the Second Amendment Effective Date and described in Schedule 7.02 or consisting
of intercompany Investments between or among the Company and its Subsidiaries outstanding on the Second Amendment Effective Date and any
modification, replacement, renewal or extension thereof so long as such modification, renewal or extension thereof does not increase the
amount of such Investment except, in the case of any such Investment described on Schedule 7.02, by the terms thereof as in effect
on the Second Amendment Effective Date and described on Schedule 7.02 or as otherwise permitted by this Section 7.02;
(m) Swap
Contracts permitted under Section 7.03(d).
(n) Investments
(including debt obligations and Equity Interests) (i) received by the Company or any of its Subsidiaries as a creditor pursuant to
a bankruptcy, insolvency, receivership, administration, winding-up or plan of reorganization under any Debtor Relief Law of any Person
or a composition or readjustment of the debts of such Person, (ii) in settlement of a dispute or delinquent account, (iii) upon
foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment and/or (iv) as
a result of the settlement, compromise, resolution of litigation, arbitration or other disputes;
(o) Investments
consisting of (i) deposits or prepaid expenses or (ii) endorsements for collection or deposit and customary trade arrangements,
in each case made or incurred in the ordinary course of business;
(p) any
Investment received as non-cash consideration from any Disposition permitted by Section 7.05;
(q) Investments
comprised of notes payable, or Equity Interests issued by account debtors to the Company or any Restricted Subsidiary pursuant to negotiated
agreements with respect to settlement of such account debtor’s account in the ordinary course of business;
(r) Investments
by a Loan Party and/or any Subsidiary that is not a Loan Party in any Restricted Subsidiary which is not a Loan Party consisting of (i) the
contribution or Disposition of the Equity Interests of any Restricted Subsidiary which is not a Loan Party or (ii) any non-cash Investments
arising as a result of any in-kind settlement transaction (including but not limited to loans made or deemed made in the course of settling
the distribution of any Restricted Payment) entered into by and among a Loan Party and/or any Subsidiary that is not a Loan Party, on
the one hand, and any Restricted Subsidiary which is organized or formed under the Laws of the Kingdom of Thailand, on the other hand;
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(s) Investments
consisting of Indebtedness to the extent permitted under Section 7.03 (other than clause (g) thereof), Permitted
Liens, transactions to the extent permitted by Section 7.04, and Restricted Payments and Junior Payments to the extent permitted
by Section 7.06;
(t) Investments
in any Subsidiary in connection with reorganizations and activities related to tax planning; provided that after giving effect
to any such reorganization and related activities, the security interest of the Administrative Agent in the Collateral, taken as a whole,
is not materially impaired and after giving effect to such Investment, the Company and its Subsidiaries shall otherwise be in compliance
with Section 7.02;
(u) Investments
comprised of notes owing to any Loan Party or any wholly owned Subsidiary in connection with the Disposition of the Toronto Property;
(v) Guarantees
by the Company in respect of obligations not constituting Indebtedness which are owed by Restricted Subsidiaries to their respective suppliers,
customers, landlords, franchisees and/or licensees;
(w) Investments
as valued at cost at the time each such Investment is made and including all related commitments for future Investments, in an amount
not exceeding the Available Amount; provided that at the time of any such Investment, no Event of Default shall have occurred and
be continuing or would result therefrom; and
(x) other
Investments in an aggregate amount not to exceed at any time outstanding the sum of (i) the greater of (x) $700,000,000 and
(y) 10.0% of Consolidated Total Assets (determined as of the date of the making of such Investment) plus (ii) an unlimited
amount so long as after giving effect to such Investment on a Pro Forma Basis, the Consolidated Total Net Leverage Ratio (without giving
effect to the cap on cash netting in the definition thereof) shall be less than 3.50:1.00 (for purposes of clarity, the amount of any
Investment made in reliance on the immediately preceding clause (ii) and permitted thereunder at such time shall not be included
in any calculation of the amount available in the immediately preceding clause (i)).
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, but in each case, net of any return in respect thereof, including dividends, interest, distributions, returns of principal,
profits on sale, repayments, income and similar amounts.
7.03 Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness
under the Loan Documents, Secured Cash Management Agreements and Secured Swap Contracts;
(b) Indebtedness
outstanding on the Second Amendment Effective Date and listed on Schedule 7.03 and any refinancings, refundings, renewals or extensions
thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or
extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred,
in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder;
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(c) Guarantees
of the Company or any Loan Party in respect of Indebtedness otherwise permitted hereunder of the Company or any Loan Party; provided
that if such Indebtedness is subordinated to the Obligations, such Guarantee shall be subordinated to the Obligations on terms at least
as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(d) obligations
(contingent or otherwise) of the Company or any Loan Party existing or arising under any Swap Contract; provided that such obligations
are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities
issued by such Person, and not for purposes of speculation or taking a “market view”;
(e) Indebtedness
in respect of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations
set forth in the proviso to Section 7.01(i); provided, however, that the aggregate amount of all such Indebtedness
at any one time outstanding shall not exceed the greater of (x) $500,000,000 and (y) 7.5% of Consolidated Total Assets (determined
as of the date of incurrence of such Indebtedness);
(f) Indebtedness
in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion
guarantees provided by the Company and its Restricted Subsidiaries in the ordinary course of business;
(g) intercompany
Indebtedness permitted under Section 7.02 (other than clause (s) thereof); provided that in the case of
Indebtedness owing by a Loan Party to any Subsidiary that is not a Loan Party, such Indebtedness shall be unsecured and subordinated in
right of payment to the Obligations on a basis, and pursuant to an agreement, reasonably acceptable to the Administrative Agent;
(h) Pari
Passu Indebtedness, Junior Secured Indebtedness and unsecured Indebtedness (any such Indebtedness, “Additional Indebtedness”);
provided in each case that (i) after giving effect to the incurrence of such Indebtedness and the application of the proceeds
thereof on a Pro Forma Basis (subject to the provisions of Section 1.10 in the case of any such Indebtedness incurred to
finance a Limited Condition Acquisition), (A) in the case of Pari Passu Indebtedness, the Consolidated First Lien Net Leverage Ratio
would be less than 3.00:1.00, (B) in the case of Junior Secured Indebtedness, the Consolidated Secured Net Leverage Ratio, would
be less than 3.25:1.00, and (C) in the case of unsecured Indebtedness, the Consolidated Total Net Leverage Ratio (without giving
effect to the cap on cash netting in the definition thereof) would be less than 4.00:1.00, (ii) with respect to the incurrence of
(A) any such Junior Secured Indebtedness or unsecured Indebtedness, in each case, in excess of $100,000,000 or (B) any such
Pari Passu Indebtedness, the Company shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating
compliance with the immediately preceding sub-clauses (A), (B) and (C) of the immediately preceding clause
(i), as applicable; (iii) no Default or Event of Default shall exist at the time of, or would result from, the incurrence of,
such Indebtedness; (iv) the maturity date of such Indebtedness shall be at least ninety-one (91) days after the later of (A) the
latest Maturity Date and (B) the maturity date for any Incremental Term Loan; (v) the Weighted Average Life of any such Indebtedness
shall not be shorter than the then remaining Weighted Average Life of any other Term Loan; provided, that the foregoing clauses
(iv) and (v) of this Section 7.03(h) shall not apply to (I) Inside Maturity Indebtedness and
(II) bridge Indebtedness incurred, so long as (1)(x) at the initial maturity of such bridge Indebtedness, such bridge Indebtedness
shall automatically convert to (or would be required to be exchanged for) Indebtedness that complies with the foregoing clauses (iv) and
(v) or (y) such bridge Indebtedness is incurred with the intent to convert such bridge Indebtedness to permanent financing
that complies with the foregoing clauses (iv) and (v), and (B) the only prepayments required to be made on such
bridge Indebtedness shall be such prepayments as are customary for similar bridge financings in light of then-prevailing market conditions
(as determined by the Company in consultation with the Administrative Agent), (vi) such Additional Indebtedness shall be subject
to intercreditor or subordination agreements, as applicable, reasonably acceptable to the Administrative Agent; (vii) no Additional
Indebtedness shall be Guaranteed by any Person other than the Guarantors or secured by any property other than the Collateral; and (viii) the
terms and conditions including such financial maintenance covenants (if any) applicable to such Additional Indebtedness shall not be,
when taken as a whole, materially more restrictive (as determined by the Administrative Agent acting reasonably) than those contained
in the Loan Documents (unless such terms are conformed (or added) in the Loan Documents for the benefit of the Lenders pursuant to an
amendment hereto or thereto subject solely to the reasonable satisfaction of the Company and the Administrative Agent);
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(i) Indebtedness
of any Borrower or any Restricted Subsidiary assumed or acquired connection with Permitted Acquisition (any such Indebtedness, “Acquired
Indebtedness”); provided that (i) such Indebtedness shall exist prior to the applicable Permitted Acquisition and
was not incurred in connection with, in anticipation or contemplation of, the applicable Permitted Acquisition and (ii) the aggregate
principal amount of all such Indebtedness shall not exceed the greater of (x) $350,000,000 and (y) 5.0% of Consolidated Total
Assets (determined as of the date of incurrence of such Indebtedness);
(j) (i) Attributable
Indebtedness under any Securitization Transaction (other than, for the avoidance of doubt, any Permitted Receivables Transaction or the
Specified Receivables Purchase Agreement, each of which is governed by the provisions of the immediately succeeding clauses (ii) and
(iii)), (ii) to the extent constituting Indebtedness, the obligations of the Company or any Restricted Subsidiary pursuant
to any Permitted Receivables Transaction and (iii) to the extent constituting Indebtedness, the obligations of the Company or any
Restricted Subsidiary pursuant to the Specified Receivables Purchase Agreement; provided that the aggregate amount of all Indebtedness
and all outstanding sales of receivables permitted pursuant to this clause (j) shall not exceed at any time outstanding
(A) so long as (I) the Company maintains a current public corporate family rating of BB- or better from S&P or Ba3 or better
from Moody’s, (II) no Credit Extension (other than Letters of Credit and Term Loans) shall be outstanding and (III) no
extension of credit shall be outstanding under any other credit facility under which the Company or any Restricted Subsidiary is a borrower
(other than any letter of credit issued in the ordinary course of business), fifty percent (50%) or (B) under all other circumstances,
thirty percent (30%), in each case, of the aggregate book value of the trade accounts receivable of or owing to the Loan Parties, determined
on a consolidated basis prior to giving effect to prior Securitization Transactions, prior Permitted Receivables Transactions and the
Specified Receivables Purchase Agreement, in each case to the extent not collected on or prior to the date on which the relevant transaction
is completed; provided, further, that solely with respect to any Securitization Transaction entered into pursuant to sub-clause
(i) of this clause (j), (x) no Default or Event of Default shall exist immediately prior to or immediately after
giving effect to such Securitization Transaction, (y) prior to entering into such Securitization Transaction, the Company shall
have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, after giving effect to such Securitization
Transaction on a Pro Forma Basis, the Loan Parties would be in Pro Forma Compliance and (z) such Securitization Transaction shall
be non-recourse to the Company and its Restricted Subsidiaries other than with respect to purchase or repurchase obligations for breaches
of representations and warranties, performance guaranties and indemnity obligations and other similar undertakings in each case that
are customary for similar standard market accounts receivable securitizations;
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(k) accrued
expenses (including salaries, accrued vacation and other compensation), current trade or other accounts payable and other current liabilities
arising in the ordinary course of business and not past due more than 90 days except to the extent being contested in good faith and by
appropriate proceedings;
(l) Indebtedness
arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out
obligations) incurred in connection with any disposition permitted hereunder, any acquisition or other purchase of assets or Equity Interests
permitted hereunder, and Indebtedness arising from surety bonds, performance bonds or similar instruments securing the performance of
the Company or any Restricted Subsidiary pursuant to such agreement;
(m) Indebtedness
arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(n) Indebtedness
in respect of premium financing arrangements; provided that the aggregate principal amount of such Indebtedness shall not exceed
the annual premium amount and shall be secured only by the Liens described in Section 7.01(y);
(o) Indebtedness
consisting of unsecured guarantees by the Company or any of its Restricted Subsidiaries of operating leases of any Loan Party (other than
the Company);
(p) Indebtedness
in respect of commercial credit cards, stored value cards, employee credit cards, purchasing cards and treasury management services and
other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement,
ACH transactions, return items, interstate depository network service, Society for Worldwide Interbank Financial Telecommunication transfers,
cash pooling and operational foreign exchange management, and, in each case, similar arrangements and otherwise in connection with cash
management or customary banking arrangements, and deposit accounts, in each case to the extent incurred in the ordinary course of business;
provided that, to the extent any such arrangements create Indebtedness obligations or liabilities by a Loan Party to or with respect
to any Subsidiary that is not a Loan Party, such Indebtedness obligations or liabilities must be permitted under Section 7.02
(other than under Section 7.02(s) by reference to, or in reliance on, this clause (p));
(q) Indebtedness
representing deferred compensation to employees of the Company and its Subsidiaries;
(r) (i) Indebtedness
in respect of guarantees of the obligations of suppliers, customers and licensees in the ordinary course of business and (ii) Indebtedness
incurred in the ordinary course of business in respect of obligations of the Company or any Subsidiary to pay the deferred purchase price
of goods or services or progress payments in connection with such goods and services;
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(s) unfunded
pension fund and other employee benefit plan obligations and liabilities incurred in the ordinary course of business to the extent that
the unfunded amounts would not otherwise cause an Event of Default;
(t) Indebtedness
consisting of obligations owing under any dealer, customer or supplier incentive, supply, license or similar agreements entered into in
the ordinary course of business;
(u) Indebtedness
consisting of (i) take-or-pay obligations contained in supply arrangements and/or (ii) obligations to reacquire assets or inventory
in connection with customer financing arrangements, in each case, in the ordinary course of business;
(v) (i) Indebtedness
of any Non-U.S. Subsidiary under (A) any Specified Local Facility or (B) any other local overdraft, working capital, letter
of credit or other facility or extension of credit, in each case incurred in the ordinary course of business of such Non-U.S. Subsidiary,
in an aggregate amount for all such Indebtedness incurred pursuant to this clause (v)(i) not to exceed at any time outstanding
the greater of (x) $500,000,000 and (y) 7.5% of Consolidated Total Assets (determined as of the date of incurrence of such Indebtedness);
provided that, in the event that any such facility is secured, to the extent deemed necessary or appropriate by the Administrative
Agent in its sole discretion, any such secured Indebtedness shall be subject to an intercreditor agreement in form and substance reasonably
acceptable to the Administrative Agent and (ii) Guarantees by the Company or any other Loan Party in respect of Indebtedness incurred
pursuant to the foregoing clause (v)(i);
(w) to
the extent constituting Indebtedness, customer deposits and advance payments received in the ordinary course of business from customers
for goods and services purchased in the ordinary course of business; and
(x) other
Indebtedness in an aggregate principal amount not to exceed at any time outstanding the greater of (x) $700,000,000 and (y) 10.0%
of Consolidated Total Assets (determined as of the date of incurrence of such Indebtedness).
Notwithstanding anything to
the contrary in this Section 7.03 or otherwise, no Special Purpose Subsidiary shall contract, create, incur, assume or permit
to exist any Indebtedness other than Indebtedness existing from time to time under any Permitted Securitization Transaction.
7.04 Fundamental
Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction
or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Event of Default exists or would result therefrom:
(a) (i) the
Company may merge, amalgamate or consolidate with any of its Subsidiaries; provided that the Company is the continuing or surviving
Person, and (ii) any Restricted Subsidiary may merge, amalgamate or consolidate with (or engage in any similar transaction, including
to be acquired by or wound up into) any of the Company or one or more other Restricted Subsidiaries; provided that (x) if
a Guarantor is a party thereto, the continuing or surviving Person is a Borrower or a Guarantor, (y) if any Borrower is a party thereto,
a Borrower is the continuing or surviving Person and (z) if any Canadian Borrower is a party to any amalgamation, the new created
“amalgamated” Person shall provide to the Administrative Agent customary documents and other deliverables with respect to
the such Person;
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(b) the
Company or any Restricted Subsidiary may merge or amalgamate with any other Person in connection with a Permitted Acquisition; provided
that (i) if the Company is a party thereto, the Company is the continuing or surviving Person, (ii) if a Borrower is a party
thereto, a Borrower is the continuing or surviving Person and (iii) if a Guarantor is a party thereto, such surviving Person shall
be a Borrower or a Guarantor;
(c) any
Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or
to another Restricted Subsidiary; provided that (i) if the transferor in such a transaction is a Loan Party, then the transferee
must be a Loan Party and (ii) if the transferor in such a transaction is a Borrower, the transferee must be a Borrower;
(d) (i) each
of the dissolutions, liquidations, consolidations and other Dispositions that are in process or slated to occur and described in Schedule
7.04, as of the Second Amendment Effective Date, may be consummated and (ii) any Subsidiary that is an Immaterial Subsidiary
or an Unrestricted Subsidiary may be dissolved, liquidated, or consolidated with or into another Person; provided that (A) with
respect to any such consolidation with or into another Person pursuant to this clause (d), (1) if a Borrower is a party thereto,
a Borrower is the continuing or surviving Person, (2) if a Guarantor is a party thereto, such surviving Person shall be a Borrower
or a Guarantor and (3) if a Restricted Subsidiary is a party thereto, such surviving Person shall be a Restricted Subsidiary, (B) with
respect to any such dissolution or liquidation pursuant to this clause (d), the assets of such Person so dissolved or liquidated
shall be transferred to (1) if such Person so dissolved or liquidated is a Borrower, a Borrower (2) if such Person so dissolved
or liquidated is a Guarantor, a Borrower or a Guarantor and (3) if such Person so dissolved or liquidated is a Restricted Subsidiary,
another Restricted Subsidiary and (C) with respect to any such Disposition pursuant to clause (d)(i), the assets so Disposed
shall be transferred to (1) if the Person making such Disposition is a Borrower, another Borrower, (2) if the Person making
such Disposition is a Guarantor, a Borrower or a Guarantor and (3) if the Person making such Disposition is a Restricted Subsidiary,
another Restricted Subsidiary; and
(e) any
Disposition to the extent permitted by Section 7.05 (other than, for the avoidance of doubt, pursuant to clause (e) of
such Section) shall be permitted under this Section 7.04.
7.05 Dispositions. Make
any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions
of used, obsolete, damaged, worn-out or surplus equipment, or property no longer useful in the conduct of the business or otherwise economically
impracticable to maintain, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Disposition
of inventory, goods held for sale and other assets and licenses of intellectual property (including on an intercompany basis), in each
case in the ordinary course of business;
(c) Dispositions
of equipment or real property to the extent that such property is exchanged for credit against, or the net cash proceeds of such Disposition
are reasonably promptly applied to, the purchase price of property useful in the business of the Company and its Restricted Subsidiaries
as conducted on the Closing Date;
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(d) Dispositions
of property (including, for the avoidance of doubt, owned Equity Interests) to the Company or to another Restricted Subsidiary; provided
that if the transferor of such property is a Loan Party, the transferee thereof must be a Loan Party;
(e) Dispositions
permitted by Section 7.04 (other than clause (e) thereof) or Section 7.06;
(f) non-exclusive
licenses of IP Rights in the ordinary course of business and substantially consistent with past practice for terms not exceeding five
(5) years, so long as such non-exclusive license does not have a material adverse impact on the operation of business of the Company
and its Restricted Subsidiaries, or a material adverse impact on the value of the Collateral; provided, that, this clause
(f) shall not permit the granting of any license of IP Rights to any Unrestricted Subsidiary;
(g) Dispositions
of accounts receivable in connection with the collection or compromise thereof;
(h) licenses,
sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Company and its Restricted
Subsidiaries;
(i) Dispositions
of Cash Equivalents in the ordinary course of business;
(j) to
the extent constituting Dispositions, Recovery Events;
(k) Dispositions
of Securitized Assets by (i) any Special Purpose Subsidiary in connection with any Permitted Securitization Transaction or (ii) the
Specified Receivables Purchase Agreement;
(l) the
Disposition of each of (i) the Toronto Property, (ii) all or any part of the Valencia Property, and (iii) the assets described
on Schedule 7.05, in the case of each of the foregoing clauses (i), (ii) and (iii), to any Person(s) other
than a Subsidiary in a single transaction or series of related transactions;
(m) the
Disposition of non-core or non-strategic assets acquired in connection with a Permitted Acquisition or similar Investment; provided
that (x) to the extent required by Section 2.06(b)(ii), such Net Cash Proceeds from any such sale are reinvested
or applied in prepayment of the Loans in accordance with the provisions of Section 2.06(b)(v), (y) immediately after
giving effect thereto, no Event of Default would exist and (z) the fair market value of such non-core or non-strategic assets (determined
as of the date of acquisition thereof by the applicable Loan Party or Restricted Subsidiary, as the case may be) so Disposed shall not
exceed twenty-five percent (25%) of the purchase price paid for all such assets acquired in such Permitted Acquisition;
(n) the
termination of a lease due to the default of the landlord thereunder or pursuant to any right of termination of the tenant under the lease;
(o) Dispositions
of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such similar
replacement property;
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(p) the
lease or sub-lease of any real or personal property in the ordinary course of business and the termination or non-renewal of any real
property lease not used or not necessary to the operations of the Company or any Restricted Subsidiary;
(q) Dispositions
in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination
of the Company, are not material to the conduct of the business of the Company and its Subsidiaries, taken as a whole;
(r) Dispositions
of Investments in joint ventures or any Restricted Subsidiaries that are not wholly owned Subsidiaries to the extent required by, or made
pursuant to, buy/sell arrangements between joint venture or similar parties set forth in the relevant joint venture arrangements and/or
similar binding arrangements;
(s) Dispositions
or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that
are temporarily not in use, held for sale or closed;
(t) Dispositions
in connection with the termination or unwinding of Swap Contracts;
(u) Dispositions
of Equity Interests or Indebtedness of Unrestricted Subsidiaries;
(v) exchanges
or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of
property or assets so long as the exchange or swap is made for fair value (as reasonably determined by the Company) for like property
or assets; provided that (i) within ninety (90) days of any such exchange or swap, in the case of any Loan Party and to the
extent such property does not constitute Excluded Property, the Administrative Agent has a perfected Lien having the same priority as
any Lien held on the property so exchanged or swapped and (ii) any Net Cash Proceeds received as a “cash boot” in connection
with any such transaction shall be applied and/or reinvested as (and to the extent) required by Section 2.06;
(w) any
merger, consolidation, Disposition or conveyance, the sole purpose and effect of which is to reincorporate or reorganize (i) any
U.S. Subsidiary in another jurisdiction in the U.S. or (ii) any Non-U.S. Subsidiary in the U.S. or any other jurisdiction; provided,
that any Loan Party involved in such transaction does not become an Excluded Subsidiary (except to the extent that it is or becomes an
Immaterial Subsidiary so long as it remains a Loan Party hereunder) as a result of such transaction and any Restricted Subsidiary does
not become an Unrestricted Subsidiary as a result of such transaction unless the designation of such Restricted Subsidiary as an Unrestricted
Subsidiary is permitted under Section 6.20 at such time;
(x) Dispositions
of accounts receivable due from any customer of the Company or any Restricted Subsidiary in connection with such customer’s supplier
financing program pursuant to a customary receivables sale agreement (each such Disposition, a “Permitted Receivables Transaction”);
provided that (i) any such sale is made on a nonrecourse basis to the Company and its Restricted Subsidiaries other than
with respect to the representations given by the Company or the applicable Restricted Subsidiary, as the case may be, in connection with
such receivables, (ii) if the Company or such Restricted Subsidiary, as the case may be, receives an updated pricing schedule that
provides for a total “discount rate” resulting in more than a five percent (5%) discount on the total amount of each account
receivable sold pursuant to such receivables sale agreement (i.e., discounting any such receivable so that the receivables would
be sold for less than “95 cents on the dollar”), the Company or such Restricted Subsidiary, as the case may be, does not
permit any such receivables to be sold at such discount rate for more than five (5) Business Days after its receipt of such updated
pricing schedule and (iii) any lien release and UCC-3 financing statement amendment to be filed in connection with such lien release
shall be reasonably satisfactory (including with respect to the terms and conditions thereof in the case of any such lien release) to
the Administrative Agent and such UCC-3 financing statement amendment shall be promptly filed by the Administrative Agent after entering
into such lien release;
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(y) Dispositions
of inventory pursuant to any Permitted Inventory Financing Arrangement; and
(z) Dispositions
not otherwise permitted under this Section 7.05, so long as (i) no Default or Event of Default has occurred and is continuing,
(ii) solely with respect to any individual Disposition (or series of related Dispositions) for consideration exceeding $100,000,000,
at least seventy-five percent (75%) of the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneously
with consummation of the transaction, (iii) the consideration paid in connection therewith shall be in an amount not less than the
fair market value of the property disposed of (as reasonably determined by the Company), (iv) such transaction does not involve the
Disposition of a minority Equity Interest in any Loan Party (other than the Company), and (v) such Disposition does not involve a
Disposition of receivables other than receivables owned by or attributable to other property concurrently being disposed of in a Disposition
otherwise permitted under this Section 7.05.
7.06 Restricted
Payments and Junior Payments. Declare or make, directly or indirectly, any Restricted Payment or any Junior Payment, or incur any
obligation (contingent or otherwise) to do so, except:
(a) each
Restricted Subsidiary may make Restricted Payments to the Company, the Guarantors and any other Person that owns an Equity Interest in
such Restricted Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted
Payment is being made;
(b) the
Company and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other
common Equity Interests of such Person;
(c) the
Company and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the
substantially concurrent issue of new shares of its common stock or other common Equity Interests;
(d) to
the extent constituting Restricted Payments, (i) transactions contemplated by or required under any of (A) the Long Term Incentive
Plan of the Company, (B) the Celestica Share Unit Plan of the Company or (C) the Directors’ Share Compensation Plan of
the Company or any replacement or successor plan thereto, and (ii) transactions contemplated by or required under any other employment,
compensation or separation agreement or arrangement entered into by the Company or any Restricted Subsidiary in the ordinary course of
business;
(e) the
Company may make Restricted Payments and Junior Payments (including, without limitation, normal-course issuer bids) in an aggregate amount
not exceeding the Available Amount; provided that (i) at the time of any such Restricted Payment or Junior Payment, no Event
of Default then exists or would arise therefrom and (ii) after giving effect to such Restricted Payment or Junior Payment, as applicable,
on a Pro Forma Basis, the Consolidated Total Net Leverage Ratio (without giving effect to the cap on cash netting in the definition thereof)
shall not exceed 3.75:1.00; and
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(f) the
Company may make Restricted Payments and Junior Payments (including, without limitation, normal-course issuer bids) in an aggregate amount
during the term of this Agreement not to exceed the sum of (i) the greater of (x) $700,000,000 and (y) 10.0% of Consolidated
Total Assets (determined as of the date of the making of such Restricted Payment), plus (ii) an unlimited amount so long as
after giving effect to such Restricted Payment or Junior Payment, as applicable, on a Pro Forma Basis, the Consolidated Secured Net Leverage
Ratio shall be less than 3.00:1.00; provided that no Default or Event of Default then exists or would arise therefrom (for purposes
of clarity, the amount of any Restricted Payment made in reliance on the immediately preceding clause (ii) and permitted thereunder
at such time shall not be included in any calculation of the amount available in the immediately preceding clause (i)).
7.07 Change
in Nature of Business. Engage in any material line of business other than those lines of business conducted by the Company and its
Restricted Subsidiaries on the Closing Date and/or any business similar, complementary, ancillary, adjacent, reasonably related or incidental
thereto.
7.08 Transactions
with Affiliates. Enter into any transaction of any kind with any Affiliate (other than the Company or a Restricted Subsidiary) of
the Company, whether or not in the ordinary course of business, other than (a) reasonable and customary compensation and reimbursement
expenses of officers and directors, (b) stock option plans for officers, management and other employees, (c) transactions solely
between or among the Company and/or one or more Restricted Subsidiaries or any Person that becomes a Restricted Subsidiary as a result
of such transaction, (d) any dividends or distributions on account of shares of any Equity Interests issued by Subsidiaries of the
Company ratably to the holders thereof, (e) transactions between or among the Company and/or one or more Restricted Subsidiaries
and their Affiliates that are required under applicable Law or by any Governmental Authority, (f) transactions entered into on or
prior to the Second Amendment Effective Date and described on Schedule 7.08 and (g) other transactions on terms not materially
less favorable to the Company or such Restricted Subsidiary as would be obtainable by the Company or such Restricted Subsidiary at the
time in a comparable arm’s length transaction with a Person other than an Affiliate.
7.09 Burdensome
Agreements. Enter into any Contractual Obligation (other than this Agreement or any other Loan Document) that (a) limits the
ability (i) of any Restricted Subsidiary to make Restricted Payments to the Company or any Loan Party or to otherwise transfer property
to the Company or any Loan Party, (ii) of any Restricted Subsidiary to Guarantee the Indebtedness of the Borrowers or (iii) of
the Company or any Restricted Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person; provided,
however, that this clause (iii) shall not prohibit any negative pledge (x) incurred or provided in favor of any
holder of Indebtedness permitted under Section 7.03(e) solely to the extent any such negative pledge relates to the
property financed by or the subject of such Indebtedness or (y) contained in the Specified Receivables Purchase Agreement or in
any document or instrument governing any Permitted Securitization Transaction or any Permitted Receivables Transaction; provided
that any such restriction relates only to the applicable Securitized Assets or, in the case of any Permitted Receivables Transaction,
accounts receivable actually sold, conveyed, pledged, encumbered or otherwise contributed pursuant to the Specified Receivables Purchase
Agreement, to such Permitted Securitization Transaction or to such Permitted Receivables Transaction, as applicable; or (b) requires
the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person, in the case
of each of clauses (a) and (b), other than Contractual Obligations:
(a) set
forth in any agreement evidencing (i) Indebtedness of a Restricted Subsidiary that is not a Loan Party permitted by Section 7.03,
(ii) Indebtedness permitted by Section 7.03 that is secured by a Permitted Lien if the relevant restriction applies only
to the Person obligated under such Indebtedness and its Restricted Subsidiaries or the property or assets intended to secure such Indebtedness
(provided that, in each case, such restrictions do not restrict the Liens securing the Obligations or the first priority status
thereof) and (iii) Indebtedness permitted pursuant to clauses (e), (j) and/or (w) of Section 7.03
(including any refinancings or replacements of any of the foregoing);
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(b) that
are or were created by virtue of any Lien granted upon, Disposition of, transfer of, agreement to transfer or grant of, any option or
right with respect to any property, assets or Equity Interests not otherwise prohibited under this Agreement; provided that such
Lien is only on or with respect to the property, assets or Equity Interests subject to such Disposition, transfer, agreement to transfer
or option or right;
(c) arising
under or as a result of applicable Law or the requirements of any Governmental Authority or the terms of any license, authorization, concession
or permit obtained in the ordinary course of business;
(d) arising
under customary non-assignment provisions with respect to assignments, leases, subletting or other transfers (including the granting of
any Lien) contained in leases, subleases, licenses, sublicenses, joint venture agreements and other agreements, in each case entered into
in the ordinary course of business;
(e) imposed
by customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements
and other similar agreements but solely with respect to the Equity Interests of such partnership, limited liability company or joint venture;
(f) that
are assumed in connection with any acquisition of property or the Equity Interests of any Person, so long as the relevant encumbrance
or restriction relates solely to the Person and its subsidiaries (including the Equity Interests of the relevant Person or Persons) and/or
property so acquired and was not created in connection with or in anticipation of such acquisition;
(g) set
forth in any agreement for any Disposition of any Restricted Subsidiary (or all or substantially all of the property and/or assets thereof)
that restricts the payment of dividends or other distributions or the making of cash loans or advances by such Restricted Subsidiary pending
such Disposition;
(h) set
forth in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any class
of Equity Interests of a Person other than on a pro rata basis;
(i) set
forth in documents which exist on the Second Amendment Effective Date and were not created in contemplation thereof and which are set
forth on Schedule 7.09;
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(j) on
cash, other deposits or net worth or similar restrictions imposed by Persons under contracts entered into in the ordinary course of business
or for whose benefit such cash, other deposits or net worth or similar restrictions exist;
(k) arising
in any Swap Contract and/or any agreement relating to any Swap Obligation or obligations of the type referred to in Section 7.03(d);
(l) arising
pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred hereunder if (x) the relevant restrictions,
taken as a whole, are not materially less favorable to the Lenders than the restrictions contained in this Agreement, taken as a whole
(as determined in good faith by the Company) and (y) the relevant restrictions do not restrict the Liens securing the Obligations
or the first priority status thereof;
(m) relating
to any asset (or all of the assets) of and/or the Equity Interests of any Restricted Subsidiary which are imposed pursuant to an agreement
entered into in connection with any Disposition of such asset (or assets) and/or all or a portion of the Equity Interests of the relevant
Person that is permitted or not restricted by this Agreement;
(n) set
forth in any agreement relating to any Permitted Lien that limits the right of the Company or any Restricted Subsidiary to Dispose of
or encumber the assets subject thereto; and
(o) imposed
by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (a) through (n) above; provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancing are, in the reasonable judgment
of the Company, not materially more restrictive with respect to such encumbrances and other restrictions, taken as a whole, than those
in effect prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
7.10 Use
of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately,
to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing
or carrying margin stock or to refund indebtedness originally incurred for such purpose.
7.11 Financial
Covenants.
(a) Consolidated
Interest Coverage Ratio. Except with the consent of the Required Pro Rata Facilities Lenders, permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of the Company to be less than 3.25:1.00.
(b) Consolidated
Total Net Leverage Ratio. Except with the consent of the Required Pro Rata Facilities Lenders, permit the Consolidated Total Net
Leverage Ratio at any time during any period of four (4) fiscal quarters of the Company to be greater than 4.00:1.00; provided,
that, upon the occurrence of a Qualified Acquisition, for the four (4) fiscal quarters commencing with the fiscal quarter
during which such Qualified Acquisition closes (each such period, a “Leverage Increase Period”), the required ratio
set forth above may, upon receipt by the Administrative Agent of a Qualified Acquisition Notice, be increased to 4.50:1.00; provided
further, that (i) the maximum Consolidated Total Net Leverage Ratio permitted pursuant to this Section 7.11(b) shall
revert to 4.00:1.00 following the end of each Leverage Increase Period, (ii) for at least two (2) fiscal quarters ending immediately
following each Leverage Increase Period, the Consolidated Total Net Leverage Ratio as of the end of each such fiscal quarter shall not
be permitted to be greater than 4:00:1.00 prior to giving effect to another Leverage Increase Period and (iii) the Leverage Increase
Period shall apply for purposes of determining compliance with this Section 7.11(b), for purposes of any Qualified Acquisition
Pro Forma Determination and for purposes of determining Pro Forma Compliance in connection with the incurrence of Indebtedness to finance
such Qualified Acquisition under Section 2.16 or Section 7.03(h).
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7.12 Organization
Documents; Fiscal Year; Legal Name, Jurisdiction of Formation and Form of Entity.
(a) Amend,
modify or change its Organization Documents in a manner materially adverse to the Lenders;
(b) Change
the Company’s fiscal year;
(c) Without
providing ten (10) days (or such lesser period as the Administrative Agent may agree) prior written notice to the Administrative
Agent, change its name, jurisdiction of formation or form of organization; or
(d) Make
any change in accounting policies or reporting practices, except (i) as required by the Applicable Accounting Standard as in effect
on such date, and (ii) for the Accounting Standard Change.
7.13 Sale
Leasebacks. Enter into any Sale and Leaseback Transaction; provided that any Sale and Leaseback Transaction shall be permitted
so long as in connection with such Sale and Leaseback Transaction (1) cash consideration is received by the Company or any of its
Restricted Subsidiaries for the property subject thereto, (2) the Company or its applicable Restricted Subsidiary would otherwise
be permitted to enter into, and remain liable under, the applicable underlying lease and (3) the aggregate fair market value of the
property sold pursuant to all such Sale and Leaseback Transactions under this Section 7.13 shall not exceed $250,000,000.
7.14 Amendments
to and Prepayments of Additional Indebtedness.
(a) Amend
or modify any of the terms of any Additional Indebtedness if after giving effect to such amendment or modification the terms of such Additional
Indebtedness would not satisfy the requirements of clauses (iv) through (viii) of Section 7.03(h);
(b) Make
(or give any notice with respect thereto) any voluntary prepayment or redemption or acquisition for value of (including without limitation,
by way of depositing money or securities with the trustee with respect thereto before due for the purpose of paying when due), or refund,
refinance or exchange, any Additional Indebtedness except for (i) Junior Payments permitted by Section 7.06 and (ii) in
the case of the giving of notice with respect to any such voluntary prepayment, redemption, acquisition for value, refund, refinance or
exchange, any such notice given in connection with the repayment in full of all Obligations and the termination of the Aggregate Commitments;
(c) Amend
or modify any of the subordination provisions applicable to any Subordinated Indebtedness without the prior written consent of the Administrative
Agent; or
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(d) Make
any payments in respect of any Subordinated Indebtedness or Junior Secured Indebtedness in violation of the subordination provisions applicable
to such Subordinated Indebtedness or Junior Secured Indebtedness, as applicable.
7.15 Canadian
Pension Matters. Maintain, contribute to, or incur any liability or contingent liability in respect of a Canadian Defined Benefit
Pension Plan, except as a result of the consummation of a Permitted Acquisition, or with the prior written consent of the Administrative
Agent.
7.16 Sanctions.
Directly or knowingly indirectly, use any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make
available such Credit Extension or the proceeds of any Credit Extension to any Person, to fund any activities of or business with any
Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that
will result in a violation by any Person (including any Person participating in the transaction, whether as Lender, Arranger, Sustainability
Coordinator, Administrative Agent, L/C Issuer, Swing Line Lender, or otherwise) of Sanctions.
7.17 Anti-Corruption
Laws. Directly or knowingly indirectly use any Credit Extension or the proceeds of any Credit Extension for any purpose which would
breach the United States Foreign Corrupt Practices Act of 1977, the Corruption of Foreign Public Officials Act (Canada), the UK Bribery
Act 2010, and other similar anti-corruption legislation in other jurisdictions in which a Borrower or any of its Subsidiaries conducts
business or owns property.
7.18 Outbound
Investment Rules. Directly or indirectly, (a) be or become a “covered foreign person”, as that term is defined in
the Outbound Investment Rules, or (b) engage in (i) a “covered activity” or a “covered transaction”,
as each such term is defined in the Outbound Investment Rules, (ii) any activity or transaction that would constitute a “covered
activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, if the Company
or such Subsidiary were a U.S. Person (Outbound Investments), or (iii) any other activity that would cause the Administrative Agent
or any Lender to be in violation of the Outbound Investment Rules or cause the Administrative Agent or any Lender to be legally prohibited
by the Outbound Investment Rules from performing under this Agreement or any other Loan Document.
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7.19 Transfers
to Non-Loan Parties. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document, consummate any
transaction that results (whether by way of a Restricted Payment, Investment, Disposition, designation of a Restricted Subsidiary
as an Unrestricted Subsidiary, or otherwise, and whether in a single transaction or a series of transactions) in the transfer (including
an exclusive license) of any IP Rights that are material to the Company and its Restricted Subsidiaries (or the Equity Interests in any
Subsidiary that owns any such IP Rights) from the Company or any Restricted Subsidiary to (x) any Restricted Subsidiary that is not
a Loan Party (other than any such transfer from a Restricted Subsidiary that is not a Loan Party to a Restricted Subsidiary that is not
a Loan Party) or (y) any Affiliate that is not the Company or a Restricted Subsidiary unless, in the case of this clause (y),
such transfer is made on an arm’s length basis and, if the transferee is an Unrestricted Subsidiary, such transfer complies with
Section 6.20.
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.
Any Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, and in the currency required hereunder,
any amount of principal of any Loan or any L/C Obligation, or (ii) within five (5) Business Days after the same becomes due,
any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five (5) Business Days after the
same becomes due, any other amount payable hereunder or under any other Loan Document; or
(b) Specific
Covenants. Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Section 6.01,
6.02, 6.03(a), 6.05(a) or 6.10 or Article VII; provided that any such failure to
observe or perform any of the covenants set forth in Section 7.11 shall not constitute an Event of Default for purposes of
the Term B Loan or any Incremental Tranche B Term Facility unless and until the Administrative Agent or the Required Pro Rata Facilities
Lenders first exercise any remedy in accordance with this Article VIII in respect of such breach (and until such time, the
failure to comply with Section 7.11 shall only constitute an Event of Default with respect to the Aggregate Revolving Commitments,
the Term A Loan and any Incremental Tranche A Term Facilities); provided, further, that any Event of Default under any
of the covenants set forth in Section 7.11 may be amended, waived or otherwise modified from time to time by the Required
Pro Rata Facilities Lenders pursuant to Section 10.01; or
(c) Other
Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in clauses (a) or
(b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30)
days after the earlier of (i) a Responsible Officer of a Loan Party having actual knowledge of such failure, or (ii) receipt
by a Responsible Officer of the Company of notice from the Administrative Agent or any Lender of such failure; or
(d) Representations
and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Company
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 respect (or in any material respect if such representation or warranty is not by its terms already qualified
as to materiality or Material Adverse Effect) when made or deemed made; or
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(e) Cross-Default.
(i) The Company or any Restricted Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness
under Swap Contracts) having an aggregate principal amount (including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount and the continuation of such failure beyond any applicable grace or cure period,
or (B) after giving effect to any applicable grace or cure period, fails to observe or perform any other agreement or condition
relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto,
or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased
or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to
its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded (provided that any
breach of any covenant or agreement contained in Section 7.11 that may give rise to an event described in clause (B) above
shall not, by itself, constitute an Event of Default for purposes of the Term B Loan or any Incremental Tranche B Term Facility unless
and until the Administrative Agent or Required Pro Rata Facilities Lenders shall first exercise any remedy in accordance with this Article VIII
as a result of such breach); or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which the Company or any Restricted Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Company
or any Restricted Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Company
or such Restricted Subsidiary as a result thereof is greater than the Threshold Amount and, in the case of any Termination Event not
arising out of a default by the Company or any Restricted Subsidiary, such Swap Termination Value has not been paid by the Company or
such Restricted Subsidiary when due; or
(f) Insolvency
Proceedings, Etc. Any Loan Party or any Material Restricted Subsidiary institutes or consents to
the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; makes a proposal
to its creditors or files notice of its intention to do so, institutes any other proceeding under applicable Law seeking to adjudicate
it a bankrupt or an insolvent, or seeking liquidation, dissolution, winding-up, reorganization, compromise, arrangement, adjustment,
protection, moratorium, relief, stay of proceedings of creditors, composition of it or its debts, examinership, rescue process or any
other similar relief; or applies for or consents to the appointment of any receiver, receiver-manager, trustee, custodian, conservator,
liquidator, provisional liquidator, restructuring officer, rehabilitator, judicial manager, administrator, examiner, process adviser
or similar officer for it or for all or any material part of its property; or any receiver, receiver-manager, trustee, custodian, conservator,
liquidator, provisional liquidator, restructuring officer, rehabilitator, judicial manager, administrator, examiner, process adviser
or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed
for sixty (60) consecutive 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 sixty (60) calendar
days, or an order for relief is entered in any such proceeding; or
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(g) Inability
to Pay Debts; Attachment. (i) Subject to the immediately succeeding clause (iii), any Loan Party or any Material Restricted
Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, (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 thirty (30) days after its issue or levy, or (iii) any Singapore
Entity that is a Loan Party or a Material Restricted Subsidiary becomes or will be unable or admits in writing its inability or fails
generally to pay its debts as they become due; or
(h) Judgments.
There is entered against the Company or any Restricted Subsidiary
(i) 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 Threshold
Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any
one or more non-monetary final judgments that have, or would reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there
is a period of thirty (30) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise,
is not in effect; or
(i) ERISA
and Canadian Pension Plan Events. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted
or would reasonably be expected to result in liability of the Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan
or the PBGC in an aggregate amount in excess of the Threshold Amount, (ii) the Company 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 in an aggregate amount in excess of the Threshold Amount or (iii) any failure by any Loan Party
or any Subsidiary to perform its obligations under, or the incurrence by any Loan Party or any Subsidiary of any liability or contingent
liability in respect of, a Canadian Pension Plan which has resulted or could reasonably be expected to result in liability of any Loan
Party in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity
of Loan Documents. Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted
hereunder or satisfaction in full of all the Obligations (other than contingent indemnification obligations for which no claim or demand
has yet been made), ceases to be in full force and effect; or any Loan Party or any Subsidiary contests in any manner the validity or
enforceability of any Loan Document for any reason other than satisfaction in full of all the Obligations (other than contingent indemnification
obligations for which no claim or demand has yet been made); 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 provision of any Loan Document (other than upon satisfaction
in full of the Obligations (other than contingent indemnification obligations for which no claim or demand has yet been made)); or
(k) Change
of Control. There occurs any Change of Control; or
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(l) Subordinated
Indebtedness. The subordination provisions applicable to any Subordinated Indebtedness shall, in each case, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding
and enforceable against any holder of such Subordinated Indebtedness; or
(m) Declared
Company. Any Loan Party is declared by the Minister of Finance of Singapore to be a company to which Part 9 of the Companies
Act, 1967 of Singapore applies.
8.02 Remedies
Upon Event of Default. If any Event of Default occurs and is continuing:
(a) if
such Event of Default is an Event of Default specified in Section 8.01(b) above as a result of any Loan Party’s failure to perform or observe Section 7.11, the Administrative Agent shall, at the request
of, or may, with the consent of, the Required Pro Rata Facilities Lenders, take any or all of the following actions:
(i) declare
the commitment of each Revolving Lender to make Revolving Loans, the commitment of each Lender in respect of any unfunded Incremental
Tranche A Term Loan, any obligation of the Swing Line Lender to make Swing Line Loans and any obligation of the L/C Issuers to make L/C
Credit Extensions to be terminated, whereupon such commitments and obligations shall be terminated;
(ii) declare
the unpaid principal amount of all outstanding Revolving Loans, Swing Line Loans, Incremental Tranche A Term Loans, the Term A Loan,
all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document in respect
of the Revolving Commitments, Term A Loan and Incremental Tranche A Term Loans to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly waived by each Borrower; and
(iii) require
that the Borrowers Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto);
or
(b) if
such Event of Default is any Event of Default other than an Event of Default specified in Section 8.01(b) above as
a result of any Loan Party’s failure to perform or observe Section 7.11 (or, if (x) such Event of Default is
an Event of Default specified in Section 8.01(b) above as a result of any Loan Party’s failure to perform or
observe Section 7.11 and (y) the Administrative Agent has taken any of the actions described in the immediately
preceding clause (a)), 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:
(i) declare
the commitment of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit Extensions to be terminated, whereupon
such commitments and obligation shall be terminated;
(ii) 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 each Borrower;
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(iii) require
that the Borrowers Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto);
and
(iv) exercise
on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable law
or equity;
provided, however, that
upon the occurrence of an event described in Section 8.01(f) or an actual or deemed entry of an order for relief with
respect to any Borrower under the Bankruptcy Code (or any similar occurrence in any other Debtor Relief Laws), the obligation of each
Lender to make Loans and any obligation of the L/C Issuers 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 Borrowers 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.
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 Issuers (including fees, charges and disbursements of counsel to the respective Lenders and applicable
L/C Issuers payable in accordance with the terms of this Agreement and any of the other Loan Documents 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
(i) that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans and L/C Borrowings
and (ii) accrued and unpaid interest and fees with respect to any Specified Local Facility, all ratably among Bank of America or
any of its Affiliates (with respect to any Specified Local Facility), the Lenders and the L/C Issuers in proportion to the respective
amounts described in this clause Third payable to them;
Fourth, to payment
of that portion of the Obligations constituting (i) unpaid principal of the Loans and L/C Borrowings, (ii) Swap Termination
Values under any Secured Swap Contract (to the extent such Secured Swap Contract shall have been terminated and as to which the Administrative
Agent shall have received notice of such termination and the Swap Termination Value thereof), (iii) amounts owing under any Secured
Cash Management Agreements, (iv) obligations to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn
amount of Letters of Credit and (v) payment of the unpaid principal of any Specified Local Facility, all ratably among Bank of America
or any of its Affiliates (with respect to any Specified Local Facility), the Lenders (and in the case of Secured Swap Contracts, any Affiliate
of a Lender) and the L/C Issuers in proportion to the respective amounts described in this clause Fourth held by them;
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Fifth, to the Administrative
Agent for the account of each L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount
of Letters of Credit issued by it to the extent not otherwise Cash Collateralized by the Company pursuant to Sections 2.03 and
2.17; and
Last, the balance,
if any, after all of the Obligations have been indefeasibly paid in full (other than contingent indemnification obligations for which
no claim or demand has been made), to the applicable Loan Party or Loan Parties or as otherwise required by Law.
Subject to Sections 2.03(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. Notwithstanding the foregoing, payments and Cash Collateral provided by a Designated Borrower shall only
be applied to the Obligations of such Designated Borrower. Excluded Swap Obligations with respect to any Loan Party shall not be paid
with amounts received from such Loan Party or such Loan Party’s assets, but appropriate adjustments shall be made with respect to
payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section.
Notwithstanding anything in
this Section 8.03 to the contrary, amounts received from any Specified Non-U.S. Obligor or Specified U.S. Obligor with respect
to the Obligations shall only be applied to satisfy Non-U.S. Obligations.
Notwithstanding the foregoing,
Obligations arising under Secured Cash Management Agreements and Secured Swap Contracts shall be excluded from the application described
above if the Administrative Agent has not received a Secured Party Designation Notice, together with such supporting documentation as
the Administrative Agent may request, from the applicable Lender or Affiliate thereof, as the case may be (unless such Lender or Affiliate
is the Administrative Agent or an Affiliate thereof, in which case no Secured Party Designation Notice is required). Each Affiliate of
a Lender that is not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice,
be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX
for itself and its Affiliates as if a “Lender” party hereto. Notwithstanding the foregoing, payments and Cash Collateral provided
by a Designated Borrower shall only be applied to the Obligations of such Designated Borrower. Excluded Swap Obligations with respect
to any Loan Party shall not be paid with amounts received from such Loan Party or such Loan Party’s assets, but appropriate adjustments
shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in
this Section.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment
and Authority. Each of the Lenders and each of the L/C Issuers hereby irrevocably appoints Bank of America 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 (including, for the avoidance of doubt, representing each of the Lenders before
a Spanish notary in connection with the notarization of this Agreement (or any novation, amendment, supplement, restatement, replacement
or assignment) into a Spanish Public Document). The provisions of this Article are solely for the benefit of the Administrative
Agent, the Lenders and the L/C Issuers, and neither the Company 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.
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The Administrative Agent shall
also act as the “collateral agent” under the Loan Documents, and each of the Lenders (in its capacities as a Lender, Swing
Line Lender (if applicable), party to any Secured Swap Contract and party to any Secured Cash Management Agreement), each of the L/C Issuers
and other Secured Parties hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent (including, in respect
of any Collateral Documents governed under the laws of England and Wales, as security agent and security trustee, and accordingly, any
reference to “collateral agent” in this Agreement shall include the Administrative Agent acting as security agent and security
trustee) of such Lender, such L/C Issuer and the other Secured Parties for purposes of acquiring, holding (and including, in respect of
any Collateral Documents governed under the laws of England and Wales, holding on trust on behalf of the Secured Parties on the terms
contained in the Loan Documents) and enforcing any and all Liens on Collateral, together with such powers and discretion as are reasonably
incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any agent, co-agents, attorneys,
delegates, co-trustees, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for
purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising
any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of
this Article IX and Article X (including Section 10.04(c)), as though such agent, co-agents, attorneys,
delegates, co-trustees, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents as if set forth
in full herein with respect thereto.
Without limiting the powers
of the collateral agent pursuant to the terms hereof or of the other Loan Documents, for the purposes of holding any Liens granted by
any of the Loan Parties under the laws of the Province of Quebec pursuant to the Collateral Documents, each of the Lenders and each of
the L/C Issuers hereby acknowledges that the collateral agent shall be and act as the hypothecary representative of all present and future
Lenders (in its capacities as a Lender, Swing Line Lender (if applicable), party to any Secured Swap Contract and party to any Secured
Cash Management Agreement) and L/C Issuers for all purposes of Article 2692 of the Civil Code of Quebec (the “Hypothecary
Representative”). Each of the Secured Parties therefore appoints, to the extent necessary, the collateral agent as its Hypothecary
Representative to hold the Liens created pursuant to such Collateral Documents in order to secure the Obligations. The collateral agent
accepts to act as Hypothecary Representative of all present and future Secured Parties for all purposes of Article 2692 of the Civil
Code of Quebec.
Further, without limiting
the powers of the collateral agent pursuant to the terms hereof or of the other Loan Documents, for the purposes of holding any Liens
granted by any of the Loan Parties under the laws of Ireland and/or England and Wales pursuant to the Collateral Documents, the Administrative
Agent declares itself as trustee of the Collateral created thereby and each of the Lenders, the Swing Line Lender, each L/C Issuer and
each other Secured Party hereby acknowledges that the collateral agent shall be and act as trustee of that Collateral (whereby such trust
is to be recognized under the laws of Ireland and/or England and Wales, as applicable). Each of the Secured Parties therefore appoints,
to the extent necessary, the collateral agent as trustee to hold the Liens created pursuant to such Collateral Documents in order to
secure the Obligations. On acting as trustee of the Collateral, the Administrative Agent (together with any agents, co-agents, attorneys,
delegates, co-trustees, sub-agents and attorneys-in-fact appointed by the Administrative Agent in accordance with the terms of the Loan
Documents) shall have the protections, immunities, rights, powers, authorizations, indemnities and benefits conferred on it under and
by this Agreement and the other Loan Documents.
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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, own securities of,
act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Loan Party 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. Neither the Administrative Agent, any Arranger, nor any Sustainability Coordinator, as applicable, shall have any duties
or obligations except those expressly set forth herein and in the other Loan Documents, and their duties hereunder shall be administrative
in nature. Without limiting the generality of the foregoing, the Administrative Agent, each Arranger, or each Sustainability Coordinator,
as applicable, and their Related Parties:
(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, including for the avoidance
of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification
or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(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 any Loan Party or any of its Affiliates that is communicated to or obtained by the Person
serving as the Administrative Agent, an Arranger, a Sustainability Coordinator or any of their 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 as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative
Agent by the Company, a Lender or an 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.
None of the Sustainability
Coordinators shall be responsible for (or have any liability in respect of) reviewing, auditing, or otherwise evaluating any calculation
by the Company of the relevant SPTs and/or KPIs (or any of the data or computations that are part of or related to any such calculation)
in connection herewith or with any other Loan Documents.
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, extension,
renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the Administrative
Agent may presume that such condition is satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall have received
notice to the contrary from such Lender or such 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 Company), 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 agents, sub-agents, attorneys, delegates or co-trustees appointed by the Administrative
Agent. The Administrative Agent and any such agent, sub-agent, attorney, delegate or co-trustee 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 agent, sub-agent, attorney, delegate or co-trustee and to the Related Parties of the Administrative Agent and any such
agent, sub-agent, attorney, delegate or co-trustee 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 agents,
sub-agents, attorneys, delegates or co-trustees.
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9.06 Resignation
of Administrative Agent.
(a) The
Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Company. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company, and, at all times other
than during the existence of an Event of Default, with the Company’s consent (such consent not to be unreasonably withheld), 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
thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the
Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be
obligated to) on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the qualifications set forth
above; provided that in no event shall any such successor Administrative Agent be a Defaulting Lender. Whether or not a successor
has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b) If
the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required
Lenders may, to the extent permitted by applicable Law, by notice in writing to the Company and such Person remove such Person as Administrative
Agent and, in consultation with the Company and, at all times other than during the existence of an Event of Default, with the Company’s
consent (such consent not to be unreasonably withheld), appoint a successor. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required
Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such
notice on the Removal Effective Date.
(c) With
effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative
Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the
retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative
Agent is appointed) and (ii) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative
Agent, 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 each L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor Administrative
Agent as provided for above. 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 removed) Administrative
Agent (other than as provided in Section 3.01(g) and other than any rights to indemnity payments or other amounts owed
to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and
the retiring or removed 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 9.06). The fees payable by the Company
to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company
and such successor. After the retiring or removed Administrative Agent’s resignation or removal 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
or removed 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 (A) while the retiring or removed Administrative Agent was acting as Administrative Agent and (B) after
such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents,
including (1) acting as collateral agent or otherwise holding any collateral security on behalf of any of the Lenders and (2) in
respect of any actions taken in connection with transferring the agency to any successor Administrative Agent.
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(d) Any
resignation by or removal of Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as an L/C Issuer and Swing Line Lender. If Bank of America resigns
as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto, including
the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c).
If Bank of America 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 Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.05(c). Upon the
appointment by the Company of a successor L/C Issuer or Swing Line Lender hereunder (which successor shall in all cases be a Lender other
than a Defaulting Lender) and the consent thereto by such successor, (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 applicable, (b) the retiring L/C
Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan
Documents, and (c) 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 Bank of America to effectively assume the obligations of Bank
of America with respect to such Letters of Credit.
9.07 Non-Reliance
on Administrative Agent, Arrangers, Sustainability Coordinators and Other Lenders. Each Lender and each L/C Issuer expressly acknowledges
that none of the Administrative Agent, any Arranger nor any Sustainability Coordinator has made any representation or warranty to it,
and that no act by the Administrative Agent, any Arranger or any Sustainability Coordinator hereafter taken, including any consent to,
and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any
representation or warranty by the Administrative Agent, any Arranger or any Sustainability Coordinator to any Lender or any L/C Issuer
as to any matter, including whether the Administrative Agent, any Arranger or any Sustainability Coordinator has disclosed material information
in its (or its Related Parties’) possession. Each Lender and each L/C Issuer represents to the Administrative Agent, each Arranger
and each Sustainability Coordinator that it has, independently and without reliance upon the Administrative Agent, any Arranger, any
Sustainability Coordinator, 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 of, appraisal of, and investigation into, the business, prospects, operations, property, financial
and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws
relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the
Borrowers hereunder. Each Lender and each L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative
Agent, any Arranger, any Sustainability Coordinator, 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 credit analysis, appraisals and 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, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of the Loan Parties. Each Lender and each L/C Issuer represents and warrants that
(i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or
holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or L/C Issuer for the purpose of making,
acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or L/C Issuer,
and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each L/C Issuer
agrees not to assert a claim in contravention of the foregoing. Each Lender and each L/C Issuer represents and warrants that it is sophisticated
with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable
to such Lender or such L/C Issuer, and either it, or the Person exercising discretion in making its decision to make, acquire and/or
hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans
or providing such other facilities.
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9.08 No
Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the bookrunners or Arrangers listed on the cover page hereof,
nor any Sustainability Coordinator, 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, an Arranger, a Sustainability Coordinator, a Lender or an L/C Issuer
hereunder.
9.09 Administrative
Agent May File Proofs of Claim; Credit Bidding. 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 any 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 Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts
due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.03(h) and (i), 2.09 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, provisional liquidator, restructuring officer, sequestrator, administrator or other similar official in
any such judicial proceeding is hereby authorized by each Lender and each 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 Issuers,
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 2.09 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 any L/C Issuer
any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer
to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer in any such proceeding.
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The holders of the Obligations
hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the
Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in
lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any
portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections
363, 1123 or 1129 of the Bankruptcy Code, or any similar Debtor Relief Laws in any other jurisdictions to which a Loan Party is subject,
(b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction
of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable Law. In connection with any such
credit bid and purchase, the Obligations owed to the holders thereof shall be entitled to be, and shall be, credit bid on a ratable basis
(with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable
basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim
amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments
of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (i) the Administrative
Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance
of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle
or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote
of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by
the Required Lenders contained in clauses (a)(i) through (a)(x) of Section 10.01 of this Agreement),
and (iii) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason
(as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the
amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders
pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Obligations that
had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Lender or any acquisition vehicle
to take any further action.
9.10 Collateral
and Guaranty Matters. Without limiting the provisions of Section 9.09, each of the Lenders (including in its capacities
as a party to any Secured Cash Management Agreement and a party to any Secured Swap Contract) and each of the L/C Issuers irrevocably
authorize the Administrative Agent, at its option and in its discretion:
(a) to
release or authorize the release of any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon
the occurrence of the Facility Termination Date, (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of
as part of or in connection with any sale or other disposition permitted hereunder or under any other Loan Document, or (iii) subject
to Section 10.01, if approved, authorized or ratified in writing by the Required Lenders;
(b) to
subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien
on such property that is permitted by Section 7.01(i);
(c) to
release any Guarantor from its obligations under any Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction
permitted under the Loan Documents;
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(d) to
release any Lien granted to or held by the Administrative Agent under any Loan Document on the Equity Interests of any Unrestricted Subsidiary;
(e) at
any time the Specified Receivables Purchase Agreement or any Permitted Securitization Transaction is outstanding, release any Lien granted
to or held by the Administrative Agent under any Loan Document on (i) any Securitized Asset that is subject thereto and (ii) the
Equity Interests of any Special Purpose Subsidiary for such Permitted Securitization Transaction;
(f) to
subordinate or release any Lien granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such
property that is permitted by Section 7.01(dd); and
(g) to
enter into and perform each intercreditor agreement or subordination agreement contemplated hereby.
Upon request by the Administrative
Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its
interest in particular types or items of property, or to release any Guarantor (other than, for the avoidance of doubt, any Borrower)
from its obligations under the Guaranty pursuant to this Section 9.10.
The Administrative Agent shall
not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability
of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared
by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure
to monitor or maintain any portion of the Collateral.
9.11 Secured
Cash Management Agreements and Secured Swap Contracts. No Lender or Affiliate thereof party to a Secured Swap Contract or Secured
Cash Management Agreement that obtains the benefit of Section 8.03, any Guaranty or any Collateral by virtue of the provisions
hereof or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder
or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) or
to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of any Guaranty or any Collateral Document
(including any release or impairment with respect to any Guarantor) other than in its capacity as a Lender and, in such case, only to
the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary,
the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect
to, Obligations arising under Secured Cash Management Agreements and Secured Swap Contracts except to the extent expressly provided herein
and unless the Administrative Agent has received a Secured Party Designation Notice of such Obligations, together with such supporting
documentation as the Administrative Agent may request, from the applicable Lender or Affiliate thereof, as the case may be. The Administrative
Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations
arising under Secured Cash Management Agreements and Secured Swap Contracts in the case of the date that (a) all Commitments have
terminated, (b) all Obligations arising under the Loan Documents have been paid in full (other than contingent indemnification obligations
for which no claim or demand has yet been made), and (c) all Letters of Credit have terminated or expired (other than Letters of
Credit that have been Cash Collateralized).
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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 each Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Company 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,
(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) 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 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 each other Arranger and their respective Affiliates, and not,
for the avoidance of doubt, to or for the benefit of the Company or any other Loan Party, that none of the Administrative Agent, any
Arranger or any of their respective Affiliates is 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, each Arranger and their respective
Affiliates, in each case under this Agreement, any Loan Document or any documents related hereto or thereto).
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9.13 Spanish
Formalities.
(a) At
the reasonable request of the Administrative Agent, upon a Spanish Guarantor becoming a party to this Agreement, this Agreement shall
be raised to public by means of the execution of a Spanish Public Document by the Spanish Guarantor and the Administrative Agent for the
purposes contemplated in Article 517 et seq. of the Spanish Civil Procedural Act and other related provisions. Such Spanish Public
Document will include an authorization in favor of the Administrative Agent, on behalf of each Secured Party, to determine the amounts
due and payable under this Agreement, in accordance with this Agreement, that may be claimable in any executive proceeding for the purposes
of Articles 571 et seq. of the Spanish Civil Procedural Act.
(b) Each
party hereto hereby expressly authorizes the Administrative Agent, on behalf of the Secured Parties, to request and obtain from the Spanish
notary before whom this Agreement is raised to the status of a Spanish Public Document any further copy of this notarized Agreement. The
relevant Spanish Guarantor shall only bear the cost of the first authorized copy with or without enforcement effects (“primera
copia con o sin fuerza ejecutiva”) of such documents.
9.14 Spanish
Calculations; Executive Enforcement.
(a) The
parties hereto expressly agree that in the event of executive judicial enforcement (“acción ejecutiva”) in Spain,
the amount, solely for such purposes, due and payable (“líquido y exigible”) by the Borrowers to the Lenders
will be the balance reflected in the Register as provided in Section 10.06(c). The parties hereto expressly agree that such
balance shall be considered as an acknowledgement of debt and may be claimed pursuant to the same provisions of the Spanish Civil Code.
(b) The
balances shown in the Register, duly certified by the Administrative Agent, shall be admissible as evidence in any enforcement proceedings
in Spain, and in the absence of manifest error shall provide conclusive evidence (“dar fe”) of the liquid amounts due
and payable by the Borrowers under this Agreement under any such proceedings.
(c) The
Administrative Agent may start executive proceedings by presenting to any relevant Spanish court the following:
(i) an
original notarial first or authentic copy of this Agreement;
(ii) a
notarial document (“acta notarial”) incorporating the certificate of the Administrative Agent referred to in clause
(b) above, evidencing that the determination of the amounts due and payable by each of the Borrowers have been calculated as
agreed in this Agreement and that such amounts coincide with the balance shown in the Register maintained by the Administrative Agent
in connection with this Agreement and the Loan Documents in respect of each of the Borrowers; and
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(iii) a
notarial document (“acta notarial”) or a confirmatory fax (“burofax”) evidencing that the Spanish
obligor has been served notice for the amount that is due and payable.
Each Spanish Guarantor hereby authorizes
the Administrative Agent (and each Lender, as appropriate) to request and obtain certificates and documents issued by the Spanish notary
which formalizes this Agreement in order to evidence its compliance with the entries of his registry-book and the relevant entry date
for the purpose of Number 5º of Article 517 of the Spanish Civil Procedural Act, as well as to request and obtain from the Spanish
notary before whom this Agreement has been formalized, any notarial copy of such notarized documents. The cost of such certificates, documents
and copies will be for the account of the relevant Spanish Guarantor. The relevant Spanish Guarantor shall only bear the cost of the first
authorized copy with or without enforcement effects (“primera copia con o sin fuerza ejecutiva”) of such documents.
9.15 Recovery
of Erroneous Payments. Without limitation of any other provision in this Agreement, if at any time the Administrative Agent makes
a payment hereunder in error to any Credit Party, whether or not in respect of an Obligation due and owing by any Borrower at such time,
where such payment is a Rescindable Amount, then in any such event, each Credit Party receiving a Rescindable Amount severally agrees
to repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such Credit Party in Same Day Funds in the
currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by 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. Each Credit Party irrevocably waives any and all defenses,
including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid
by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Administrative
Agent shall inform each Credit Party promptly upon determining that any payment made to such Credit Party comprised, in whole or in part,
a Rescindable Amount.
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc.
(a) Except
as otherwise provided in this Section 10.01, no amendment or waiver of any provision of this Agreement or any other Loan Document,
and no consent to any departure by the Company or any other Loan Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Company 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:
(i) except
as provided in Section 4.01, waive any condition set forth in Section 4.01(a) without the written consent
of each Lender;
(ii) 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 whose Commitment is being extended, increased or reinstated (it being understood and agreed that a waiver of any
condition precedent set forth in Section 4.02 or of any Default or of a mandatory reduction in Commitments is not considered
an extension, increase or reinstatement in Commitments of any Lender);
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(iii) postpone
any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest,
fees or other amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction of the Aggregate Commitments hereunder
or under any other Loan Document without the written consent of each Lender directly affected thereby;
(iv) reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (b) of this
Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of
each Lender entitled to receive such amount (it being understood that neither of the following constitutes a reduction in the rate of
interest on any Loan or L/C Borrowing or any fees or other amounts: (A) any amendment to the definition of “Default Rate”
or waiver of any obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default Rate or (B) any amendment to
or waiver of any financial covenant hereunder (or any defined term or component defined term used therein) even if the effect of such
amendment or waiver would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder); provided
that (x) with respect to any MFN Protection for the benefit of the Term B Loan, only the consent of the Lenders holding in the aggregate
more than fifty percent (50%) of the outstanding amount of the Term B Loan shall be necessary to waive the benefit of the MFN Protection
for the Term B Loan and (y) with respect to any MFN Protection for the benefit of any then-outstanding Incremental Tranche B Term
Facility Commitments or Incremental Tranche B Term Loans, only the consent of the Lenders holding in the aggregate more than fifty percent
(50%) of the sum of the unfunded Incremental Tranche B Term Facility Commitments at such time, plus the outstanding Incremental
Tranche B Term Loans shall be necessary to waive the benefit of the MFN Protection for such Incremental Tranche B Term Facility Commitments
or Incremental Tranche B Term Loans;
(v) (A) change
Section 2.07, Section 2.14 or Section 8.03 in a manner that would alter the pro rata sharing
of commitment reductions or payments required thereby without the written consent of each Lender directly affected thereby, (B) subordinate,
or amend or make any other modification having the effect of subordinating, the Obligations to any other Indebtedness or other obligation,
without the written consent of each Lender or (C) except as permitted pursuant to Section 9.10(b) and (f),
subordinate, or amend or make any other modification having the effect of subordinating, the Liens securing the Obligations to Liens securing
any other Indebtedness or other obligations, without the written consent of each Lender;
(vi) change
any provision of this Section 10.01 or the definition of “Required Lenders”, “Required Pro Rata Facilities
Lenders”, “Required Revolving 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;
(vii) release
any Borrower without the consent of each Lender, or, except in connection with a transaction permitted under Section 7.04
or Section 7.05, release all or substantially all of the value of the Guaranty without the written consent of each Lender
whose Obligations are guaranteed thereby, except, in either case, to the extent any such release is permitted pursuant to Section 9.10
(in which case such release may be made by the Administrative Agent acting alone);
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(viii) release
or authorize the release of all or substantially all of the Collateral under the Collateral Documents without the written consent of each
Lender whose Obligations hereunder are secured by such Collateral, it being understood that to the extent that Collateral comprises assets
which are permitted to be sold pursuant to Section 7.05 or released pursuant to Section 9.10, such Collateral
may be released without the consent of any of the Lenders;
(ix) amend
Section 1.06 without the written consent of each Lender and L/C Issuer obligated to make Credit Extensions in Alternative
Currencies;
(x) change
Section 2.15 in a manner that would alter the requirement that each of the Lenders obligated to make Credit Extensions to
an Applicant Borrower approve the addition thereof as a Designated Borrower, without the written consent of each such Lender;
(xi) prior
to the termination of the Aggregate Revolving Commitments, unless also signed by the Required Revolving Lenders, no such amendment, waiver
or consent shall (A) waive any Default or Event of Default for purposes of Section 4.02(b), (B) amend, change, waive,
discharge or terminate Sections 4.02 or 8.01 in a manner adverse to the Revolving Lenders or (C) amend, change, waive,
discharge or terminate this clause (xi);
(xii) unless
also signed by Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the aggregate Outstanding Amount
of the Term Loans entitled to receive prepayments pursuant to Section 2.06(b), no such amendment, waiver or consent shall
(A) amend, change, waive, discharge or terminate Section 2.06(b)(v) so as to alter the manner of application of
proceeds of any mandatory prepayment required by Section 2.06(b)(ii), (iii), (iv), or (v) (other
than to allow the proceeds of such mandatory prepayments to be applied ratably with other Term Loans under this Agreement) or (B) amend,
change, waive, discharge or terminate this clause (xii) (other than to provide Lenders of other Term Loans with proportional
rights under this clause (xii));
(xiii) unless
in writing and signed by each L/C Issuer in addition to the Lenders required above, no amendment, waiver or consent shall affect the rights
or duties of the L/C Issuers under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it;
(xiv) unless
in writing and signed by the Swing Line Lender in addition to the Lenders required above, no amendment, waiver or consent shall affect
the rights or duties of the Swing Line Lender under this Agreement;
(xv) unless
in writing and signed by the Administrative Agent in addition to the Lenders required above, no amendment, waiver or consent shall affect
the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and
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(xvi) unless
in writing and signed by each Sustainability Coordinator in addition to the Lenders required above, no amendment, waiver or consent shall
affect the rights or duties of the Sustainability Coordinators under this Agreement or any other Loan Document.
(b) Notwithstanding
anything to the contrary in this Section 10.01:
(i) any
amendment, waiver or consent with respect to (A) Section 7.11 (or any defined term or component defined term used therein)
or any Default or Event of Default or exercise of remedies by the Required Pro Rata Facilities Lenders in respect or as a result thereof,
(B) the second proviso in Section 8.01(b), (C) clause (a) of Section 8.02 or (D) the
parenthetical provisions referencing Section 7.11 in Section 10.03 will not require the consent of the Required
Lenders but shall be effective if, and only if, signed by the Required Pro Rata Facilities Lenders and the Loan Parties and acknowledged
by the Administrative Agent;
(ii) the
Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto;
(iii) any
amendment, waiver or consent with respect to the definitions of “Alternative Currency Sublimit”, “Canadian Dollar Sublimit”,
“Letter of Credit Sublimit” and “Swing Line Sublimit”, Section 1.06, Section 2.03, Section 2.05
and Section 2.15 will not require the consent of the Required Lenders but shall be effective if, and only if, signed by the
Required Revolving Lenders, the Loan Parties and any party whose consent is required pursuant to clauses (a)(ix), (a)(x),
(a)(xiii), (a)(xiv) or (a)(xv) above and acknowledged by the Administrative Agent;
(iv) only
the written consent of the Administrative Agent and the Loan Parties shall be required to amend this Agreement solely to implement requirements
reasonably deemed necessary by the Administrative Agent to add a Designated Borrower hereunder or to obtain pledges of Equity Interests
in Non-U.S. Obligors in accordance with this Agreement (including pursuant to additional Collateral Documents);
(v) an
Incremental Facility Amendment shall be effective if signed only by Company (and any other applicable Borrower), the Administrative Agent
and each Person that agrees to provide a portion of the applicable Incremental Facility;
(vi) 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 (A) the Commitment of any Defaulting Lender may not be increased or extended
without the consent of such Lender and (B) any waiver, amendment or modification requiring the consent of all Lenders or each affected
Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the
consent of such Defaulting Lender;
(vii) each
Lender is entitled to vote as such Lender sees fit on any bankruptcy or insolvency reorganization plan that affects the Loans, and each
Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions
set forth herein;
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(viii) the
Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding and such determination shall be binding on all of the Lenders;
(ix) this
Agreement may be amended with the written consent of only the Company, the Administrative Agent, the L/C Issuers and the Lenders obligated
to make Credit Extensions in Alternative Currencies to amend the definition of “Alternative Currency”, “Alternative
Currency Daily Rate” or “Alternative Currency Term Rate” solely to add additional currency options and the applicable
interest rate with respect thereto, in each case solely to the extent permitted pursuant to Section 1.06;
(x) only
the written consent of the Administrative Agent and, subject to the applicable provisions of Section 3.07, the Company shall
be required to make amendments contemplated by Section 3.07;
(xi) this
Agreement may be amended and restated in accordance with this Section 10.01 but without the consent of a specific Lender if,
upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated),
the Commitments of such Lender shall have terminated, such Lender shall have no other commitment or other obligation hereunder and shall
have been paid in full all principal, interest and other amounts then owing to it or then accrued for its account under this Agreement;
(xii) only
the written consent of the Administrative Agent and the Company shall be required to amend, modify or supplement this Agreement or any
other Loan Document to cure or correct administrative errors or omissions, any ambiguity, omission, defect or inconsistency or to effect
administrative changes or to extend an existing Lien over additional property, and such amendment shall become effective without any further
consent of any other party to such Loan Document so long as (A) such amendment, modification or supplement does not adversely affect
the rights of any Lender or other holder of Obligations in any material respect and (B) the Lenders shall have received at least
five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business
Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to
such amendment;
(xiii) only
the written consent of the Administrative Agent and the Company shall be required to amend, modify or supplement this Agreement or any
other Loan Document to effect changes reasonably deemed necessary by the Administrative Agent and the Company in connection with the
Accounting Standard Change, and such amendment shall become effective without any further consent of any other party to such Loan Document
so long as (A) such amendment, modification or supplement does not affect the rights of any Lender or other holder of Obligations
disproportionately adversely relative to other affected Lenders or other holders of Obligations and (B) the Lenders shall have received
at least five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within
five (5) Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required
Lenders object to such amendment;
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(xiv) in
connection with an amendment that addresses solely a repricing transaction in which any class of Term Loans is refinanced with a replacement
class of term loans under this Agreement bearing (or is modified in such a manner such that the resulting term loans bear) a lower “effective
yield” (including one or more of upfront fees, interest rate spreads, interest rate benchmark floors, original issue discount and
prepayment premiums, but excluding the effect of any arrangement, structuring, syndication or other fees payable in connection therewith
that are not shared with all lenders or holders of such new or modified term loans) (a “Permitted Repricing Amendment”),
such Permitted Repricing Amendment shall become effective if signed by the Loan Parties, the Administrative Agent and the Lenders holding
term loans subject to such permitted repricing transaction that will continue as a Lender in respect of the repriced tranche of term loans
or modified term loans (without the consent of any other party to this Agreement or any other Loan Document); and
(xv) in
order to implement any ESG Amendment, this Agreement and the other Loan Documents may be amended in accordance with Section 2.21.
(c) In
addition, notwithstanding anything to the contrary in this Section 10.01, the Company may, by written notice to the Administrative
Agent from time to time, make one or more offers (each, a “Loan Modification Offer”) to all the Lenders holdings Commitments
and/or Loans of a particular class or tranche to make one or more amendments or modifications to (i) allow the maturity of such
Commitments or Loans of the accepting Lenders to be extended, (ii) modify the Applicable Rate and/or fees payable with respect to
such Loans and Commitments of the accepting Lenders, (iii) modify any covenants or other provisions or add new covenants or provisions
that are agreed between the Company, the Administrative Agent and the Accepting Lenders; provided that such modified or new covenants
and provisions are applicable only during periods after the latest Maturity Date that is in effect on the effective date of such amendment,
and (iv) any other amendment to a Loan Document required to give effect to the amendments described in clauses (i), (ii) and
(iii) of this paragraph (“Permitted Amendments”, and any amendment to this Agreement to implement Permitted
Amendments, a “Loan Modification Agreement”) pursuant to procedures reasonably specified by the Administrative Agent
and reasonably acceptable to the Company. Such notice shall set forth (x) the terms and conditions of the requested Permitted Amendments
and (y) the date on which such Permitted Amendments are requested to become effective. Permitted Amendments shall become effective
only with respect to the applicable class or tranche of Commitments and/or Loans of the Lenders that accept the applicable Loan Modification
Offer (such Lenders, the “Accepting Lenders”) and, in the case of any Accepting Lender, only with respect to such
Lender’s Commitments and/or Loans as to which such Lender’s acceptance has been made. The Company, each other Borrower and
each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation
as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions
thereof, and the Loan Parties shall also deliver such resolutions, opinions and other documents as reasonably requested by the Administrative
Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of
the parties hereto hereby agrees that (1) upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed
amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendments evidenced thereby
and only with respect to the applicable class or tranche of Commitments and Loans of the Accepting Lenders as to which such Lenders’
acceptance has been made, (2) any applicable Lender who is not an Accepting Lender may be replaced by the Company in accordance
with Section 10.13, and (3) to the extent relating to Revolving Commitments and Revolving Loans, the Administrative
Agent and the Company shall be permitted to make any amendments or modifications to any Loan Documents necessary to allow any borrowings,
prepayments, participations in Letters of Credit and Swing Line Loans and commitment reductions to be ratable across each class of Revolving
Commitments the mechanics for which may be implemented through the applicable Loan Modification Agreement and may include technical changes
related to the borrowing and repayment procedures of the Lenders; provided that with the consent of the Accepting Lenders such
prepayments and commitment reductions and reductions in participations in Letters of Credit and Swing Line Loans may be applied on a
non-ratable basis to the class of non-Accepting Lenders.
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(d) In
addition, notwithstanding anything to the contrary in this Section 10.01, this Agreement and any other Loan Document may be
amended with only the consent of the Company and the Administrative Agent solely to the extent necessary to incorporate jurisdiction-specific
provisions deemed reasonably necessary or appropriate by the Company, the Administrative Agent and their respective legal counsel in connection
with the joinder of any Subsidiary as a Guarantor in accordance with the terms of Section 6.14 and the granting of security
interests by such Subsidiary in accordance with the terms of Section 6.15.
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 clause (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows, 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 Company or any other Loan Party, the Administrative Agent, an L/C Issuer or the Swing Line Lender, to the address, facsimile 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, facsimile 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 Company).
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 facsimile shall be deemed to have been given when sent (except that, if not given during normal
business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient).
Notices and other communications delivered through electronic communications to the extent provided in clause (b) below, shall
be effective as provided in such clause (b).
(b) Electronic
Communications. Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by
electronic communication (including email, FpML messaging, and Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices to any Lender or any L/C Issuer pursuant to Article II
if such Lender or such 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, the Swing Line Lender, any L/C Issuer or the Company
may each, 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.
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Unless the Administrative
Agent otherwise prescribes, (i) notices and other communications sent to an email 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 email or other written acknowledgement), 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 email address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the website address therefor; provided that, for both
clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of
the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient.
(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 any Borrower, any Lender, any 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 Company’s, any Loan Party’s or the Administrative Agent’s
transmission of Borrower Materials or notices through the platform, any other electronic platform or electronic messaging service, or
through the Internet, except to the extent such losses, claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Agent
Party; provided that in no event shall any Agent Party have any liability to any Borrower or any Subsidiary, any Lender, any L/C
Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d) Change
of Address, Etc. Each of the Borrowers, the Administrative Agent, each L/C Issuer and the Swing Line Lender may change its
address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each
other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the
Company, the Administrative Agent, the L/C Issuers 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, facsimile 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 Canadian federal and provincial securities laws and 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 Company or
its securities for purposes of Canadian federal and provincial securities laws or United States federal or state securities
laws.
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(e) Reliance
by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to
rely and act upon any notices (including telephonic notices, Loan Notices, Letter of Credit Applications and Swing Line Loan
Notices) purportedly given by or on behalf of any Loan Party 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 Company shall indemnify the Administrative Agent,
each 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 any Loan Party, except to the extent that such
losses, costs, expenses or liabilities are determined by a court of competent jurisdiction in a final and non-appealable judgment to
have resulted from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement or any other Loan
Document by, the Administrative Agent, such L/C Issuer or such Lender, or, in each case, any of its Related Parties, or, such
Related Party, as applicable. 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 or the Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder or under any other Loan Document 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, and provided under each other
Loan Document, 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 all the L/C Issuers (or in its own name as creditor of Parallel Debt, as applicable); 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) any 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 (or, in the case of any Event of
Default arising from a breach of Section 7.11, the Required Pro Rata Facilities Lenders shall have the rights otherwise
ascribed to the Administrative Agent pursuant to Section 8.02 with respect to the Aggregate Revolving Commitments, the
Term A Loan, the Incremental Tranche A Term Loans and the Obligations in respect thereof) 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 (or, in the case of any Event of Default arising from a breach of Section 7.11, any Lender with a
Revolving Commitment, Revolving Credit Exposure, portion of the Term A Loan or Incremental Tranche A Term Loan may, with the consent
of the Required Pro Rata Facilities Lenders, enforce any rights and remedies available to it with respect to the Aggregate Revolving
Commitments, the Term A Loan, the Incremental Tranche A Term Loans and the Obligations in respect thereof and as authorized by the
Required Pro Rata Facilities Lenders).
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10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs
and Expenses. The Company shall pay (i) all reasonable and documented out-of-pocket fees and expenses incurred by the
Administrative Agent, BofA Securities, in its capacity as a Sustainability Coordinator, each Arranger, each L/C Issuer and their
respective Affiliates (but limited, in the case of legal fees and expenses, to the reasonable and documented and invoiced fees and
expenses of one firm of Canadian counsel and one firm of U.S. counsel to the Administrative Agent, the Sustainability Coordinators,
the Arrangers, the L/C Issuers and their respective Affiliates, taken as a whole, and, if necessary, one firm of regulatory counsel
and one firm of local counsel in each applicable jurisdiction (which may be a single firm for multiple jurisdictions) to all such
Persons, taken as a whole (and except allocated costs of in-house counsel) (and, in the case of an actual or perceived conflict of
interest between or among such Persons, of another firm of Canadian counsel, another firm of U.S. counsel, another firm of
regulatory counsel and another firm of local counsel in each applicable jurisdiction for all such affected Persons taken as a whole,
repeated until no such actual or perceived conflict exists among such Persons taken as a whole)), 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 each
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 out-of-pocket expenses incurred by the Administrative Agent, any Lender or any L/C Issuer (but
limited, in the case of legal fees and expenses, to the reasonable and documented and invoiced fees and expenses of one firm of
Canadian counsel and one firm of U.S. counsel to the Administrative Agent, the Arrangers, the Lenders, the L/C Issuers and their
respective Affiliates, taken as a whole, and, if necessary, one firm of regulatory counsel and one firm of local counsel in each
applicable jurisdiction (which may be a single firm for multiple jurisdictions) to all such Persons, taken as a whole (and except
allocated costs of in-house counsel) (and, in the case of an actual or perceived conflict of interest between or among such Persons,
of another firm of Canadian counsel, another firm of U.S. counsel, another firm of regulatory counsel and another firm of local
counsel in each applicable jurisdiction for all such affected Persons taken as a whole, repeated until no such actual or perceived
conflict exists among such Persons taken as a whole)) 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.
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(b) Indemnification
by the Company. The Company shall indemnify the Administrative Agent (and any agent, sub-agent, co-agent, attorney or co-trustee
thereof or delegate, administrator, receiver or administrative receiver appointed by the Administrative Agent pursuant to the terms
of the Loan Documents), each Arranger, each Sustainability Coordinator, each Lender and each 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 reasonable, documented and invoiced out-of-pocket
expenses (limited, in the case of legal fees and expenses, to one firm of Canadian counsel and one firm of U.S. counsel for all
Indemnitees taken as a whole and, if necessary, one firm of regulatory counsel and one firm of local counsel in each applicable
jurisdiction (which may be a single firm for multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an
actual or perceived conflict of interest, of another firm of Canadian counsel, another firm of U.S. counsel, another firm of
regulatory counsel and another firm of local counsel in each applicable jurisdiction for all such affected Indemnitees taken as a
whole) (in each case, excluding allocated costs of in-house counsel)), incurred by any Indemnitee or asserted or awarded against any
Indemnitee by any Person (including the Company or any other Loan Party) other than such Indemnitee and its Related Parties 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 (including, without limitation, the Indemnitee’s reliance on any
Communication executed using an Electronic Signature, or in the form of an Electronic Record), 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 an 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 a Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to a Loan Party 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 Company 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 reasonable, documented and invoiced
out-of-pocket expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from (a) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Specified
Parties or (b) a material breach of such Indemnitee’s obligations (or any of its Related Specified Parties’
obligations) hereunder or under any other Loan Document, (y) arise solely out of, or result from, a claim, litigation,
investigation or proceeding brought by one Indemnitee against another Indemnitee except to the extent such claim (1) involves
any action or inaction by the Company or any Subsidiary or (2) relates to any action or inaction of such Indemnitee in its
capacity as Administrative Agent (or any sub-agent thereof), Arranger or similar title (including, without limitation, arranger,
bookrunner, syndication agent and documentation agent) or Sustainability Coordinator, or (z) relates to any settlement entered
into by such Indemnitee without the Company’s written consent (such consent not to be unreasonably withheld or delayed); provided
that if such settlement is reached with the Company’s written consent, or if there is a final and non-appealable judgment by a
court of competent jurisdiction in any related proceeding, the Company agrees to indemnify and hold harmless each Indemnitee in the
manner and to the extent set forth above; provided, further that the Company shall be deemed to have consented to any
such settlement unless the Company shall object thereto by written notice to the applicable Indemnitee within ten (10) Business
Days after having received notice thereof. Without limiting the provisions of Section 3.01(c), this Section 10.04(b) shall
not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax
claim.
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(c) Reimbursement
by Lenders. To the extent that the Company for any reason fails to indefeasibly pay any amount required under clauses (a) or
(b) of this Section 10.04 to be paid by it to the Administrative Agent (or any sub-agent thereof), any L/C Issuer,
the Swing Line Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), such L/C Issuer, the Swing Line Lender 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 based on each Lender’s
share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted
by such Lender), such payment to be made severally among them based on such Lender’s Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought); provided further 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 such L/C Issuer or the Swing Line Lender 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), such L/C Issuer or the Swing Line Lender in connection with
such capacity. The obligations of the Lenders under this clause (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, no party hereto shall assert, and each party hereto
hereby waives, and acknowledges that no other Person shall have, any claim against any party hereto, 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; provided that nothing contained in this clause (d) shall
limit the Company’s indemnification obligations set forth above to the extent such special, indirect, consequential or punitive
damages are included in any third party claim in connection with which such Indemnitee is entitled to indemnification hereunder. No Indemnitee
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, bad faith 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 (10) Business Days after demand therefor.
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(f) Survival.
The agreements in this Section and the indemnity provisions of Section 10.02(e) shall survive the resignation
of the Administrative Agent, an L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the
Aggregate Commitments, the repayment, satisfaction or discharge of all the other Obligations and the Facility Termination Date.
10.05 Payments Set Aside.
To the extent that any payment by or on behalf of any Loan Party is made to the Administrative Agent, any L/C Issuer or any Lender,
or the Administrative Agent, any 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, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee,
receiver, administrator 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 each 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 applicable Overnight Rate from time to time in effect, in the applicable currency of such recovery or payment. The
obligations of the Lenders and the L/C Issuers under clause (b) of the preceding sentence shall survive the payment in full
of the Obligations and the termination of this Agreement.
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 Company 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 (other than to the extent expressly permitted under Section 2.16(k)(ii) or,
in the case of the Company or any other Loan Party, Section 7.04) except (i) to an assignee in accordance with the provisions
of clause (b) of this Section 10.06, (ii) by way of participation in accordance with the provisions of clause
(d) of this Section 10.06, or (iii) by way of pledge or assignment of a security interest subject to the restrictions
of clause (f) of this Section 10.06, (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 clause (d) of this
Section 10.06 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the
L/C Issuers 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 clause (b), participations in L/C Obligations
and in Swing Line Loans) at the time owing to it); provided that (in each case with respect to any credit facility hereunder) any
such assignment shall be subject to the following conditions:
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(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 (in each case with respect to any credit facility provided hereunder) or contemporaneous assignments to related Approved Funds (determined
after giving effect to such Assignments) that equal at least the amount specified in clause (b)(i)(B) of this Section 10.06
in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be
assigned; and
(B) in
any case not described in clause (b)(i)(A) of this Section 10.06, the aggregate amount of the Commitment (which
for this purpose includes Loans outstanding thereunder) or, if the applicable 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 in the case of any assignment in respect of the Revolving Facility,
or $1,000,000, in the case of any assignment in respect of the Term Facility unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or
delayed).
(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 (A) apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans or (B) prohibit any Lender
from assigning all or a portion of its rights and obligations among the revolving credit facility or term loan facility provided hereunder
on a non-pro rata basis;
(iii) Required
Consents. No consent shall be required for any assignment except to the extent required by clause (b)(i)(B) of this Section 10.06
and, in addition:
(A) the
consent of the Company (such consent not to be unreasonably withheld or delayed) 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 Company shall be deemed to have consented to any such assignment unless it shall object thereto
by written notice to the Administrative Agent within seven (7) Business Days after having received written notice thereof;
(B) the
consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in
respect of (1) any unfunded commitment to a term loan facility provided hereunder or any Revolving Commitment if such
assignment is to a Person that is not a Lender with a Commitment in respect of the applicable credit facility subject to such
assignment, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (2) any Term Facility to a Person
that is not a Lender, an Affiliate of a Lender or an Approved Fund;
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(C) the
consent of each 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 in respect
of Revolving Loans and Revolving Commitments.
(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) Spanish
Public Deed. The parties to each assignment shall, at the request of the Administrative Agent, promptly raise the duly completed Assignment
and Assumption to the status of a Spanish Public Document in the form of “escritura pública” in which the new
Lender will appoint the Administrative Agent as its Administrative Agent and representative pursuant to the terms of Article IX
and any other terms relating to the rights, powers and duties of the Administrative Agent hereunder, including with respect to the release
of the Administrative Agent, to the extent legally possible, from any restriction related to conflict of interest, representing multiple
parties (“multirepresentación”) and self-dealing (“autocontratación”). This obligation
shall not affect the Company or any of the Company’s Affiliates or Subsidiaries and any costs resulting from raising the Assignment
and Assumption to the status of a Spanish Public Document in the form of “escritura pública” shall not be borne
by the Company or any of the Company’s Affiliates or Subsidiaries. In relation to the assignment or transfer of any security interest
granted pursuant to a Collateral Document governed by Spanish law or any guarantee granted by a Spanish Guarantor under Article XI
or any other Loan Document, the security created under, together with all rights and remedies arising under, such Collateral Document
governed by Spanish law shall be deemed to have been automatically transferred to the new Lender and maintained in full force and effect,
in accordance with Article 1,528 of the Spanish Civil Code and for the purposes of Article 1,204 of the Spanish Civil Code.
(vi) No
Assignment to Certain Persons. No such assignment shall be made (A) to the Company or any of the Company’s Affiliates or
Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries or to any Disqualified Institution, or to 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 (or to a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person).
(vii) No
Assignment Resulting in Additional Indemnified Taxes, etc. Without the written consent of the Company, no such assignment
shall be made to any Person that, on the effective date of such assignment, through its Lending Offices, (A) is not capable of
lending to the Borrowers without the imposition of any additional Taxes or Mandatory Costs that would require indemnification
payments by any of the Borrowers under this Agreement or (B) is not capable of lending in the Alternative Currencies or at the
applicable interest rates.
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(viii) 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 Company 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, any L/C Issuer 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 clause (c) of this Section 10.06, 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;
provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will
constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon
request, each 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 clause (d) of this Section 10.06.
(c) Register.
The Administrative Agent, acting solely for this purpose as an agent of the Borrowers (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 (or
the equivalent thereof in electronic form) 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 Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for
inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
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(d) Participations.
Any Lender may at any time, without the consent of, or notice to, any Borrower or the Administrative Agent, sell participations to any
Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit
of a natural Person, a Defaulting Lender or the Company or any of the Company’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 Borrowers, the Administrative Agent, the Lenders
and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.04(c) without
regard to the existence of any participation.
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 Sections 10.01(a)(i) through Section 10.01(a)(x) that
directly affects such Participant. Subject to clause (e) of this Section 10.06, each 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 clause (b) of this Section 10.06 (it
being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells
the participation); provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06
and 10.13 as if it were an assignee under clause (b) of this Section 10.06 and (B) shall not be
entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the
Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement
to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
Each Lender that sells a participation agrees, at the Company’s request and expense, to use reasonable efforts to cooperate
with the Company to effectuate the provisions of Section 3.06 with respect to any Participant. 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
that such Participant agrees to be subject to Section 2.14 as though it were a Lender. Each Lender that sells a
participation shall, acting solely for this purpose as a non-fiduciary agent of the Company, 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 United States Treasury
Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative
Agent) shall have no responsibility for maintaining a Participant Register.
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(e) Limitation
on 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, except to the
extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable
participation. Each Lender that sells a participation agrees, at the Company’s request and expense, to use reasonable efforts to
cooperate with the Company to effectuate the provisions of Section 3.06(b) with respect to any Participant. A Participant
that would be a Non-U.S. Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Company
is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, 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 without requiring any additional formalities not required pursuant
to this Section 10.06 (including, without limitation, any notification to the Loan Parties of the relevant transfer or assignment,
or the execution of any transfer or assignment document, in each case, as a Spanish Public Document or the notarization of the relevant
document in any other country), 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
any Lender acting as an L/C Issuer or Swing Line Lender assigns all of its Revolving Commitment and Revolving Loans pursuant to clause
(b) above, such L/C Issuer or Swing Line Lender may, (i) upon thirty (30) days’ prior written notice to the
Company and the Lenders, resign as an L/C Issuer and/or (ii) upon thirty (30) days’ prior written notice to the Company,
resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Company 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 Company to appoint any such successor shall affect the resignation of such lender as L/C Issuer or Swing Line Lender,
as the case may be. If any Lender resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of an 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 Loans or fund risk participations
in Unreimbursed Amounts pursuant to Section 2.03(c)). If any Lender 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 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 and the consent thereto by such successor, (1) 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 (2) the
successor L/C Issuer shall issue letters of credit in substitution for the applicable Letters of Credit, if any, outstanding at the
time of such succession or make other arrangements satisfactory to such resigning L/C Issuer to effectively assume the obligations
of such resigning L/C Issuer with respect to such Letters of Credit.
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(h) Disqualified
Institutions.
(i) Notwithstanding
anything to the contrary set forth in this Section 10.06, no assignment or, to the extent the DQ List has been posted on the
Platform for all Lenders, participation shall be made to any Person that was a Disqualified Institution as of the date (the “Trade
Date”) on which the applicable Lender entered into a binding agreement to sell and assign or participate all or a portion of
its rights and obligations under this Agreement to such Person (unless the Company has consented to such assignment as otherwise contemplated
by this Section 10.06, in which case such Person will not be considered a Disqualified Institution for the purpose of such
assignment or participation). For the avoidance of doubt, with respect to any assignee or participant that becomes a Disqualified Institution
after the applicable Trade Date (including as a result of the delivery of a notice pursuant to, and/or the expiration of the notice period
referred to in, the definition of “Disqualified Institution”), such assignee shall not retroactively be considered a Disqualified
Institution. Any assignment in violation of this clause (h)(i) shall not be void, but the other provisions of this clause
(g) shall apply.
(ii) If
any assignment or participation is made to any Disqualified Institution without the Company’s prior consent in violation of clause
(i) above, the Company may, at its sole expense and effort, upon notice to the applicable Disqualified Institution and the Administrative
Agent, (A) terminate any Revolving Commitment of such Disqualified Institution and repay (or cause the other Borrowers to repay)
all obligations of the Borrowers owing to such Disqualified Institution in connection with such Revolving Commitment, (B) in the
case of outstanding Term Loans held by Disqualified Institutions, prepay such Term Loan by paying the lesser of (x) the principal
amount thereof and (y) the amount that such Disqualified Institution paid to acquire such Term Loans, in each case plus accrued
interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and under the other Loan Documents
and/or (C) require such Disqualified Institution to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in this Section 10.06), all of its interest, rights and obligations under this Agreement and related
Loan Documents to an Eligible Assignee that shall assume such obligations at the lesser of (x) the principal amount thereof and (y) the
amount that such Disqualified Institution paid to acquire such interests, rights and obligations, in each case plus accrued interest,
accrued fees and all other amounts (other than principal amounts) payable to it hereunder and other the other Loan Documents; provided
that (i) the Company or the assigning Disqualified Institution shall have paid to the Administrative Agent the assignment fee (if
any) specified in Section 10.06(b), (ii) such assignment does not conflict with applicable Laws and (iii) in the
case of clause (B), the Borrowers shall not use the proceeds from any Loans to prepay Term Loans held by Disqualified Institutions.
(iii) Notwithstanding
anything to the contrary contained in this Agreement, Disqualified Institutions (A) will not (x) have the right to receive
information, reports or other materials provided to Lenders by the Company, the Administrative Agent or any other Lender,
(y) attend or participate in meetings attended by the Lenders and the Administrative Agent, or (z) access any electronic
site established for the Lenders or confidential communications from counsel to or financial advisors of the Administrative Agent or
the Lenders and (B) (x) for purposes of any consent to any amendment, waiver or modification of, or any action under, and
for the purpose of any direction to the Administrative Agent or any Lender to undertake any action (or refrain from taking any
action) under this Agreement or any other Loan Document, each Disqualified Institution will be deemed to have consented in the same
proportion as the Lenders that are not Disqualified Institutions consented to such matter, and (y) for purposes of voting on
any plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws (“Plan of Reorganization”),
each Disqualified Institution party hereto hereby agrees (1) not to vote on such Plan of Reorganization, (2) if such
Disqualified Institution does vote on such Plan of Reorganization notwithstanding the restriction in the foregoing clause
(1), such vote will be deemed not to be in good faith and shall be “designated” pursuant to
Section 1126(e) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws), and such vote shall not
be counted in determining whether the applicable class has accepted or rejected such Plan of Reorganization in accordance with
Section 1126(c) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and (3) not to
contest any request by any party for a determination by any applicable court of competent jurisdiction effectuating the foregoing clause
(2).
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(iv) The
Administrative Agent shall have the right, and the Company hereby expressly authorizes the Administrative Agent, to provide the list
of Disqualified Institutions provided by the Company and any updates thereto from time to time (collectively, the “DQ
List”) to each Lender requesting the same.
10.07
Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and the L/C Issuers agrees to
maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its
Affiliates, its auditors and its and its Affiliates’ respective Related Parties (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 required or requested by any regulatory authority purporting to have jurisdiction over such
Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance
Commissioners), in which case the Administrative Agent, such Lender or such L/C Issuer shall (i) except with respect to any
audit or examination conducted by accountants or any governmental, regulatory, or self-regulatory authority exercising examination
or regulatory authority, to the extent practicable and permitted by Law, notify the Company promptly in advance thereof and
(ii) use commercially reasonable efforts to ensure that any such Information disclosed is accorded confidential treatment,
(c) to the extent required by applicable laws or regulations, by any compulsory legal process or pursuant to the order of any
court or administrative agency in any pending legal, judicial or administrative proceeding, in which case the Administrative Agent,
such Lender or such L/C Issuer shall (i) notify the Company of the proposed disclosure in advance to the extent not prohibited
by Law, compulsory legal process or the applicable administrative agency; provided if the Administrative Agent, such Lender
or such L/C Issuer is unable to notify the Company in advance of such disclosure, such notice shall be delivered promptly thereafter
to the extent practicable and permitted by Law and (ii) use commercially reasonable efforts to ensure that any such Information
disclosed is accorded confidential treatment, (d) to any other party hereto; provided that no material non-public
information with respect to the Company or its Affiliates, or the respective securities of any of the foregoing, may be disclosed to
any Public Lender, (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 (it being understood and
agreed that any “click through” confidentiality agreement used on SyndTrak is acceptable to the parties hereto for
purposes of satisfying the requirements of the exception contemplated in this clause (f)), to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or any
Eligible Assignee invited to be a Lender pursuant to Section 2.16 or (ii) any actual or prospective party (or its
Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to any of the
Borrowers and their obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating
agency in connection with rating the Company or its Subsidiaries or the credit facilities provided hereunder, (ii) the CUSIP
Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers
with respect to the credit facilities provided hereunder or (iii) any insurance broker or provider of credit insurance to such
Person, (h) with the prior written consent of the Company, 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, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Company; provided
that in no event shall any disclosure of Information be made to any Disqualified Institution. In addition, the Administrative Agent
and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar
service providers to the lending industry and service providers to the Administrative Agent and the Lenders in connection with the
administration of this Agreement, the other Loan Documents, and the Commitments.
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For purposes of this Section,
“Information” means all information received from the Company or any Subsidiary relating to the Company or any Subsidiary
or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or any
L/C Issuer on a nonconfidential basis prior to disclosure by the Company or any Subsidiary. 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.
For the avoidance of doubt, nothing herein prohibits any individual from communicating or disclosing information regarding suspected violations
of laws, rules, or regulations to a governmental, regulatory, or self-regulatory authority without any notification to any Person.
Each of the Administrative
Agent, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning
the Company 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 Canadian federal
and provincial securities laws and United States federal and state securities Laws.
10.08 Right
of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, each 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, such L/C Issuer or any such Affiliate to or for
the credit or the account of the Company or any other Loan Party against any and all of the obligations of the Company or such Loan
Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer or their
respective Affiliates, irrespective of whether or not such Lender, L/C Issuer or Affiliate shall have made any demand under this
Agreement or any other Loan Document and although such obligations of the Company or such Loan Party may be contingent or unmatured
or are owed to a branch, office or Affiliate of such Lender or such L/C Issuer different from the branch, office or Affiliate
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, the L/C Issuers 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,
each L/C Issuer and their respective Affiliates under this Section 10.08 are in addition to other rights and remedies
(including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have. Each Lender and each
L/C Issuer agrees to notify the Company 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.
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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 (including, without limitation, the Criminal Code
(Canada)) (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 Company. 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 Integration; Effectiveness.
This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent
or any L/C Issuer, 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, and thereafter shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
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 (other than contingent indemnification obligations for which no claim or demand has been made) 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
applicable 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.
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10.13 Replacement of Lenders.
If the Company is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any Lender is a Defaulting
Lender or a Non-Consenting Lender, then the Company 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 (other than its existing rights to payments pursuant
to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
(a) the
Company shall have paid (or caused a Designated Borrower to pay) to the Administrative Agent the assignment fee (if any) specified in
Section 10.06(b);
(b) 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
and, if applicable, under Section 2.05(d)) from the assignee (to the extent of such outstanding principal and accrued interest
and fees) or the Company or applicable Designated Borrower (in the case of all other amounts, including any amounts payable under Section 2.05(d));
(c) 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;
(d) such
assignment does not conflict with applicable Laws; and
(e) in
the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the
applicable amendment, waiver or consent; 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 and Swing Line Loans pursuant to this Section 10.13
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 Company 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 (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) 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 IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS, BUT OTHERWISE WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES).
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(b) SUBMISSION
TO JURISDICTION. THE COMPANY 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, ANY 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 ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST
THE COMPANY OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER
OF VENUE. THE COMPANY AND EACH OTHER LOAN PARTY 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.
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10.15 Service of Process
on the Designated Borrowers. Each Designated Borrower hereby irrevocably designates, appoints and empowers the Company, and successors
as the designee, appointee and agent of such Designated Borrower to receive, accept and acknowledge, for and on behalf of such Designated
Borrower and its properties, service of any and all legal process, summons, notices and documents which may be served in such action,
suit or proceeding relating to this Agreement or the Loan Documents in the case of the courts of the Southern District of New York or
of the courts of the State of New York sitting in the city of New York, which service may be made on any such designee, appointee and
agent in accordance with legal procedures prescribed for such courts. Each Designated Borrower agrees to take any and all action necessary
to continue such designation in full force and effect and should such designee, appointee and agent become unavailable for this purpose
for any reason, such Designated Borrower will forthwith irrevocably designate a new designee, appointee and agent, which shall irrevocably
agree to act as such, with the powers and for purposes specified in this Section 10.15. Each Designated Borrower further irrevocably
consents and agrees to service of any and all legal process, summons, notices and documents out of any of the aforesaid courts in any
such action, suit or proceeding relating to this Agreement or the other Loan Documents delivered to such Designated Borrower in accordance
with this Section 10.15 or to its then designee, appointee or agent for service. If service is made upon such designee, appointee
and agent, a copy of such process, summons, notice or document shall also be provided to the applicable Designated Borrower at the address
specified in Section 10.02 by registered or certified mail, or overnight express air courier; provided that failure of such
holder to provide such copy to such Designated Borrower shall not impair or affect in any way the validity of such service or any judgment
rendered in such action or proceedings. Each Designated Borrower agrees that service upon such Designated Borrower or any such designee,
appointee and agent as provided for herein shall constitute valid and effective personal service upon such Designated Borrower with respect
to matters contemplated in this Section 10.15 and that the failure of any such designee, appointee and agent to give any notice
of such service to such Designated Borrower shall not impair or affect in any way the validity of such service or any judgment rendered
in any action or proceeding based thereon. Nothing herein shall, or shall be construed so as to, limit the right of the Administrative
Agent or the Lenders to bring actions, suits or proceedings with respect to the obligations and liabilities of each Designated Borrower
under, or any other matter arising out of or in connection with, this Agreement, or for recognition or enforcement of any judgment rendered
in any such action, suit or proceeding, in the courts of whatever jurisdiction in which the respective offices of the Administrative Agent
or the Lenders may be located or assets of such Designated Borrower may be found or as otherwise shall to the Administrative Agent or
the Lenders seem appropriate, or to affect the right to service of process in any jurisdiction in any other manner permitted by law.
10.16 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.
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10.17 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 Company 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, the Arrangers, the Sustainability Coordinators and the Lenders are arm’s-length commercial transactions
between the Company, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent, the Arrangers,
the Sustainability Coordinators and the Lenders, on the other hand, (B) each of the Company 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 Company 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, the Arrangers, the Sustainability Coordinators and the Lenders
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 Company, any other Loan Party or any of their respective Affiliates,
or any other Person and (B) neither the Administrative Agent, any of the Arrangers, any of the Sustainability Coordinators nor any
Lender has any obligation to the Company, 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, the Arrangers, the Sustainability Coordinators, the Lenders and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company, the other Loan Parties and their respective Affiliates, and
neither the Administrative Agent, any of the Arrangers, any of the Sustainability Coordinators nor any Lender has any obligation to disclose
any of such interests to the Company, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law,
each of the Company and each other Loan Party hereby waives and releases any claims that it may have against the Administrative Agent,
the Arrangers, the Sustainability Coordinators or any Lender with respect to any breach or alleged breach of agency or fiduciary duty
in connection with any aspect of any transaction contemplated hereby.
10.18 Electronic Execution; Electronic Records; Counterparts.
(a) This
Agreement, any Loan Document and any other Communication, including Communications required to be in writing, may be in the form
of an Electronic Record and may be executed using Electronic Signatures. Each Loan Party, the Administrative Agent and each Credit
Party agrees that any Electronic Signature on or associated with any Communication shall be valid and binding on such Person to the
same extent as a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the
legal, valid and binding obligation of such Person enforceable against such Person in accordance with the terms thereof to the same
extent as if a manually executed original signature was delivered. Any Communication may be executed in as many counterparts as
necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same
Communication. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance
of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an
electronically signed Communication converted into another format, for transmission, delivery and/or retention. The Administrative
Agent and each Credit Party may, at its option, create one or more copies of any Communication in the form of an imaged Electronic
Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such Person’s business,
and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall
be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record.
Notwithstanding anything contained herein to the contrary, neither the Administrative Agent, nor any L/C Issuer, nor the Swing Line
Lender is under any obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by such
Person pursuant to procedures approved by it; provided that, without limiting the foregoing, (i) to the extent the
Administrative Agent, any L/C Issuer and/or the Swing Line Lender has agreed to accept such Electronic Signature, the Administrative
Agent and each of the Credit Parties shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of
any Loan Party and/or any Credit Party without further verification and regardless of the appearance or form of such Electronic
Signature, and (ii) upon the request of the Administrative Agent or any Credit Party, any Communication executed using an
Electronic Signature shall be promptly followed by a manually executed counterpart.
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(b) Neither
the Administrative Agent, nor any L/C Issuer, nor the Swing Line Lender shall be responsible for or have any duty to ascertain or
inquire into the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document (including, for the avoidance of doubt, in connection with the Administrative Agent’s, such L/C
Issuer’s or the Swing Line Lender’s reliance on any Electronic Signature transmitted by telecopy, emailed .pdf or any
other electronic means). The Administrative Agent, each L/C Issuer and the Swing Line Lender shall be entitled to rely on, and shall
incur no liability under or in respect of this Agreement or any other Loan Document by acting upon, any Communication or any
statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated (whether
or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof), except to the extent
that such liabilities are determined by a court of competent jurisdiction in a final and non-appealable judgment to have resulted
from the gross negligence or willful misconduct of the Administrative Agent, such L/C Issuer or the Swing Line Lender, or, in each
case, any of its Related Specified Parties, or, such Related Specified Party, as applicable.
(c) Each
Loan Party, the Administrative Agent and each Credit Party hereby waives (i) any argument, defense or right to contest the legal
effect, validity or enforceability of this Agreement or any other Loan Document based solely on the lack of paper original copies of this
Agreement and/or such other Loan Document, and (ii) any claim against the Administrative Agent, each Credit Party and each Related
Party thereof for any liabilities arising solely from the Administrative Agent’s and/or any Credit Party’s reliance on or
use of Electronic Signatures, including any liabilities arising as a result of the failure of the Loan Parties to use any available security
measures in connection with the execution, delivery or transmission of any Electronic Signature, except to the extent that such liabilities
are determined by a court of competent jurisdiction in a final and non-appealable judgment to have resulted from the gross negligence
or willful misconduct of the Administrative Agent, such Credit Party, or, in each case, any of its Related Specified Parties, or, such
Related Specified Party, as applicable.
(d) Each
of the parties hereto represents and warrants to the other parties that it has the corporate or other applicable capacity and authority
to execute this Agreement and any other Communication through electronic means and there are no restrictions on doing so in that party’s
constitutive documents.
10.19 USA PATRIOT Act
and Canadian AML Acts. Each Lender that is subject to the PATRIOT Act (as hereinafter defined) or any Canadian AML Act and the
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the other Loan Parties that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT
Act”) and the Canadian AML Acts, it is required to obtain, verify and record information that identifies each Loan Party,
which information includes the name and address of each Loan Party, information concerning its direct and indirect holders of Equity
Interests and other Persons exercising Control over it, and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify such Loan Party in accordance with the PATRIOT Act and the Canadian AML Acts. Each Loan Party
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 PATRIOT Act and the Canadian AML Acts.
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10.20 Judgment Currency.
If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in
one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment
is given. The obligation of each Loan Party in respect of any such sum due from it to the Administrative Agent or any Lender hereunder
or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other
than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”),
be discharged only to the extent that on the Business Day following receipt by the Administrative Agent or such Lender, as the case may
be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in accordance
with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so
purchased is less than the sum originally due to the Administrative Agent or any Lender from any Loan Party in the Agreement Currency,
such Loan Party agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such
Lender, as the case may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally
due to the Administrative Agent or any Lender in such currency, the Administrative Agent or such Lender, as the case may be, agrees to
return the amount of any excess to such Loan Party (or to any other Person who may be entitled thereto under applicable law).
10.21 Acknowledgement and
Consent to Bail-In of Affected Financial Institutions. Solely to the extent any Person is an Affected Financial Institution and 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 Person that is an Affected Financial Institution arising
under any Loan Document may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents
to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any Person that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial
Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such
shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this
Agreement or any other Loan Document; or
(iii) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution
Authority.
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10.22 Appointment of Company
as Agent. Each Loan Party hereby appoints the Company to act as its agent for all purposes of this Agreement, the other Loan Documents
and all other documents and electronic platforms entered into in connection herewith and agrees that (a) the Company may execute
such documents and provide such authorizations on behalf of such Loan Party as the Company deems appropriate in its sole discretion and
each Loan Party shall be obligated by all of the terms of any such document and/or authorization executed on its behalf, (b) any
notice or communication delivered by the Administrative Agent, an L/C Issuer or a Lender to the Company shall be deemed delivered to each
Loan Party and (c) the Administrative Agent, the L/C Issuers or the Lenders may accept, and be permitted to rely on, any document,
authorization, instrument or agreement executed by the Company on behalf of each of the Loan Parties. Each Loan Party hereby releases
the Company, to the extent legally possible, from any restrictions related to conflict of interest, representing multiple parties (“multirepresentación”)
and self-dealing (“autocontratación”).
10.23 Acknowledgement Regarding
Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract
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 Regime”) 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.
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(b) As
used in this Section 10.23, 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.
“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).
10.24 Parallel Debt (Covenant to Pay the Administrative
Agent).
(a) Each
Loan Party, by way of an independent payment obligation (such payment obligation of such Loan Party to the Administrative Agent, its “Parallel
Debt”), hereby irrevocably and unconditionally undertakes to pay to the Administrative Agent, as creditor in its own right and
not as agent or representative of any other Secured Party or any other Person, an amount equal to and in the currency of each amount payable
by such Loan Party to the Secured Parties under this Agreement and each of the other Loan Documents (such Loan Party’s “Corresponding
Debt”) as and when each such amount becomes due and payable under such Loan Document (or would have fallen due but for any discharge
resulting from the failure of any Secured Party to take appropriate steps in any proceeding under any Debtor Relief Law affecting such
Loan Party to preserve its right or entitlement to be paid such amount).
(b) Each
of the Administrative Agent and each Loan Party acknowledges that (i) the obligations of each Loan Party under the foregoing clause
(a) are several and are separate and independent from, and shall not in any way limit or affect, the Corresponding Debt of such
Loan Party and (ii) the amounts for which each Loan Party is liable to the Administrative Agent under its Parallel Debt shall not
be limited or affected in any way by its Corresponding Debt (except as provided in clause (e) of this Section); provided
that (x) the Administrative Agent shall not demand payment with regard to the Parallel Debt of any Loan Party to the extent that
such Loan Party’s Corresponding Debt has been irrevocably paid or discharged and (y) neither the Administrative Agent nor any
Secured Party shall demand payment with regard to the Corresponding Debt of any Loan Party to the extent that such Loan Party’s
Parallel Debt has been irrevocably paid or discharged.
(c) Any
Lien granted by any Loan Party to the Administrative Agent under any Collateral Document or any other Loan Document to secure its Parallel
Debt is granted to the Administrative Agent in its capacity as creditor of the Parallel Debt of such Loan Party and shall not be held
in trust for any other Secured Party or any other Person.
(d) The
Administrative Agent acts in its own name and on its own behalf and not as agent, representative or trustee of any of the other
Secured Parties with respect to the amounts payable by each Loan Party under this Section. Accordingly, the Administrative Agent
shall have its own independent right to demand payment of all amounts payable by each Loan Party under this Section and to seek
enforcement of any Collateral securing such amounts, irrespective of any discharge of such Loan Party’s obligation to pay the
Corresponding Debt to the other Secured Parties resulting from any failure of such Secured Parties to take appropriate steps in any
proceeding under any Debtor Relief Law affecting such Loan Party to preserve their right or entitlement to be paid such amounts.
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(e) Notwithstanding
anything to the contrary in this Agreement, (i) the amount of Parallel Debt of each Loan Party shall be decreased to the extent that
the Corresponding Debt of such Loan Party has been irrevocably paid or discharged and (ii) the amount of Corresponding Debt of each
Loan Party shall be decreased to the extent that the Parallel Debt of such Loan Party has been irrevocably paid or discharged.
(f) The
rights of the Secured Parties (other than the Administrative Agent) to receive payment of amounts payable by each Loan Party under the
Corresponding Debt are several and are separate and independent from, and without prejudice to, the rights of the Administrative Agent
to receive payment under the Parallel Debt.
(g) All
amounts received or recovered by the Administrative Agent pursuant to this Section, and all amounts received or recovered by the Administrative
Agent from or by the enforcement of any security granted to secure the Parallel Debt, shall be applied in accordance with Section 8.03.
(h) Without
limiting or affecting the Administrative Agent’s rights or obligations with respect to the Loan Parties (whether under this Section or
under any other provision of this Agreement or any other Loan Document), each Loan Party acknowledges that (i) nothing in this Section shall
impose any obligation on the Administrative Agent to advance any sum to any Loan Party or otherwise under this Agreement or any other
Loan Document, except in its capacity as a Lender, an L/C Issuer and/or the Swing Line Lender, as applicable and (ii) for the purpose
of any vote taken under this Agreement or any other Loan Document, the Administrative Agent shall not be regarded as having any participation
or commitment other than those which it has in its capacity as a Lender, an L/C Issuer and/or the Swing Line Lender, as applicable.
(i) For
the avoidance of doubt, this Section shall not operate and may not be construed as operating to disapply, suspend or circumvent any
guarantee and/or indemnity limitations in relation to any claim of a Secured Party set out in this Agreement or any other Loan Document.
10.25 Amendment and Restatement of Existing Credit Agreement.
(a) Amendment
and Restatement. The parties hereto agree that, on the Closing Date, the following transactions shall be deemed to occur
automatically, without further action by any party hereto: (i) the Existing Credit Agreement shall be deemed to be amended and
restated in its entirety pursuant to this Agreement, and the provisions of the Existing Credit Agreement shall be superseded by the
provisions hereof; (ii) all obligations under the Existing Credit Agreement outstanding on the Closing Date shall in all
respects be continuing and shall be deemed to be Obligations outstanding hereunder; (iii) the guarantees made to the lenders,
the letter of credit issuers, the administrative agent and each other holder of the obligations under the Existing Credit Agreement,
shall remain in full force and effect with respect to the Obligations and are hereby reaffirmed; and (iv) the security
interests and liens in favor of Bank of America, as administrative agent for the benefit of the holders of the obligations under the
Existing Credit Agreement, created under the collateral documents entered into in connection with the Existing Credit Agreement
shall remain in full force and effect with respect to the Obligations and are hereby reaffirmed; provided, that, such
collateral documents shall, to the extent amended and restated or otherwise replaced on the Closing Date, be evidenced by such
amended and restated or replacement collateral documents from and after the Closing Date. On the Closing Date, the revolving credit
extensions and revolving commitments made by the lenders under the Existing Credit Agreement shall be reallocated and restated among
the Lenders so that, as of the Closing Date, the Revolving Commitments of the Lenders shall be as set forth on Schedule
2.01.
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(b) Exiting
Lenders. The Commitments of the Exiting Lenders under the Existing Credit Agreement are hereby terminated simultaneously with the
effectiveness of this Agreement. Concurrently with the effectiveness of this Agreement, each Exiting Lender shall receive payment in full
for all outstanding Loans owing to it under the Existing Credit Agreement. After giving effect to this Agreement, the Exiting Lenders
shall no longer have any Commitments or outstanding Loans.
(c) New
Lenders. By execution of this Agreement, each New Lender hereby acknowledges, agrees and confirms that, by its execution of this Agreement,
such New Lender will be deemed to be a party to this Agreement and a “Lender” for all purposes of this Agreement, and shall
have all of the obligations of a Lender hereunder as if it had executed the Existing Credit Agreement. Each New Lender hereby ratifies,
as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions applicable to the Lenders contained in this
Agreement.
(d) No
Novation. This Agreement constitutes an amendment to the Existing Credit Agreement made under and in accordance with the terms of
Section 10.01 of the Existing Credit Agreement. Each of the parties hereto confirms that the amendment and restatement of the Existing
Credit Agreement pursuant to this Agreement shall not constitute a novation of the Existing Credit Agreement.
10.26 [Reserved]. Resignation
of Sustainability Coordinators. Any Sustainability Coordinator may at any time give notice of its resignation to the
Administrative Agent, the Lenders, the L/C Issuers and the Company, which resignation shall be effective on the date set forth in
such notice, which date shall not be less than ten (10) Business Days following the date of receipt of such notice by the
Company and the Administrative Agent (the “Sustainability Coordinator Resignation Effective Date”). Upon receipt
of any such notice of resignation, the Company shall have the right to appoint a successor reasonably acceptable to BofA Securities,
which shall be a Lender or an Affiliate of a Lender; provided that in no event shall any such successor Sustainability
Coordinator be a Defaulting Lender. With effect from the Sustainability Coordinator Resignation Effective Date, the retiring
Sustainability Coordinator shall be discharged from any duties and obligations hereunder and under the other Loan Documents. Upon
the acceptance of a successor’s appointment as Sustainability Coordinator hereunder, such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring Sustainability Coordinator (other than any
rights to indemnity payments owed to the retiring Sustainability Coordinator), and the retiring Sustainability Coordinator shall be
discharged from any duties and obligations hereunder or under the other Loan Documents. After the retiring Sustainability
Coordinator’s resignation hereunder and under the other Loan Documents, the provisions of Article IX and this Article X
and all protective provisions of the other Loan Documents, in each case, that are applicable to the Sustainability Coordinators,
shall continue in effect for the benefit of such retiring Sustainability Coordinator, 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 Sustainability Coordinator was
acting as Sustainability Coordinator.
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ARTICLE XI.
GUARANTY
11.01 Guaranty.
(a) Each
U.S. Guarantor that is not a Specified U.S. Obligor and each Non-U.S. Guarantor that is not a Specified Non-U.S. Obligor hereby jointly
and severally guarantees to each Secured Party and each other holder of Obligations as hereinafter provided, as primary obligor and not
as surety, the prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration,
as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof. Each U.S. Guarantor that is not a Specified
U.S. Obligor and each Non-U.S. Guarantor that is not a Specified Non-U.S. Obligor hereby further agrees that if any of the Obligations
are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization
or otherwise), such Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in
the case of any extension of time of payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether
at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with
the terms of such extension or renewal.
(b) Each
Non-U.S. Guarantor hereby jointly and severally guarantees to each Secured Party and each other holder of Non-U.S. Obligations as hereinafter
provided, as primary obligor and not as surety, the prompt payment of the Non-U.S. Obligations in full when due (whether at stated maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms
thereof. Each Non-U.S. Guarantor hereby further agrees that if any of the Non-U.S. Obligations are not paid in full when due (whether
at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), such Guarantors will,
jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Non-U.S. Obligations, the same will be promptly paid in full when due (whether at extended maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension
or renewal. For the avoidance of doubt, the liabilities established pursuant to this clause (b) are without duplication of
the liabilities established pursuant to the foregoing clause (a).
(c) Notwithstanding
any provision to the contrary contained herein or in any other of the Loan Documents or the other documents relating to the Obligations,
the obligations of each Guarantor (in its capacity as such) under this Agreement and the other Loan Documents shall not exceed an aggregate
amount equal to the largest amount that would not render such obligations subject to avoidance under applicable Debtor Relief Laws.
(d) In
particular and for the purposes of Articles 399 and 652.1 of the Spanish Insolvency Law, the obligations of each Spanish Guarantor
under this Article XI shall be governed by the terms of this Agreement and the other Loan Documents and will not be
affected, reduced or terminated by or as a consequence of the approval of a composition agreement (“convenio”)
within the insolvency proceedings concerning each Spanish Guarantor or the court sanctioning of a restructuring plan
(“homologación de plan de reestructuración”). As a consequence of the above, each Spanish
Guarantor’s obligations will remain unchanged, regardless of how the Administrative Agent or, to the extent applicable, the
Lenders, have voted with respect to such composition agreement or restructuring plan.
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(e) Notwithstanding
any provision to the contrary contained herein, the obligations and liabilities of any Spanish Guarantor under this Article XI
or any other provision of this Agreement shall be deemed not to be assumed by such Spanish Guarantor to the extent that they
constitute or may constitute unlawful financial assistance within the meaning of Article 150 of the Spanish Companies Law
(where the company is a Spanish public company (“Sociedad Anónima”)) or Article 143 of the Spanish
Companies Law (where the company is a Spanish limited liability company (“Sociedad de Responsabilidad Limitada”))
or any equivalent provision of any other applicable Law. Accordingly, the obligations and liabilities of any Spanish Guarantor under
this Article XI or any other provision of this Agreement or any other Loan Document shall not include and shall not be
extended to any obligations in respect of financing used in or towards payment of or refinance of the purchase price or subscription
for (and any related costs of) the shares or quotas in any Spanish Guarantor and/or the acquisition of or subscription for (and any
related costs of) the shares or quotas in its controlling corporation directly or indirectly (or, where the company is a Spanish
limited liability company (“Sociedad de Responsabilidad Limitada”), of any company of its group). The guarantee,
indemnity and other obligations of any Spanish Guarantor incorporated as a Spanish limited liability company (“Sociedad de
Responsabilidad Limitada”) expressed to be assumed by it under the guarantee of any Spanish Guarantor shall not include
and shall not extend to any obligations which could reasonably be expected to result in a breach of Article 401 of the Spanish
Companies Law.
11.02 Obligations Unconditional.
(a) The
obligations of the U.S. Guarantors that are not Specified U.S. Obligors and the Non-U.S. Guarantors that are not Specified Non-U.S. Obligors
under Section 11.01(a) are joint and several, absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Loan Documents or other documents relating to the Obligations, or any substitution, release,
impairment or exchange of any other guarantee of or security for any of the Obligations, and, to the fullest extent permitted by applicable
Law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor (other than payment in full of the Obligations (other than contingent indemnification obligations for which no claim
or demand has been made)), it being the intent of this Section 11.02 that the obligations of the U.S. Guarantors that are
not Specified U.S. Obligors and the Non-U.S. Guarantors that are not Specified Non-U.S. Obligors hereunder shall be absolute and unconditional
under any and all circumstances. Each U.S. Guarantor that is not a Specified U.S. Obligor and each Non-U.S. Guarantor that is not a Specified
Non-U.S. Obligor agrees that such Guarantor’s right of subrogation, indemnity, reimbursement or contribution against any Borrower
or any other Loan Party for amounts paid under this Article XI shall be unconditionally postponed until such time as the Obligations
have been paid in full (other than contingent indemnification obligations for which no claim or demand has been made) and the Commitments
have expired or terminated.
(b) The
obligations of the Non-U.S. Guarantors under Section 11.01(b) are joint and several, absolute and unconditional, irrespective
of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents or other documents relating to the Non-U.S.
Obligations, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Non-U.S. Obligations,
and, to the fullest extent permitted by applicable Law, irrespective of any other circumstance whatsoever which might otherwise constitute
a legal or equitable discharge or defense of a surety or guarantor (other than payment in full of the Obligations (other than contingent
indemnification obligations for which no claim or demand has been made)), it being the intent of this Section 11.02 that
the obligations of the Non-U.S. Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Each Non-U.S.
Guarantor agrees that such Guarantor’s right of subrogation, indemnity, reimbursement or contribution against any Borrower or any
other Loan Party for amounts paid under this Article XI shall be unconditionally postponed until such time as the Non-U.S.
Obligations have been paid in full (other than contingent indemnification obligations for which no claim or demand has been made) and
the Commitments have expired or terminated.
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(c) Without
limiting the generality of the foregoing subsections (a) and (b), it is agreed that, to the fullest extent permitted
by Law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall
remain absolute and unconditional as described above:
(i) at
any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Obligations
shall be extended, or such performance or compliance shall be waived;
(ii) any
of the acts mentioned in any of the provisions of any of the Loan Documents or other documents relating to the Obligations or any other
agreement or instrument referred to therein shall be done or omitted;
(iii) the
maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect,
or any right under any of the Loan Documents or other documents relating to the Obligations or any other agreement or instrument referred
to therein shall be waived or any other guarantee of any of the Obligations or any security therefor shall be released, impaired or exchanged
in whole or in part or otherwise dealt with;
(iv) any
Lien granted to, or in favor of, the Administrative Agent or any other holder of the Obligations as security for any of the Obligations
shall fail to attach or be perfected; or
(v) any
of the Obligations shall be determined to be void or voidable (including for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including any creditor of any Guarantor).
(d) With
respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Administrative Agent or any other holder of the Obligations exhaust any right, power
or remedy or proceed against any Person under any of the Loan Documents or any other document relating to the Obligations or any other
agreement or instrument referred to therein, or against any other Person under any other guarantee of, or security for, any of the Obligations.
11.03 Reinstatement. Neither
the Guarantors’ obligations hereunder nor any remedy for the enforcement thereof shall be impaired, modified or released in
any manner whatsoever by an impairment, modification, change, release or limitation of the liability of the Borrowers, by reason of
any Borrower’s bankruptcy or insolvency or by reason of the invalidity or unenforceability of all or any portion of the
Obligations. In addition:
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(a) The
obligations of each U.S. Guarantor that is not a Specified U.S. Obligor and each Non-U.S. Guarantor that is not a Specified Non-U.S. Obligor
under this Article XI shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf
of any Person in respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether
as a result of any Debtor Relief Law or otherwise, and each such Guarantor agrees that it will indemnify the Administrative Agent and
each other holder of the Obligations on demand for all reasonable costs and expenses (including the fees, charges and disbursements of
counsel) incurred by the Administrative Agent or such holder of the Obligations in connection with such rescission or restoration, including
any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer
or similar payment under any Debtor Relief Law.
(b) The
obligations of each Non-U.S. Guarantor under this Article XI shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of any Person in respect of the Non-U.S. Obligations is rescinded or must be otherwise restored
by any holder of any of the Non-U.S. Obligations, whether as a result of any Debtor Relief Law or otherwise, and each such Guarantor agrees
that it will indemnify the Administrative Agent and each other holder of the Non-U.S. Obligations on demand for all reasonable costs and
expenses (including the fees, charges and disbursements of counsel) incurred by the Administrative Agent or such holder of the Non-U.S.
Obligations in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any
claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any Debtor Relief Law.
11.04 Certain Additional
Waivers. Each Guarantor acknowledges and agrees that (a) the guaranty given hereby may be enforced without the necessity of resorting
to or otherwise exhausting remedies in respect of any other security or collateral interests, and without the necessity at any time of
having to take recourse against the Borrowers hereunder or against any collateral securing the Obligations or otherwise, and (b) it
will not assert any right to require the action first be taken against the Borrowers or any other Person (including any co-guarantor)
or pursuit of any other remedy or enforcement any other right, and (c) nothing contained herein shall prevent or limit action being
taken against the Borrowers hereunder, under the other Loan Documents or the other documents and agreements relating to the Obligations
or from foreclosing on any security or collateral interests relating hereto or thereto, or from exercising any other rights or remedies
available in respect thereof, if neither the Borrowers nor the Guarantors shall timely perform their obligations, and the exercise of
any such rights and completion of any such foreclosure proceedings shall not constitute a discharge of the Guarantors’ obligations
hereunder unless as a result thereof, the Obligations shall have been paid in full (other than contingent indemnification obligations
for which no claim or demand has been made) and the commitments relating thereto shall have expired or terminated, it being the purpose
and intent that the Guarantors’ obligations hereunder be absolute, irrevocable, independent and unconditional under all circumstances.
Each Guarantor further agrees that such Guarantor shall have no right of recourse to security for the Obligations, except through the
exercise of rights of subrogation pursuant to Section 11.02 and through the exercise of rights of contribution pursuant to
Section 11.06.
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11.05 Remedies.
(a) The
U.S. Guarantors that are not Specified U.S. Obligors and the Non-U.S. Guarantors that are not Specified Non-U.S. Obligors agree that,
to the fullest extent permitted by Law, as between such Guarantors, on the one hand, and the Administrative Agent and the other holders
of the Obligations, on the other hand, the Obligations may be declared to be forthwith due and payable as specified in Section 8.02
(and shall be deemed to have become automatically due and payable in the circumstances specified in Section 8.02) for purposes
of Section 11.01(a) notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing
the Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or
the Obligations being deemed to have become automatically due and payable), the Obligations (whether or not due and payable by any other
Person) shall forthwith become due and payable by the U.S. Guarantors that are not Specified U.S. Obligors and the Non-U.S. Guarantors
that are not Specified Non-U.S. Obligors for purposes of Section 11.01(a). The U.S. Guarantors that are not Specified U.S.
Obligors and the Non-U.S. Guarantors that are not Specified Non-U.S. Obligors acknowledge and agree that their obligations hereunder are
secured in accordance with the terms of the Collateral Documents to which they are parties and that the holders of the Obligations may
exercise their remedies thereunder in accordance with the terms thereof.
(b) The
Non-U.S. Guarantors agree that, to the fullest extent permitted by Law, as between such Guarantors, on the one hand, and the Administrative
Agent and the other holders of the Non-U.S. Obligations, on the other hand, the Non-U.S. Obligations may be declared to be forthwith due
and payable as specified in Section 8.02 (and shall be deemed to have become automatically due and payable in the circumstances
specified in Section 8.02) for purposes of Section 11.01(b) notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Non-U.S. Obligations from becoming automatically due and payable) as against
any other Person and that, in the event of such declaration (or the Non-U.S. Obligations being deemed to have become automatically due
and payable), the Non-U.S. Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by
the Non-U.S. Guarantors for purposes of Section 11.01(b). The Non-U.S. Guarantors acknowledge and agree that their obligations
hereunder are secured in accordance with the terms of the Collateral Documents to which they are parties and that the holders of the Non-U.S.
Obligations may exercise their remedies thereunder in accordance with the terms thereof.
11.06 Rights of Contribution.
(a) The
U.S. Guarantors that are not Specified U.S. Obligors and the Non-U.S. Guarantors that are not Specified Non-U.S. Obligors hereby
agree as among themselves that, in connection with payments made hereunder, each U.S. Guarantor that is not a Specified U.S. Obligor
and each Non-U.S. Guarantor that is not a Specified Non-U.S. Obligor shall have a right of contribution from each other U.S.
Guarantor that is not a Specified U.S. Obligor and each other Non-U.S. Guarantor that is not a Specified Non-U.S. Obligor in
accordance with applicable Law. Such contribution rights shall be subordinate and subject in right of payment to the Obligations
until such time as the Obligations have been irrevocably paid in full (other than contingent indemnification obligations for which
no claim or demand has been made) and the commitments relating thereto shall have expired or been terminated, and none of the U.S.
Guarantors that are not Specified U.S. Obligors and none of the Non-U.S. Guarantors that are not Specified Non-U.S. Obligors shall
exercise any such contribution rights until the Obligations have been irrevocably paid in full (other than contingent
indemnification obligations for which no claim or demand has been made) and the commitments relating thereto shall have expired or
been terminated.
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(b) The
Non-U.S. Guarantors hereby agree as among themselves that, in connection with payments made hereunder, each Non-U.S. Guarantor shall have
a right of contribution from each other Non-U.S. Guarantor in accordance with applicable Law. Such contribution rights shall be subordinate
and subject in right of payment to the Non-U.S. Obligations until such time as the Non-U.S. Obligations have been irrevocably paid in
full (other than contingent indemnification obligations for which no claim or demand has been made) and the commitments relating thereto
shall have expired or been terminated, and none of the Non-U.S. Guarantors shall exercise any such contribution rights until the Non-U.S.
Obligations have been irrevocably paid in full (other than contingent indemnification obligations for which no claim or demand has been
made) and the commitments relating thereto shall have expired or been terminated.
11.07 Guarantee of Payment; Continuing Guarantee.
(a) The
guarantee given by the U.S. Guarantors that are not Specified U.S. Obligors and the Non-U.S. Guarantors that are not Specified Non-U.S.
Obligors in this Article XI is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to
all Obligations whenever arising.
(b) The
guarantee given by the Non-U.S. Guarantors in this Article XI is a guaranty of payment and not of collection, is a continuing
guarantee, and shall apply to all Non-U.S. Obligations whenever arising.
11.08 Keepwell.
(a) Each
U.S. Obligor that is not a Specified Non-U.S. Obligor and each Non-U.S. Obligor that is not a Specified Non-U.S. Obligor, in each case,
that is a Qualified ECP Guarantor at the time the Guaranty in this Article XI by any Loan Party that is not then an “eligible
contract participant” under the Commodity Exchange Act (a “Specified Loan Party”) or the grant of a security
interest under the Loan Documents by any such Specified Loan Party, in either case, becomes effective with respect to any Swap Obligation,
hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified
Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations
under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can
be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Article XI
voidable under applicable Debtor Relief Laws, and not for any greater amount).
(b) Each
Non-U.S. Obligor that is a Qualified ECP Guarantor at the time the Guaranty in this Article XI by any Non-U.S. Obligor
that is not then an “eligible contract participant” under the Commodity Exchange Act (a “Specified Non-U.S.
Loan Party”) or the grant of a security interest under the Loan Documents by any such Specified Non-U.S. Loan Party, in
either case, becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and
irrevocably undertakes to provide such funds or other support to each Specified Non-U.S. Loan Party with respect to such Swap
Obligation as may be needed by such Specified Non-U.S. Loan Party from time to time to honor all of its obligations under the Loan
Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby
incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Article XI
voidable under applicable Debtor Relief Laws, and not for any greater amount).
211
(c) The
obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Obligations
have been indefeasibly paid and performed in full. Each Loan Party intends this Section to constitute, and this Section shall
be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each Specified Loan Party for all purposes
of the Commodity Exchange Act.
11.09 Limitation on Korean
Guarantors. In respect of the Obligations of any Non-U.S. Guarantor incorporated under the laws of Korea (a “Korean Guarantor”),
(a) Notwithstanding
anything to the contrary contained in this Agreement or in any other Loan Documents, any Korean Guarantor’s Obligations shall not
include any obligation or liability which, if incurred, would constitute a breach of the fiduciary duties owed by the directors and officers
of such Korean Guarantor toward it, thereby causing loss to the Korean Guarantor within the meaning of Article 355 or Article 356
of the Korean Criminal Code and/or Article 622 of the Korean Commercial Code or any other law or regulation having the same effect,
as interpreted by Korean courts.
(b) Except
as provided in clause (a) above, the obligations and liabilities of each Korean Guarantor hereunder for the obligations of
any other Loan Party which is a Subsidiary of such Korean Guarantor shall not be limited and shall therefore cover all amounts due by
such Loan Party as a Borrower or as a Guarantor.
(c) The
parties hereto hereby acknowledge and agree that no Korean Guarantor is acting jointly and severally with any other Guarantor as to its
obligations pursuant to the guarantee given under this Agreement.
(d) Each
Korean Guarantor irrevocably and unconditionally undertakes to pay to the Administrative Agent (on behalf of the Lenders) an amount equal
to the aggregate amount of its Obligations, excluding its Parallel Debt (as these may exist from time to time).
11.10 Limitation on Irish
Guarantors. In respect of the Obligations of any Irish Loan Party which is a Non-U.S. Guarantor (an “Irish Guarantor”),
none of such Irish Guarantor’s obligations and liabilities under this Article XI (and under any other guarantee or indemnity
provision in a Collateral Document) will extend to include any obligation or liability to the extent doing so would be:
(a) unlawful
financial assistance (within the meaning of Section 82 of the Irish Companies Act); or
(b) a
breach of Section 239 of the Irish Companies Act, and no security granted by such Irish Guarantor will secure any such
obligation or liability.
11.11 Limitation on
English Guarantors. In respect of the Obligations of any Non-U.S. Guarantor incorporated under the laws of England &
Wales (an “English Guarantor”), none of such English Guarantor’s obligations and liabilities under this Article XI
(and under any other guarantee or indemnity provision in a Collateral Document) will apply to any obligation or liability to the
extent that it would result in such guarantee constituting unlawful financial assistance within the meaning of Sections 678 or 679
of the Companies Act 2006.
[SIGNATURE PAGES OMITTED]
212
ANNEX B
Amended Schedules to the Credit Agreement
[See attached.]
Annex B to Second Amendment
CERTAIN SCHEDULES TO THIS ANNEX B (INDENTIFIED BY “[**REDACTED**]”),
HAVE BEEN EXCLUDED BECAUSE THEY ARE BOTH NOT MATERIAL AND ARE OF THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.
Schedule 2.01
Commitments and Applicable Percentages
Term A Loan Commitments and Applicable Percentages:
[**REDACTED**]
[Confidential / Commercially Sensitive]
Term B Loan Commitments and Applicable Percentages:
On
file with the Administrative Agent.
Revolving Commitments and Applicable Percentages:
[**REDACTED**]
[Confidential / Commercially Sensitive]
Schedule 5.13
Subsidiaries
[**REDACTED**]
[Commercially Sensitive]
Schedule 5.17
Identification Numbers for Canadian Borrowers
and Designated Borrowers that are Non-U.S.
Subsidiaries
Name
of Borrower
Organizational
Number
Jurisdiction
Celestica Inc.
1201522
Ontario, CA
Celestica International LP
271121725
Ontario, CA
Celestica (USA) Inc.
3714851
Delaware, US
Schedule 5.21
Labor Matters
[**REDACTED**]
[Commercially Sensitive]
Schedule 7.01
Existing Liens
[**REDACTED**]
[Confidential / Commercially Sensitive]
Schedule 7.02
Permitted Investments
[**REDACTED**]
[Confidential / Commercially Sensitive]
Schedule 7.03
Existing Indebtedness
[**REDACTED**]
[Confidential / Commercially Sensitive]
Schedule 7.04
Permitted Dissolutions
[**REDACTED**]
[Commercially Sensitive]
Schedule 7.05
Permitted Dispositions
[**REDACTED**]
[Commercially Sensitive]
Schedule 7.08
Existing Transactions with Affiliates
None.
Schedule 7.09
Existing Burdensome Agreements
None.
Schedule 10.02
Administrative Agent’s Office, Certain
Addresses for Notices
If to any Loan Party:
Celestica Inc.
5140 Yonge Street, Suite 1900
Toronto, ON M2N 6L7
Attn: [Contact Information Redacted]
Phone: [Contact Information Redacted]
Email: [Contact Information Redacted]
Web: www.celestica.com
With a copy to:
Celestica Inc.
5140 Yonge Street, Suite 1900
Toronto, ON M2N 6L7
Attn: [Contact Information Redacted]
Phone: [Contact Information Redacted]
Email: [Contact Information Redacted]
Web: www.celestica.com
And
Arnold & Porter Kaye Scholer LLP
250 W 55th Street
New York, New York 10019
Attn: [Contact Information Redacted]
Phone: [Contact Information Redacted]
Facsimile: [Contact Information Redacted]
Email: [Contact Information Redacted]
And
Arnold & Porter Kaye Scholer LLP
250 W 55th Street
New York, New York 10019
Attn: [Contact Information Redacted]
Phone: [Contact Information Redacted]
Facsimile: [Contact Information Redacted]
Email: [Contact Information Redacted]
And
Blake, Cassels & Graydon LLP
199 Bay Street, Suite 4000
Toronto, Ontario M5L1A9
Attn: [Contact Information Redacted]
Phone: [Contact Information Redacted]
Email: [Contact Information Redacted]
If to the Administrative Agent and/or Swing Line Lender:
Daily borrowing/repaying activity, billing and fee activity:
[Contact Information Redacted]
Bank of America
7105 Corporate Dr – Building C
Mail Code: [Contact Information Redacted]
PLANO, TX 75024
Phone: [Contact Information Redacted]
EMAIL: [Contact Information Redacted]
Wire Instructions
[**REDACTED**]
[Confidential]
For all other Notices as Administrative Agent:
agency related questions, financial reporting requirements, bank
group related issues, etc.:
Primary: [Contact Information Redacted]
Bank of America Plaza
540 W. Madison Street
Mail Code: [Contact Information Redacted]
Chicago, IL 60661
Attention: [Contact Information Redacted]
Email: [Contact Information Redacted]
Secondary: [Contact Information Redacted]
Bank of America Plaza
Agency Management
540 W. Madison Street
Mail Code: [Contact Information Redacted]
Chicago, IL 60661
Email: [Contact Information Redacted]
If to Bank of America, N.A. as an L/C Issuer:
[Contact Information Redacted]
Bank of America
1 Fleet Way
Scranton, PA 18507
Email: [Contact Information Redacted]
If to Canadian Imperial Bank of Commerce as an L/C Issuer:
Canadian Imperial Bank of Commerce
Address: Canadian Imperial Bank of Commerce
Credit Processing Services
595 Bay Street, 5th Floor
Toronto, ON M5G 2C2
Name: [Contact Information Redacted]
Title: [Contact
Information Redacted]
Phone: [Contact Information Redacted]
Email: [Contact Information Redacted]
Schedule 10.06
Disqualified Institutions
[**REDACTED**]
[Commercially Sensitive]
ANNEX C
Amended Exhibit E to the Credit
Agreement
[See attached.]
Annex C to Second Amendment
ANNEX C
TO SECOND AMENDMENT
AMENDED EXHIBIT E (FORM OF COMPLIANCE
CERTIFICATE)
EXHIBIT E
[FORM OF] COMPLIANCE CERTIFICATE
¨
Check for distribution to public and private side Lenders
Financial Statement Date: [_____,
______]
To: Bank of America, N.A., as Administrative
Agent
Ladies and Gentlemen:
Reference is made to that
certain Amended and Restated Credit Agreement, dated as of June 20, 2024 (as amended, modified, extended, restated, renewed, replaced
or supplemented from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined),
among Celestica Inc., an Ontario corporation (the “Company”), Celestica International LP, an Ontario limited partnership
(together with the Company, the “Canadian Borrowers”), Celestica (USA) Inc., a Delaware corporation (the “Initial
U.S. Borrower”), the other Borrowers from time to time party thereto, the Guarantors from time to time party thereto, the Lenders
from time to time party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer.
The undersigned Responsible
Officer hereby certifies as of the date hereof that [he/she] is the [chief executive officer][chief financial officer][treasurer][controller]
of the Company, and that, as such, he/she is authorized to execute and deliver this Compliance Certificate to the Administrative Agent
on the behalf of the Company, and that:
[Use following paragraph 1 for fiscal year-end financial
statements]
1. Attached
hereto as Schedule 1 are the year-end audited financial statements required by Section 6.01(a) of the Credit
Agreement for the fiscal year of the Company ended as of the above date, together with the report and opinion of an independent
certified public accountant required by such section, consisting of the consolidated balance sheet of the Company and its
Subsidiaries as at the end of such fiscal year and the related consolidated statements of operations, comprehensive income, changes
in shareholders’ equity and cash flows for such fiscal year. Such consolidated statements are fairly stated in all material
respects when considered in relation to the consolidated financial statements of the Company and its Subsidiaries.
[Use following paragraph 1 for fiscal quarter-end financial
statements]
1. Attached
hereto as Schedule 1 are the unaudited financial statements required by Section 6.01(b) of the Credit Agreement for
the fiscal quarter of the Company ended as of the above date. Such financial statements fairly present the financial condition,
results of operations, shareholders’ equity and cash flows of the Company and its Restricted Subsidiaries in accordance with
the Applicable Accounting Standard as at such date and for such period, subject only to normal year-end audit adjustments and the
absence of footnotes.
2. The
undersigned has reviewed and is familiar with the terms of the Credit Agreement and has made, or has caused to be made under [his/her]
supervision, a detailed review of the transactions and condition (financial or otherwise) of the Company and its Subsidiaries during the
accounting period covered by the attached financial statements.
3. A
review of the activities of the Company and its Subsidiaries during such fiscal period has been made under the supervision of the undersigned
with a view to determining whether during such fiscal period the Company and each of its Subsidiaries performed and observed all its respective
Obligations under the Loan Documents, and
[select one:]
[to the best knowledge of
the undersigned during such fiscal period, the Company and each of its Subsidiaries performed and observed each covenant and condition
of the Loan Documents applicable to it, and no Default has occurred and is continuing.]
--or--
[the following covenants or conditions have not been performed
or observed and the following is a list of each such Default and its nature and status:]
4. The
representations and warranties of the Company and each other Loan Party contained in Article V of the Credit Agreement and in each
other Loan Document, or which are contained in any document furnished at any time under or in connection with the Loan Documents, are
true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on
and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which
case they are true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all
respects) as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained
in clauses (a) and (b) of Section 5.05 of the 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 Credit Agreement, including the statements in connection
with which this Compliance Certificate is delivered.
5. Set
forth on Schedule 2 are detailed calculations [(a)] demonstrating compliance by the Borrower with the financial covenants contained
in Section 7.11 of the Credit Agreement as of the end of the fiscal period referred to above[, and (b) of (i) the Consolidated
Total Net Leverage Ratio, (ii) the Consolidated Secured Leverage Ratio, (iii) the Consolidated Secured Net Leverage Ratio, and
(iv) the Consolidated First Lien Net Leverage Ratio, in each case, as of the end of the fiscal year referred to above].1
[select one:]
[6. Schedule
5.13 to the Credit Agreement[, as such Schedule has been supplemented pursuant to the Compliance Certificates delivered to the
Administrative Agent for the fiscal period[s] of the Company ended [ ],]2 is
accurate and complete in all material respects as of the above date, and no supplement is required to cause such Schedule to be
accurate and complete in all material respects as of such date.]
1 After the Collateral Release Date, clause (b) will
only reference the calculation of the Consolidated Total Net Leverage Ratio.
2 Include bracketed language if one
or more supplements to Schedule 5.13 to the Credit Agreement have been delivered in connection with the delivery of one or more prior
Compliance Certificates. If any such supplement has been delivered, indicate which Compliance Certificate(s) contained such supplement
by noting the last day of the fiscal period covered by each such Compliance Certificate.
--or--
[7. Attached
hereto as Schedule 3 is a supplement to Schedule 5.13 to the Credit Agreement such that, as supplemented by such Schedule 3,
Schedule 5.13 would be accurate in all material respects as of the above date.]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned has executed
this Compliance Certificate as of [________________ , ______________].
CELESTICA INC.
By:
Name:
Title:
ANNEX C
TO SECOND AMENDMENT
AMENDED EXHIBIT E (FORM OF COMPLIANCE
CERTIFICATE)
For the Quarter/Year ended [______________] (the “Statement
Date”)
SCHEDULE 1
to the Compliance Certificate
See Attached.
For the Quarter/Year ended [___________________] (the “Statement Date”)
SCHEDULE 2
to the Compliance Certificate
($ in 000’s)
I. Section 7.11(a) – Consolidated Interest Coverage Ratio.
A. Consolidated EBITDA for the period of the four fiscal quarters then ending on the
above date (“Subject Period”)3:
1. The net earnings of the Company and its Restricted Subsidiaries
(excluding extraordinary gains and extraordinary losses) for the Subject Period (“Consolidated Net Income”):
$__________
For the following Lines I.A.2, 3, 4, 5, 6 and 8, without duplication and to the extent
deducted (and not added back) in calculating Consolidated Net Income for the Subject Period listed in Line I.A.1:
2. Consolidated Interest Charges for the Subject Period (other than the implicit financing costs in respect of Synthetic Lease Obligations):
$__________
3. provision for federal, state, local and foreign Taxes by the Company and its Restricted Subsidiaries for the Subject Period:
$__________
4. depreciation and amortization expense for the Subject Period:
$__________
5. non-cash charges and purchase accounting
deductions reducing Consolidated Net Income for the Subject Period listed in Line I.A.1, including but not limited to (A) any write
offs or write downs, (B) losses on sales, disposals or abandonment of, or any impairment charges or asset write offs related to,
intangible assets, long-lived assets and investments in debt and equity securities and (C) other non-cash charges, non-cash expenses
or non-cash losses for the Subject Period4:
$__________
6. unusual or non-recurring expenses
and charges for the Subject Period (including, for the avoidance of doubt, onetime charges in respect of bonus payments made in connection
with any Acquisition)5:
$__________
3 Calculated for the Company and
its Restricted Subsidiaries on a consolidated basis.
4 Nothing contained in this Line
I.A.5 shall exclude from the calculation of Consolidated EBITDA (1) any non-cash charge that is expected to be paid in cash in any
future period or (2) any write-down of accounts receivable).
5 The aggregate amount added to
the calculation of Consolidated EBITDA pursuant to this Line I.A.6 and Line I.A.7 shall not exceed twenty-five percent (25%) of
Consolidated EBITDA (calculated prior to giving effect to any adjustment made pursuant to this Line I.A.6 and Line I.A.7 for the
Subject Period).
7. the amount of synergies and cost savings projected by the Company
in good faith to be realized as a result of any Permitted Acquisition so long as (A) such synergies and costs savings are (I)
reasonably identifiable and factually supportable and (II) reasonably attributable to the Permitted Acquisition specified and
reasonably anticipated to result therefrom, and (B) the benefits resulting from such Permitted Acquisition are reasonably expected
to be realized within twenty-four (24) months of the closing date of such Permitted Acquisition6:
$__________
8. the amount of any costs, charges, accruals, reserves or expenses
attributable to the undertaking and/or implementation of cost savings initiatives, operating expense reductions, operating improvements,
product margin synergies and product cost and other synergies and similar initiatives, integration, transition, reconstruction, decommissioning,
recommissioning or reconfiguration of fixed assets for alternative uses, restructuring costs (including those related to tax restructurings),
charges, accruals, reserves or expenses attributable to the undertaking and/or implementation of cost savings initiatives, operating
expense reductions, business optimization and other restructuring costs, charges, accruals, reserves and expenses (including, but
not limited to, costs related to the opening, pre-opening, closure, relocation and/or consolidation of locations, recruitment expenses
(including headhunter fees and relocation expenses), severance payments, and professional and consulting fees incurred in connection
with any of the foregoing) for the Subject Period7:
$__________
For the following Lines I.A.9, 10 and 11, without duplication
and to the extent included (and not deducted) in calculating Consolidated Net Income for the Subject Period listed in Line I.A.1:
9. federal, state, local and foreign Tax recoveries of the Company and its Restricted Subsidiaries for the Subject Period:
$__________
10. non-cash items (excluding (A) any non-cash recovery that is expected
to be received in cash in any future period and (B) any reversal of a write-down of current assets) increasing Consolidated Net Income
for the Subject Period listed in Line I.A.1:
$__________
11. unusual or non-recurring gains for the Subject Period incurred outside the ordinary course of business:
$__________
6 The aggregate amount added to the calculation of
Consolidated EBITDA pursuant to this Line I.A.7 and Line I.A.6 shall not exceed twenty-five percent (25%) of Consolidated EBITDA
(calculated prior to giving effect to any adjustment made pursuant to this Line I.A.7 and Line I.A.6 for the Subject Period).
7 The aggregate amount added to the calculation of
Consolidated EBITDA pursuant to this Line I.A.8 shall not exceed $50,000,000 per annum.
12. Consolidated
EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5 + 6 + 7 + 8 - 9 - 10 -
11)8:
$__________
B. Consolidated
Interest Charges for the Subject Period9:
1. All
interest, premium payments, debt discount, fees, charges and related expenses of the Company and its Restricted Subsidiaries in connection
with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to
the extent treated as interest in accordance with the Applicable Accounting Standard as in effect for the Subject Period:
$__________
2. the
portion of rent expense of the Company and its Restricted Subsidiaries with respect to such period under capital leases that is treated
as interest in accordance with the Applicable Accounting Standard as in effect for the Subject Period:
$__________
3. Consolidated
Interest Charges (Lines I.B.1 + 2):
$__________
C. Consolidated
Interest Coverage Ratio (Line I.A.12 ÷ Line I.B.3):
D. minimum
Consolidated Interest Coverage Ratio permitted for the Subject Period:
3.25:1.00
II. Section
7.11(b) – Consolidated Total Net Leverage Ratio.
A. Consolidated
EBITDA for the Subject Period (Line I.A.12):
$__________
B. Consolidated
Funded Indebtedness at the Statement Date10:
1. the
outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations under the
Credit Agreement) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments:
$__________
2. all
purchase money Indebtedness:
$__________
3. all
obligations (whether direct or contingent) arising under letters of credit (including standby and commercial), bankers’ acceptances,
bank guaranties, surety bonds and similar instruments:
$__________
8In the event of the acquisition by the Company or a Restricted
Subsidiary of a newly acquired Restricted Subsidiary or operation (as such term is used in the definition of “Pro Forma Basis”
in the Credit Agreement), Consolidated EBITDA will include the Target EBITDA of the newly acquired Restricted Subsidiary or operation
on a Pro Forma Basis in accordance with the terms of the definition of “Pro Forma Basis” in the Credit Agreement; provided,
that, for the avoidance of doubt, all amounts herein in respect of stock-based compensation by the Company or any Restricted Subsidiary
are accounted for on a cash basis.
9Calculated for the Company and its Restricted Subsidiaries
on a consolidated basis.
10Calculated for the Company and its Restricted Subsidiaries
on a consolidated basis.
4. all
obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course
of business):
$__________
5. all Attributable Indebtedness (including Attributable
Indebtedness in respect of capital leases):
$__________
6. without
duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in Lines II.B.1 through 5 above
of Persons other than the Company or any Restricted Subsidiary:
$__________
7. all
Indebtedness of the types referred to in Lines II.B.1 through 6 above of any partnership or joint venture (other than
a joint venture that is itself a corporation or limited liability company) in which the Company or a Restricted Subsidiary is a general
partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Company or such Restricted Subsidiary:
$__________
8. Consolidated Funded Indebtedness (Lines
II.B.1 + 2 + 3 + 4 + 5 + 6 + 7):
$__________
C. Qualified Cash,11 without duplication:
Before the Collateral Release Date:
1. unrestricted cash held in a Controlled
Account over which the Administrative Agent has a perfected Lien to secure the Obligations:
$__________
2. unrestricted cash held in an account otherwise
subject to a perfected Lien of the Administrative Agent to secure the Obligations:
$__________
3. unrestricted Cash Equivalents of the Company
and its Restricted Subsidiaries:
$__________
4. Qualified
Cash (Lines II.C.1 + 2 + 3):12
$__________
On and after the Collateral Release Date:
1. unrestricted cash of the Company and its Restricted Subsidiaries:
$__________
11 Calculated for the Company and its Restricted
Subsidiaries.
12 Qualified Cash for purposes of the calculation of the
Consolidated Total Net Leverage Ratio not to exceed $250,000,000 except as otherwise specified in the definition of “Incremental
Amount” in the Credit Agreement, Section 7.02(x) of the Credit Agreement, Section 7.04(h) of the Credit Agreement and Section 7.06(e)
of the Credit Agreement.
2. unrestricted Cash Equivalents of
the Company and its Restricted Subsidiaries:
$__________
3. Qualified
Cash (Lines II.C.1 + 2):13
$__________
D.
Line II.B.8 – Line II.C.[4][3]:14
$__________
E. Consolidated
Total Net Leverage Ratio ((Line II.B.8 – Line II.C.4) ÷ Line
II.A):
$__________
F. maximum
Consolidated Total Net Leverage Ratio permitted for the Subject Period:
____ : 1.0015
III. Consolidated First Lien Net Leverage Ratio.
A.
Consolidated First Lien Indebtedness:16
$__________
B.
Qualified Cash (Line II.C.[4][3]):
$__________
C.
Line III.A – Line III.B:
$__________
D.
Consolidated EBITDA for the Subject Period (Line
I.A.12):
$__________
E.
Consolidated First Lien Net Leverage Ratio (Line
III.C ÷ Line III.D):
______ : 1.00
13 Qualified Cash for purposes of the calculation of the
Consolidated Total Net Leverage Ratio not to exceed $250,000,000 except as otherwise specified in the definition of “Incremental
Amount” in the Credit Agreement, Section 7.02(x) of the Credit Agreement, Section 7.04(h) of the Credit Agreement and Section 7.06(e)
of the Credit Agreement.
14 Qualified Cash for purposes of the calculation of the
Consolidated Total Net Leverage Ratio not to exceed $250,000,000 except as otherwise specified in the definition of “Incremental
Amount” in the Credit Agreement, Section 7.02(x) of the Credit Agreement, Section 7.04(h) of the Credit Agreement and Section 7.06(e)
of the Credit Agreement. Unless otherwise specified, to list the lesser of Line II.C.[4][3] and $250,000,000.
15The maximum Consolidated Total Net Leverage Ratio permitted
for any Subject Period is 4.00:1.00; provided, that, upon the occurrence of a Qualified Acquisition, for the four (4) fiscal quarters
commencing with the fiscal quarter during which such Qualified Acquisition closes (each such period, a “Leverage Increase Period”),
the required ratio may, upon receipt by the Administrative Agent of a Qualified Acquisition Notice, be increased to 4.50:1.00; provided
further, that (i) the maximum permitted Consolidated Total Net Leverage Ratio shall revert to 4.00:1.00 following the end of each Leverage
Increase Period, (ii) for at least two (2) fiscal quarters ending immediately following each Leverage Increase Period, the Consolidated
Total Net Leverage Ratio as of the end of each such fiscal quarter shall not be permitted to be greater than 4:00:1.00 prior to giving
effect to another Leverage Increase Period and (iii) the Leverage Increase Period shall apply for purposes of determining compliance
with Section 7.11(b) of the Credit Agreement, for purposes of any Qualified Acquisition Pro Forma Determination and for purposes of determining
Pro Forma Compliance in connection with the incurrence of Indebtedness to finance such Qualified Acquisition under Section 2.16 of the
Credit Agreement or Section 7.03(h) of the Credit Agreement. 16Calculated for the Company and its Restricted Subsidiaries on a consolidated
basis.
IV. Consolidated Secured Leverage Ratio.
A.
Consolidated Secured
Indebtedness:17
$__________
B.
Consolidated EBITDA for the
Subject Period (Line I.A.12):
$__________
C.
Consolidated Secured Leverage
Ratio (Line IV.A ÷ Line IV.B):
______ : 1.00
D.
Consolidated Excess Cash Flow
prepayment percentage required pursuant to Section 2.06(b)(iii) of the Credit Agreement?
________ %
V. Consolidated Secured Net Leverage Ratio.
A.
Consolidated Secured
Indebtedness (Line IV.A):
$__________
B.
Qualified Cash (Line II.C.[4][3]):
$__________
C.
Line III.A – Line
III.B:
$__________
D.
Consolidated EBITDA for the
Subject Period (Line I.A.12):
$__________
E.
Consolidated Secured Net Leverage
Ratio (Line V.C ÷ Line V.D):
______ : 1.00
17Calculated for the Company and its Restricted Subsidiaries
on a consolidated basis.
ANNEX D
Conditional Amended Credit Agreement
[See attached.]
Annex D to Second Amendment
ANNEX D
TO SECOND AMENDMENT
CONDITIONAL AMENDED CREDIT AGREEMENT
DEAL CUSIP: C2348CAK3
REVOLVER CUSIP:
C2348CAL1
TERM A CUSIP: C2348CAM9
TERM B CUSIP: C2348CAJ6
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 20, 2024
among
CELESTICA INC.,
CELESTICA INTERNATIONAL LP,
CELESTICA (USA) INC. and
CERTAIN SUBSIDIARIES OF CELESTICA INC. IDENTIFIED HEREIN,
as the Borrowers,
CELESTICA INC. and
CERTAIN SUBSIDIARIES OF CELESTICA INC. IDENTIFIED
HEREIN,
as the Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and
an L/C Issuer,
and
THE OTHER LENDERS PARTY HERETO
ROYAL BANK OF CANADA,
CITIBANK, N.A.,
BNP PARIBAS SECURITIES CORP.,
HSBC SECURITIES (USA) INC.,
and
TD SECURITIES (USA) LLC,
as Co-Documentation Agents
CANADIAN IMPERIAL BANK OF COMMERCE and CIBC WORLD
MARKETS CORP.,
MUFG BANK, LTD., CANADA BRANCH,
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK (CANADA BRANCH),
as Co-Syndication Agents
BANK OF AMERICA, N.A.,
CANADIAN IMPERIAL BANK OF COMMERCE and CIBC WORLD MARKETS CORP.,
MUFG BANK, LTD., CANADA BRANCH,
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK (CANADA BRANCH),
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
1
1.01
Defined Terms
1
1.02
Other Interpretive Provisions
59
1.03
Accounting Terms
60
1.04
Rounding
61
1.05
Exchange Rates; Currency Equivalents; Rates; Licensing
61
1.06
Additional Alternative Currencies
62
1.07
Change of Currency
63
1.08
Times of Day
64
1.09
Letter of Credit Amounts
64
1.10
Limited Condition Acquisition
64
1.11
[Reserved]
65
1.12
Irish Terms
65
1.13
Spanish Terms
65
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
66
2.01
Revolving Loans, Term B Loan and Term A Loan
66
2.02
Borrowings, Conversions and Continuations of Loans
68
2.03
Letters of Credit
69
2.04
[Reserved]
79
2.05
Swing Line Loans
79
2.06
Prepayments
82
2.07
Termination or Reduction of Commitments
86
2.08
Repayment of Loans
86
2.09
Interest
87
2.10
Fees
88
2.11
Computation of Interest and Fees
88
2.12
Evidence of Debt
89
2.13
Payments Generally; Administrative Agent’s Clawback
89
2.14
Sharing of Payments by Lenders
91
2.15
Designated Borrowers
92
2.16
Increase in Commitments
93
2.17
Cash Collateral
97
2.18
Defaulting Lenders
98
2.19
Designated Lenders
101
2.20
Joint and Several Liability
101
2.21
Sustainability Adjustments
101
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
102
3.01
Taxes
102
3.02
Illegality
107
3.03
Inability to Determine Rates
109
3.04
Increased Costs; Reserves
110
3.05
Compensation for Losses
112
3.06
Mitigation Obligations; Replacement of Lenders
112
3.07
Replacement of Rates
113
3.08
Survival
116
i
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
116
4.01
Conditions of Initial Credit Extension
116
4.02
Conditions to all Credit Extensions
120
ARTICLE V. REPRESENTATIONS AND WARRANTIES
121
5.01
Existence, Qualification and Power
121
5.02
Authorization; No Contravention
121
5.03
Governmental Authorization; Other Consents
121
5.04
Binding Effect
121
5.05
Financial Statements; No Material Adverse Effect
122
5.06
Litigation
122
5.07
No Default
122
5.08
Ownership of Property; Liens
122
5.09
Environmental Compliance
122
5.10
Insurance
122
5.11
Taxes
123
5.12
ERISA and Canadian Pension Plan Compliance
123
5.13
Subsidiaries; Equity Interests
124
5.14
Margin Regulations; Investment Company Act
124
5.15
Disclosure
125
5.16
Compliance with Laws
125
5.17
Taxpayer Identification Number; Other Identifying Information
125
5.18
Casualty, Etc
125
5.19
Solvency
125
5.20
Intellectual Property; Licenses, Etc
125
5.21
Labor Matters
126
5.22
OFAC
126
5.23
Anti-Corruption Laws
126
5.24
Collateral Documents
126
5.25
Representations as to Non-U.S. Obligors
126
5.26
Affected Financial Institutions
128
5.27
Covered Entities
128
5.28
Centre of Main Interests
128
5.29
Outbound Investment Rules
128
ARTICLE VI. AFFIRMATIVE COVENANTS
129
6.01
Financial Statements
129
6.02
Certificates; Other Information
129
6.03
Notices
131
6.04
Payment of Obligations
132
6.05
Preservation of Existence, Etc
132
6.06
Maintenance of Properties
132
6.07
Maintenance and Evidence of Insurance
133
6.08
Compliance with Laws
133
6.09
Books and Records
133
6.10
Inspection Rights
134
6.11
Use of Proceeds
134
6.12
Compliance with Environmental Laws
134
6.13
Maintenance of Ratings
134
6.14
Covenant to Guarantee Obligations
135
6.15
Covenant to Give Security
136
6.16
Anti-Corruption Laws; Sanctions
137
6.17
Further Assurances
138
6.18
Pari Passu Ranking
138
6.19
Post-Closing Obligations
138
6.20
Designation of Subsidiaries
138
6.21
Financial Assistance
139
6.22
Investment Grade Collateral Release
139
ii
ARTICLE VII. NEGATIVE COVENANTS
140
7.01
Liens
140
7.02
Investments
143
7.03
Indebtedness
146
7.04
Fundamental Changes
150
7.05
Dispositions
151
7.06
Restricted Payments and Junior Payments
154
7.07
Change in Nature of Business
154
7.08
Transactions with Affiliates
155
7.09
Burdensome Agreements
155
7.10
Use of Proceeds
157
7.11
Financial Covenants
157
7.12
Organization Documents; Fiscal Year; Legal Name, Jurisdiction of Formation and Form of Entity
157
7.13
Sale Leasebacks
158
7.14
Amendments to and Prepayments of Additional Indebtedness
158
7.15
Canadian Pension Matters
158
7.16
Sanctions
158
7.17
Anti-Corruption Laws
158
7.18
Outbound Investment Rules
158
7.19
Transfers to Non-Loan Parties
159
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
159
8.01
Events of Default
159
8.02
Remedies Upon Event of Default
162
8.03
Application of Funds
163
ARTICLE IX. ADMINISTRATIVE AGENT
164
9.01
Appointment and Authority
164
9.02
Rights as a Lender
166
9.03
Exculpatory Provisions
166
9.04
Reliance by Administrative Agent
167
9.05
Delegation of Duties
167
9.06
Resignation of Administrative Agent
167
9.07
Non-Reliance on Administrative Agent, Arrangers, Sustainability Coordinators and Other Lenders
169
9.08
No Other Duties, Etc
170
9.09
Administrative Agent May File Proofs of Claim;
Credit Bidding
170
9.10
Collateral and Guaranty Matters
171
9.11
Secured Cash Management Agreements and Secured Swap Contracts
172
9.12
Certain ERISA Matters
172
9.13
Spanish Formalities
174
9.14
Spanish Calculations; Executive Enforcement
174
9.15
Recovery of Erroneous Payments
175
iii
ARTICLE X. MISCELLANEOUS
175
10.01
Amendments, Etc.
175
10.02
Notices; Effectiveness; Electronic Communication
181
10.03
No Waiver; Cumulative Remedies; Enforcement
183
10.04
Expenses; Indemnity; Damage Waiver
184
10.05
Payments Set Aside
185
10.06
Successors and Assigns
186
10.07
Treatment of Certain Information; Confidentiality
193
10.08
Right of Setoff
194
10.09
Interest Rate Limitation
194
10.10
Integration; Effectiveness
195
10.11
Survival of Representations and Warranties
195
10.12
Severability
195
10.13
Replacement of Lenders
195
10.14
Governing Law; Jurisdiction; Etc
196
10.15
Service of Process on the Designated Borrowers
197
10.16
Waiver of Jury Trial
198
10.17
No Advisory or Fiduciary Responsibility
198
10.18
Electronic Execution; Electronic Records; Counterparts
199
10.19
USA PATRIOT Act and Canadian AML Acts
200
10.20
Judgment Currency
200
10.21
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
201
10.22
Appointment of Company as Agent
201
10.23
Acknowledgement Regarding Any Supported QFCs
201
10.24
Parallel Debt (Covenant to Pay the Administrative Agent)
202
10.25
Amendment and Restatement of Existing Credit Agreement
204
10.26
[Reserved]
205
10.27
Resignation of Sustainability Coordinators
205
ARTICLE XI. GUARANTY
205
11.01
Guaranty
205
11.02
Obligations Unconditional
206
11.03
Reinstatement
208
11.04
Certain Additional Waivers
208
11.05
Remedies
209
11.06
Rights of Contribution
210
11.07
Guarantee of Payment; Continuing Guarantee
210
11.08
Keepwell
210
11.09
Limitation on Korean Guarantors
211
11.10
Limitation on Irish Guarantors
212
11.11
Limitation on English Guarantors
212
iv
SCHEDULES
1.01
Existing Letters of Credit
2.01
Commitments and Applicable Percentages
2.11
Day Basis for Alternative Currencies
5.13
Subsidiaries
5.17
Identification Numbers for Canadian Borrowers and Designated Borrowers that are Non-U.S. Subsidiaries
5.21
Labor Matters
6.19
Post-Closing Obligations; Certain Subsidiaries
7.01
Existing Liens
7.02
Permitted Investments
7.03
Existing Indebtedness
7.04
Permitted Dissolutions
7.05
Permitted Dispositions
7.08
Existing Transactions with Affiliates
7.09
Existing Burdensome Agreements
10.02
Administrative Agent’s Office; Certain Addresses for Notices
10.06
Disqualified Institutions
EXHIBITS
A
Form of Loan Notice
B
Form of Swing Line Loan Notice
C
Form of Notice of Loan Prepayment
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 Designated Borrower Request and Assumption
Agreement
H
Form of Designated Borrower Notice
I
Form of U.S. Tax Compliance Certificate
J
Form of Joinder Agreement
K
Form of Secured Party Designation Notice
v
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED
CREDIT AGREEMENT (“Agreement”) is entered into as of June 20, 2024, among CELESTICA INC., an Ontario corporation
(the “Company”), CELESTICA INTERNATIONAL LP, an Ontario limited partnership (together with the Company, the “Canadian
Borrowers”), certain Non-U.S. Subsidiaries of the Company party hereto pursuant to Section 2.15 (each a “Non-U.S.
Designated Borrower” and, together with the Canadian Borrowers, the “Non-U.S. Borrowers”), CELESTICA (USA)
INC., a Delaware corporation (the “Initial U.S. Borrower”), certain U.S. Subsidiaries of the Company party hereto pursuant
to Section 2.15 (each a “U.S. Designated Borrower” and, together with the Initial U.S. Borrower, the “U.S.
Borrowers”; the U.S. Designated Borrowers together with the Non-U.S. Designated Borrowers, the “Designated Borrowers”
and each, a “Designated Borrower”; the U.S. Borrowers together with the Non-U.S. Borrowers, the “Borrowers”
and each a, “Borrower”), each Guarantor from time to time party hereto, each Lender from time to time party hereto,
and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer.
The Borrowers, the guarantors
party thereto, the lenders party thereto, and Bank of America, N.A., as administrative agent, swing line lender and an L/C issuer, are
party to that certain Credit Agreement, dated as of June 27, 2018 (as amended, restated, amended and restated, supplemented, or otherwise
modified prior to the Closing Date, the “Existing Credit Agreement”).
The parties hereto wish to
amend and restate the Existing Credit Agreement to provide revolving and term loan credit facilities for the purposes set forth herein
and make certain amendments and modifications to the Existing Credit Agreement, in each case, on the terms and conditions set forth herein.
In consideration of the mutual
covenants and agreements herein contained, the parties hereto covenant and agree that the Existing Credit Agreement is hereby amended
and restated 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:
“Accepting Lenders” has the meaning specified
in Section 10.01(c).
“Accounting Change
Date” means the date specified by the Company in an advance written notice (which may be by email) to the Administrative Agent
as the “Accounting Change Date” under this Agreement, upon a determination (if any) made in accordance with Rule 3b-4
under the Securities Exchange Act of 1934 that it fails to qualify as a foreign private issuer (as such term is defined in Rule 3b-4
of the Securities Exchange Act of 1934); provided, that such date shall be the first day of a fiscal year of the Company.
“Accounting Standard
Change” means the election by the Company to change its financial reporting practices such that, from and after the Accounting
Change Date, the consolidated financial statements of the Company and its Subsidiaries shall be prepared in accordance with GAAP.
“Acquired Indebtedness” has the meaning
specified in Section 7.03(i).
“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 any business or division of a Person, (b) the
acquisition of in excess of fifty percent (50%) of the Equity Interests of any Person, or otherwise causing any Person to become a
Subsidiary, or (c) a merger, amalgamation or consolidation or any other combination with another Person (other than a Person
that is a Restricted Subsidiary before giving effect to such merger, amalgamation or consolidation; provided that the Company
or the Restricted Subsidiary is the surviving entity).
1
“Additional Indebtedness” has the meaning
specified in Section 7.03(h).
“Additional Secured
Obligations” means (a) all debts, liabilities, obligations, covenants and duties of any Loan Party or any Subsidiary arising
under any Secured Swap Contract and (b) all debts, liabilities, obligations, covenants and duties of any Loan Party or any Subsidiary
arising under any Secured Cash Management Agreement, in the case of each of clauses (a) and (b), whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including
all costs and expenses incurred in connection with the enforcement and collection of the foregoing and interest and fees that accrue after
the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person
as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided
that Additional Secured Obligations of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party.
“Administrative Agent”
means Bank of America (or any of its designated branch offices or affiliates, including Bank of America, N.A., acting through its Canada
Branch for Loans denominated in Canadian Dollars) in its capacity as administrative agent under any of the Loan Documents, or any successor
administrative agent; provided that, for purposes of the Collateral Documents, each reference to the Administrative Agent with
respect to the identity of the holder of the Lien or security interest granted therein shall mean Bank of America, N.A., in its capacity
as Administrative Agent under any of the Loan Documents (except as may be expressly stated otherwise in such Collateral Document).
“Administrative Agent’s
Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth
on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative
Agent may from time to time notify the Company and the Lenders.
“Administrative Questionnaire”
means an Administrative Questionnaire in 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 U.K. Financial Institution.
“Affiliate”
means, with respect to a specified 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.
“Aggregate Revolving
Commitments” means the Revolving Commitments of all the Revolving Lenders. The initial amount of the Aggregate Revolving Commitments
in effect on the Second Amendment Effective Date is ONE BILLION SEVEN HUNDRED FIFTY MILLION DOLLARS ($1,750,000,000).
“Agreed Currency” means Dollars or any
Alternative Currency, as applicable.
2
“Agreement” means this Credit Agreement.
“Agreement Currency” has the meaning specified
in Section 10.20.
“All-In-Yield”
means, with respect to any Term Facility, the weighted average yield to maturity with respect to such Term Facility which shall take into
account any interest rate margins, interest rate floors or similar devices and shall be deemed to include any original issue discount
and any fees (other than facility arrangement, underwriting or other closing fees and expenses not paid for the account of, or distributed
to, all Lenders providing such Term Facility) paid or payable to such Lenders in connection with such Term Facility, in each case, as
reasonably determined by the Administrative Agent in a manner consistent with customary financial practice based on the Weighted Average
Life of such Term Facility, commencing from the borrowing date of such Term Facility and assuming that the interest rate (including the
Applicable Rate) for such Term Facility in effect on such borrowing date (after giving effect to the Indebtedness incurred in connection
with such Term Facility) shall be the interest rate for the entire Weighted Average Life of such Term Facility.
“Alternative Currency”
means each of the following currencies: Canadian Dollars, Euro and Sterling, together with each other currency (other than Dollars) that
is approved in accordance with Section 1.06; provided that for each Alternative Currency, such requested currency is
an Eligible Currency.
“Alternative Currency Daily Rate” means,
for any day, with respect to any Credit Extension:
(a) denominated
in Sterling, the rate per annum equal to SONIA determined pursuant to the definition thereof; and
(b) denominated
in any other Alternative Currency (to the extent such Loans denominated in such currency will bear interest at a daily rate), the daily
rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative
Agent and the relevant Lenders pursuant to Section 1.06(c) plus the adjustment (if any) determined by the Administrative
Agent and the relevant Lenders pursuant to Section 1.06(c);
provided, that, if any Alternative
Currency Daily Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. Any change in an Alternative
Currency Daily Rate shall be effective from and including the date of such change without further notice.
“Alternative Currency
Daily Rate Loan” means a Loan that bears interest at a rate based on the definition of “Alternative Currency Daily Rate”.
All Alternative Currency Daily Rate Loans must be denominated in an Alternative Currency.
“Alternative Currency
Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, by reference to Bloomberg
(or such other publicly available service for displaying exchange rates), to be the exchange rate for the purchase of such Alternative
Currency with Dollars at approximately 11:00 a.m. on the date two (2) Business Days prior to the date as of which the foreign
exchange computation is made; provided, however, that if no such rate is available, the “Alternative Currency Equivalent”
shall be determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, using any reasonable method of determination
it deems appropriate in its sole discretion (and such determination shall be conclusive absent manifest error).
3
“Alternative Currency
Loan” means an Alternative Currency Daily Rate Loan or an Alternative Currency Term Rate Loan, as applicable.
“Alternative Currency
Scheduled Unavailability Date” has the meaning specified in Section 3.07(b)(ii).
“Alternative Currency
Sublimit” means an amount equal to the lesser of (a) $100,000,000 and (b) the Aggregate Revolving Commitments. The
Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“Alternative Currency Successor Rate”
has the meaning specified in Section 3.07(b).
“Alternative Currency Term Rate” means,
for any Interest Period, with respect to any Loan:
(a) denominated
in Euros, the rate per annum equal to the Euro Interbank Offered Rate (“EURIBOR”), as published on the applicable Reuters
screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent
from time to time) on the day that is two (2) TARGET Days preceding the first day of such Interest Period with a term equivalent
to such Interest Period;
(b) denominated
in Canadian Dollars, the rate per annum equal to the forward-looking term rate based on CORRA (“Term CORRA”), as published
on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated
by the Administrative Agent from time to time) (in such case, the “Term CORRA Rate”) on the day that is two (2) Business
Days prior to the first day of such Interest Period (or if such day is not a Business Day, then on the immediately preceding Business
Day) with a term equivalent to such Interest Period plus the Term CORRA Adjustment for such Interest Period; and
(c) denominated
in any other Alternative Currency (to the extent such Loans denominated in such currency will bear interest at a term rate), the term
rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative
Agent and the relevant Lenders pursuant to Section 1.06(a) plus the adjustment (if any) determined by the Administrative
Agent and the relevant Lenders pursuant to Section 1.06(a);
provided, that, if any Alternative
Currency Term Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Alternative Currency
Term Rate Loan” means a Loan that bears interest at a rate based on the definition of “Alternative Currency Term Rate”.
All Alternative Currency Term Rate Loans must be denominated in an Alternative Currency.
“Applicable Accounting
Standard” means, as of any date of determination, (a) prior to the delivery of the first audited financial statements of
the Company to be delivered after the Accounting Change Date, IFRS, and (b) on or after delivery of the first audited financial
statements of the Company to be delivered after the Accounting Change Date (and with respect to any calculations provided concurrently
with such audited financial statements), GAAP; provided, that when used with respect to the preparation and delivery of financial
statements pursuant to Section 6.01, “Applicable Accounting Standard” means, as of any date of determination,
(x) prior to the Accounting Change Date, IFRS, and (y) on or after the Accounting Change Date, GAAP.
4
“Applicable Authority”
means, with respect to any Alternative Currency, the applicable administrator for the Relevant Rate for such Alternative Currency or any
Governmental Authority having jurisdiction over the Administrative Agent or such administrator.
“Applicable Non-U.S. Obligor Documents”
has the meaning specified in Section 5.25(a).
“Applicable Percentage”
means with respect to any Lender at any time, (a) with respect to such Lender’s Revolving Commitment at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment
at such time; provided that if the commitment of each Lender to make Loans and the obligation of the L/C Issuers to make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Revolving 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 (b) with respect to such Lender’s portion of an outstanding Term Facility at any
time, the percentage (carried out to the ninth decimal place) of the outstanding principal amount of such Term Facility held by such Lender
at such time. The Applicable Percentage of each Lender (i) (x) with respect to each Lender holding an outstanding portion of
the Term B Loan, as of the Closing Date is set forth opposite the name of such Lender on Schedule 2.01 and (y) with respect
to the Term A Loan Commitments and the Aggregate Revolving Commitments, as of the Second Amendment Effective Date is set forth opposite
the name of such Lender on Schedule 2.01, as amended by the Second Amendment and (ii) of each Person that becomes a Lender
after the Closing Date is set forth in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or in any documentation
executed by such Lender in connection with an Incremental Facility. The Applicable Percentages shall be subject to adjustment as provided
in Section 2.18.
“Applicable Rate”
means (a) with respect to the Term B Loan, one and 3/4 of one percent (1.75%) per annum in the case of Term
SOFR Loans and 3/4 of one percent (0.75%) per annum in the case of Base Rate Loans, (b) [reserved], (c) with
respect to any Incremental Term Loan, the rate per annum set forth in the Incremental Facility Amendment establishing such Incremental
Term Loans, subject, in the case of any Incremental Tranche B Term Loan, to the provisions of Section 2.16(j) and (d) with
respect to the Term A Loan, Revolving Loans, Swing Line Loans, Letter of Credit Fees and the commitment fee payable pursuant to Section 2.10(a),
the following percentages per annum, based upon the Corporate Rating as set forth below:
Pricing
Level
Corporate Rating
S&P/Moody’s/Fitch
Term SOFR Loans/Term
CORRA Loans/Other
Alternative Currency
Loans/Letter of Credit Fees
Base Rate
Loans/Canadian
Prime Rate Loans
Commitment
Fee
5
≤ BB/Ba2/BB
1.75%
0.75%
0.275%
4
BB+/Ba1/BB+
1.50%
0.50%
0.225%
3
BBB-/Baa3/BBB-
1.25%
0.25%
0.175%
2
BBB/Baa2/BBB
1.125%
0.125%
0.125%
1
≥ BBB+/Baa1/BBB+
1.00%
0.05%
0.100%
The Applicable Rate (other than with respect
to the Term B Loan and any applicable Incremental Term Loan) in effect as of the Second Amendment Effective Date through the next
publicly announced change in the Corporate Rating shall be determined based upon Pricing Level 4; provided, however,
for purposes of determining the Applicable Rate for the Commitment Fee, such change (if any) shall not be made effective until the
first Business Day immediately following the date of delivery of financial statements delivered pursuant to Section 6.02(a) and
the related Compliance Certificate for the first full fiscal quarter of the Company ending after the Second Amendment Effective
Date. Thereafter, each change in the Applicable Rate resulting from a publicly announced change in the Corporate Rating shall be
effective, in the case of an upgrade, during the period commencing on the date of delivery by the Company to the Administrative
Agent of notice thereof pursuant to Section 6.03(h) and ending on the date immediately preceding the effective date
of the next such change and, in the case of a downgrade, during the period commencing on the date of the public announcement thereof
and ending on the date immediately preceding the effective date of the next such change. If the rating system of S&P,
Moody’s or Fitch shall change, or if any such rating agency shall cease to be in the business of providing Corporate Ratings,
the Company and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the
unavailability of Corporate Ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable
Rate shall be determined by reference to the Corporate Rating most recently in effect prior to such change or cessation.
5
“Applicable Time”
means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative
Currency as may be determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, to be necessary for timely
settlement on the relevant date in accordance with normal banking procedures in the place of payment.
“Applicant Borrower” has the meaning specified
in Section 2.15.
“Approved Fund”
means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
“Arrangers”
means (a) as of the Closing Date, each of the following in its capacity as a joint lead arranger and joint bookrunner: Bank of America
(or any of its designated affiliates), CIBC World Markets Corp. and Canadian Imperial Bank of Commerce (or any of its or their designated
affiliates), MUFG Bank, Ltd., Canada Branch (or any of its designated affiliates), and Crédit Agricole Corporate and Investment
Bank (Canada Branch) (or any of its designated affiliates); and (b) thereafter, any other Person designated as a lead arranger or
bookrunner on the cover page of any amendment, modification or supplement of this Agreement.
“Assignment and Assumption”
means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required
by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit F-1 or any
other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
“Attributable
Indebtedness” means, with respect to any Person on any date, (a) in respect of any capital lease of any Person, the
capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with the
Applicable Accounting Standard as in effect on such date (subject to Section 1.03(b) hereof), (b) in respect
of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear
on a balance sheet of such Person prepared as of such date in accordance with the Applicable Accounting Standard as in effect on
such date if such lease were accounted for as a capital lease and (c) in respect of any Securitization Transaction (other than
the Specified Receivables Purchase Agreement and any other securitization program that is not recorded as debt in accordance with
the Applicable Accounting Standard as in effect on such date), the amount of obligations outstanding on any date of determination
that would be characterized as principal if such Securitization Transaction had been structured as a secured loan rather than a
sale; provided that, for the avoidance of doubt, no obligations outstanding under the Specified Receivables Purchase
Agreement or under any other securitization program that is not recorded as debt in accordance with the Applicable Accounting
Standard as in effect on such date shall be deemed to be Attributable Indebtedness.
6
“Audited Financial
Statements” means the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended December 31,
2025, and the related consolidated statements of operations, comprehensive income, changes in equity and cash flows for such fiscal year
of the Company and its Subsidiaries, including the notes thereto.
“Authorization to
Share Insurance Information” means the authorization, duly executed by the applicable Loan Party or Loan Parties, in form and
substance reasonably acceptable to the Administrative Agent, authorizing the sharing of insurance information of the Loan Parties and
their Subsidiaries.
“Auto-Extension Letter of Credit” has
the meaning specified in Section 2.03(b)(iii).
“Auto-Reinstatement Letter of Credit”
has the meaning specified in Section 2.03(b)(iv).
“Availability Period”
means, with respect to the Revolving Commitments, the period from and including the Second Amendment Effective Date to the earliest of
(a) the Maturity Date applicable to Revolving Loans, Swing Line Loans and Letters of Credit (and the related L/C Obligations), (b) the
date of termination of the Aggregate Revolving Commitments pursuant to Section 2.07, and (c) the date of termination
of the commitment of each Lender to make Revolving Loans and of the obligation of each L/C Issuer to make L/C Credit Extensions pursuant
to Section 8.02.
“Available Amount”
means at any date of determination, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to, without
duplication:
(a) the
greater of (i) $500,000,000 and (ii) 7.5% of Consolidated Total Assets (determined as of the date of the applicable transaction
made in reliance on the Available Amount), plus
(b) commencing
on the first day of the fiscal quarter ending June 30, 2026:
(i) fifty
percent (50%) of Consolidated Net Income (in an amount, in any event, not less than zero and excluding any such proceeds that are reinvested
or required to be reinvested) during the period from the Second Amendment Effective Date to the end of the most recent fiscal quarter
preceding the date of any Investment, Restricted Payment or Junior Payment, in each case, using any portion of the Available Amount for
which financial statements have been (or were required to be) delivered pursuant to Section 6.01(a) or (b) (or,
in case such Consolidated Net Income is a deficit, minus 100% of such deficit), minus amounts previously utilized thereunder
for Investments, Restricted Payments or Junior Payments, plus
(ii) the
aggregate amount of Net Cash Proceeds received (other than Net Cash Proceeds received from a Subsidiary) from the issuance of or sale
of Equity Interests of, or a common cash capital contribution to, the Company after the Second Amendment Effective Date (other than the
proceeds of any (A) Disqualified Equity Interests, or (B) other equity issuance or capital contribution to the extent the proceeds
thereof are applied pursuant to any other provision of this Agreement), plus
7
(iii) the
proceeds of sales of Investments after the Second Amendment Effective Date made using the Available Amount (up to the amount of the original
Investment), plus
(iv) in
the event any Unrestricted Subsidiary has been re-designated as a Restricted Subsidiary or has been merged, consolidated or amalgamated
with or into, or transfers or conveys its assets to, or is liquidated into, the Company or a Restricted Subsidiary, in each case after
the Second Amendment Effective Date, the fair market value of the Investments of the Company and the Restricted Subsidiaries in such Unrestricted
Subsidiary as of the time of such re-designation, combination or transfer (or of the assets transferred or conveyed, as applicable) so
long as such Investments were originally made pursuant to Section 7.02(w); provided that, in each case, such amount
does not exceed the amount of such Investment made pursuant to such Section as such amount is reduced by any returns contemplated
by the following clause (v) prior to such time, plus
(v) returns,
profits, distributions and similar amounts received on Investments made using the Available Amount (up to the amount of the original Investment),
minus
(c) all
amounts previously utilized under the “Available Amount” for Investments, Restricted Payments and Junior Payments.
“Back-Up Indemnity Payment” has the meaning
specified in Section 3.01(c).
“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected
Financial Institution.
“Bail-In Legislation”
means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament
and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time
to time which is described in the EU Bail-In Legislation Schedule, (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), and (c) in relation to any state other than an EEA Member Country and
the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion
Powers contained in that law or regulation.
“Bank of America” means Bank of America,
N.A. and its successors.
“Bankruptcy Code”
means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq.).
“Base Rate”
means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2
of one percent (0.50%), (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America
as its “prime rate,” and (c) Term SOFR plus one percent (1.00%); provided that if the Base Rate shall
be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank
of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change
in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement
of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 or Section 3.07
hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without
reference to clause (c) above.
8
“Base Rate Loan”
means a Loan that bears interest based on the Base Rate. All Base Rate Loans are only available for Loans denominated in Dollars.
“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 Section 3(3) of ERISA) that is subject to Title
I of ERISA, (b) a “plan” as defined in 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”.
“Blocking Law”
means (a) any provision of Council Regulation (EC) No 2271/1996 of 22 November 1996 (or any law or regulation implementing such
Regulation in any member state of the European Union), (b) section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung),
or (c) any provision of Council Regulation (EC) No 2271/1996 of 22 November 1996, as it forms part of domestic law of the United
Kingdom.
“BofA Securities” means BofA Securities, Inc.
(or any of its designated affiliates).
“Borrower”
and “Borrowers” each has the meaning specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning specified
in Section 6.02.
“Borrowing”
means a borrowing consisting of simultaneous Loans of the same Type, in the same currency, and, in the case of Term SOFR Loans or Alternative
Currency Term Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
“Business Day”
means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent’s Office is located; provided that:
(a) [reserved];
(b) if
such day relates to any interest rate settings as to an Alternative Currency Loan denominated in Euro, any fundings, disbursements, settlements
and payments in Euro in respect of any such Alternative Currency Loan, or any other dealings in Euro to be carried out pursuant to this
Agreement in respect of any such Alternative Currency Loan, means any such day that is also a TARGET Day;
(c) when
used in connection with any fundings, disbursements, settlements, payments and interest rate settings as to a Canadian Prime Rate Loan
or any other dealings in Canadian Dollars (including, for the avoidance of doubt, any other Loans denominated in Canadian Dollars) to
be carried out pursuant to this Agreement or any of the other Loan Documents, means any such day other than a day on which banking institutions
in Toronto, Ontario are authorized by law to close;
9
(d) if
such day relates to any interest rate settings as to an Alternative Currency Loan denominated in (i) Sterling, means a day other
than a day banks are closed for general business in London, including because such day is a Saturday, a Sunday or a legal holiday under
the laws of the United Kingdom; or (ii) a currency other than Euro, Canadian Dollars or Sterling, means any such day on which dealings
in deposits in the relevant currency are conducted by and between banks in the London or other applicable interbank market for such currency;
and
(e) if
such day relates to any fundings, disbursements, settlements and payments in a currency other than Euro in respect of an Alternative Currency
Loan denominated in a currency other than Euro, or any other dealings in any currency other than Euro to be carried out pursuant to this
Agreement in respect of any such Alternative Currency Loan (other than any interest rate settings), means any such day on which banks
are open for foreign exchange business in the principal financial center of the country of such currency.
“Call Protection
Period” means, with respect to the Term B Loan, the period from the Closing Date to, and including, the date that is six (6) months
after the Closing Date.
“Canadian AML Acts”
means applicable Canadian law regarding anti-money laundering, anti-terrorist financing, government sanction and “know your client”
matters, including the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada).
“Canadian Defined
Benefit Pension Plan” means a Canadian Pension Plan that contains or has ever contained a “defined benefit provision”
as such term is defined in Section 147.1(1) of the Income Tax Act (Canada).
“Canadian Dollar” and “CAD”
means the lawful currency of Canada.
“Canadian Dollar
Sublimit” means an amount equal to the lesser of (a) $300,000,000 and (b) the Aggregate Revolving Commitments. The
Canadian Dollar Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“Canadian Pension
Plan” means a pension plan or plan that is subject to applicable pension benefits legislation in any jurisdiction of Canada
and that is organized and administered to provide pensions, pension benefits or retirement benefits for employees and former employees
of any Loan Party or any Subsidiary thereof.
“Canadian Prime
Rate” means, for any day a fluctuating rate of interest per annum equal to the greater of (a) the per annum rate of interest
quoted or established as the “prime rate” of the Administrative Agent which it quotes or establishes for such day as its
reference rate of interest in order to determine interest rates for commercial loans in Canadian Dollars in Canada to its Canadian borrowers;
and (b) the Term CORRA Rate for a one (1) month term that is two (2) Business Days prior to such date plus the
Term CORRA Adjustment plus 1/2 of one percent (0.50%) per annum, adjusted automatically with each quoted
or established change in such rate, all without the necessity of any notice to any Borrower or any other Person; provided that
if the Canadian Prime Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. Such “prime
rate” referenced in clause (a) above is based on various factors including cost and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in the prime rate shall take effect at the opening of business on the day specified in the public announcement of such
change.
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“Canadian Prime Rate
Loan” means a Revolving Loan that bears interest based on the Canadian Prime Rate. All Canadian Prime Rate Loans are only available
to the Canadian Borrowers and shall be denominated in Canadian Dollars.
“Canadian Sanctions
List” means the list of names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of
the Criminal Code (Canada), the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and/or the United
Nations Al-Qaida and Taliban Regulations and/or the Special Economic Measures Act (Canada).
“Canadian Security
Agreement” means that certain Amended and Restated Canadian Security and Pledge Agreement, dated as of the Closing Date executed
in favor of the Administrative Agent, for the benefit of the Secured Parties, by the Company and certain Non-U.S. Obligors.
“Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuers or the Lenders,
as collateral for L/C Obligations, or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit
account balances or, if the Administrative Agent and the applicable L/C Issuer(s) shall agree in their sole discretion, other credit
support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable
L/C Issuer(s). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of
such cash collateral and other credit support.
“Cash Equivalents” means, at any date:
(a) securities
issued or directly and fully guaranteed or insured by the United States or, in the case of a Non-U.S. Subsidiary, readily marketable obligations
issued or directly and fully guaranteed or insured by the government of the country of such Non-U.S. Subsidiary, or any agency or instrumentality
thereof (provided that the full faith and credit of the United States or, in the case of a Non-U.S. Subsidiary, the government
of the country of such Non-U.S. Subsidiary, is pledged in support thereof), having maturities of not more than three hundred sixty (360)
days from the date of acquisition;
(b) (i) with
respect to any U.S. Borrower or any U.S. Subsidiary, Dollar denominated time deposits, certificates of deposit and bankers’ acceptances
of (A) any Lender under the Revolving Facility, (B) any domestic commercial bank of recognized standing having capital and
surplus in excess of $500,000,000 or (C) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent
thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank being a “U.S. Approved Bank”)
and (ii) with respect to the Company or any Non-U.S. Subsidiary, time deposits, certificates of deposit and bankers’ acceptances
denominated in (x) Dollars, (y) the currency of the country in which such Non-U.S. Subsidiary maintains its chief executive
office and principal place of business; provided such country is a member of the Organization for Economic Cooperation and Development
or (z) such currency acceptable to the Administrative Agent in its sole discretion, in each case, of (A) any Lender under the
Revolving Facility, (B) any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000,
(C) a bank having capital and surplus in excess of $500,000,000 formed under any state, commonwealth, territory, province or similar
political subdivision of the country in which such Non-U.S. Subsidiary maintains its chief executive office and principal place of business;
provided such country is a member of the Organization for Economic Cooperation and Development, (D) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent
thereof or (E) a bank or other financial institution acceptable to the Administrative Agent in its sole discretion (any such bank
being a “Non-U.S. Approved Bank” and together with any U.S. Approved Bank, each an “Approved Bank”),
in each case with maturities of not more than two hundred seventy (270) days from the date of acquisition;
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(c) commercial
paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued
by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof)
or better by Moody’s and maturing within one hundred eighty (180) days of the date of acquisition;
(d) repurchase
agreements entered into by any Person with a bank or trust company (including any Lender under the Revolving Facility) or recognized securities
dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States
in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least one hundred percent (100%) of the amount of the repurchase obligations;
(e) securities
with maturities of one (1) year or less from the date of acquisition thereof issued or fully guaranteed by (i) any state, commonwealth
or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory, the
securities of any such state, commonwealth or territory being rated at least “Prime-1” (or the then equivalent grade) by Moody’s
or at least “A-1” (or the then equivalent grade) by S&P or (ii) solely with respect to any Non-U.S. Subsidiary, any
state, commonwealth, territory, province or similar political subdivision of the country in which such Non-U.S. Subsidiary maintains its
chief executive office and principal place of business; provided such country is a member of the Organization for Economic Cooperation
and Development; and
(f) investments,
classified in accordance with the Applicable Accounting Standard as in effect on such date as current assets, in money market investment
programs registered under the Investment Company Act of 1940 which have the highest rating obtainable from either Moody’s or S&P
and the portfolios of which substantially all of the Investments in such portfolios are of the character described in the foregoing clauses
(a) through (d).
“Cash Management
Agreement” means any agreement that is not prohibited by the terms hereof to provide treasury or cash management services, including
deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer,
automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation
and reporting and trade finance services and other cash management services.
“Cash Management
Bank” means any Person in its capacity as a party to a Cash Management Agreement that, (a) at the time it enters into
a Cash Management Agreement with a Loan Party or any Subsidiary, is a Lender or an Affiliate of a Lender, or (b) at the time it
(or its Affiliate) becomes a Lender, is a party to a Cash Management Agreement with a Loan Party or any Subsidiary, in each case in its
capacity as a party to such Cash Management Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceased
to be a Lender); provided, however, that for any of the foregoing to be included as a “Secured Cash Management Agreement”
on any date of determination by the Administrative Agent, the applicable Cash Management Bank (other than the Administrative Agent or
an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to
such date of determination.
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“CFC” means
any Subsidiary that is a controlled foreign corporation within the meaning Section 957 of the Code and that is owned, directly or
indirectly, by a U.S. Subsidiary.
“CFC Holdco”
means (a) any direct or indirect U.S. Subsidiary that has no material assets other than the Equity Interests of one or more CFCs
and (b) any direct or indirect U.S. Subsidiary that has no material assets other than the Equity Interests or Indebtedness of one
or more other U.S. Subsidiaries of the type referred to in the immediately preceding clause (a).
“Change in Law”
means the occurrence, after the Closing Date, 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 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, Canada or foreign regulatory authorities,
in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted,
adopted or issued.
“Change of Control” means an event or
series of events by which:
(a) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership”
of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the
passage of time (such right, an “option right”)), directly or indirectly, of equity securities of the Company carrying
thirty-five percent (35%) or more of the voting power of all outstanding equity securities of the Company on a fully-diluted basis (and
taking into account all such securities that such person or group has the right to acquire pursuant to any option right);
(b) during
any period of twenty-four (24) consecutive months a majority of the members of the board of directors or other equivalent governing body
of the Company cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred
to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority
of that board or equivalent governing body; or
(c) the
Company fails to own and control, directly or indirectly, one hundred percent (100%) of the outstanding Equity Interests (other than (i) directors’
qualifying shares and (ii) shares issued to foreign nationals to the extent required by applicable Law) of each other Borrower.
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“Closing Date” means June 20, 2024
“CME” means CME Group Benchmark Administration
Limited.
“Code” means the Internal Revenue Code
of 1986.
“Collateral”
means a collective reference to all property with respect to which Liens in favor of the Administrative Agent are purported to be granted
pursuant to and in accordance with the Collateral Documents.
“Collateral Documents”
means a collective reference to the Security Agreements, each Joinder Agreement and all other security or pledge agreements or documents
as may be executed and delivered by any Loan Party pursuant to the terms of Section 6.15 or any of the Loan Documents.
“Collateral Release” has the meaning specified
in Section 6.22.
“Collateral Release Conditions” has the
meaning specified in Section 6.22.
“Collateral Release Date” has the meaning
specified in Section 6.22.
“Commitment”
means, as to each Lender, the Revolving Commitment of such Lender, the Term A Loan Commitment of such Lender and/or the Term B Loan Commitment
of such Lender and shall include, as the context requires, any unfunded commitment of such Lender to fund any portion of an Incremental
Term Loan.
“Commodity Exchange Act” means the Commodity
Exchange Act (7 U.S.C. Section 1 et seq.).
“Communication”
means this Agreement, any Loan Document and any document, amendment, approval, consent, information, notice, certificate, request, statement,
disclosure or authorization related to any Loan Document.
“Company” has the meaning specified in
the introductory paragraph hereto.
“Compliance Certificate” means a certificate
substantially in the form of Exhibit E.
“Conforming Changes”
means, with respect to the use, administration of or any conventions associated with SOFR, Term SOFR, SONIA, EURIBOR, CORRA, Term CORRA
or any proposed Successor Rate for an Agreed Currency, as applicable, any conforming changes to the definitions of “Base Rate”,
“SOFR”, “Term SOFR”, “SONIA”, “EURIBOR”, “CORRA”, “Term CORRA”,
“Canadian Prime Rate” and “Interest Period”, timing and frequency of determining rates and making payments of
interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business
Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation
notices and length of lookback periods and the day basis for calculating interest for an Agreed Currency listed on Schedule 2.11)
as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such applicable rate(s) and
to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice for such Agreed
Currency (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible
or that no market practice for the administration of such rate for such Agreed Currency exists, in such other manner of administration
as the Administrative Agent determines in consultation with the Company is reasonably necessary in connection with the administration
of this Agreement and any other Loan Document).
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“Connection Income
Taxes” means Other Connection Taxes that are imposed on or measured by net earnings (however denominated) or that are franchise
Taxes or branch profits Taxes.
“Consolidated Current
Assets” means, as of any date of determination, all assets of the Company and its Restricted Subsidiaries (other than cash and
Cash Equivalents) that would, in accordance with the Applicable Accounting Standard as in effect on such date, be classified on a consolidated
balance sheet of the Company as current assets as of such date.
“Consolidated Current
Liabilities” means, as of any date of determination, all liabilities (without duplication) of the Company and its Restricted
Subsidiaries that would, in accordance with the Applicable Accounting Standard as in effect on such date, be classified on a consolidated
balance sheet of the Company and its Restricted Subsidiaries as current liabilities as of such date; provided, however,
that Consolidated Current Liabilities shall not include (a) current maturities of any long-term Indebtedness, (b) outstanding
revolving loans and (c) the current portion of any other long-term liabilities.
“Consolidated EBITDA”
means, for any period, for the Company and its Restricted Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following without duplication and to the extent deducted (and not added back) in calculating
such Consolidated Net Income (other than clause (vi) below): (i) Consolidated Interest Charges for such period (other
than the implicit financing costs in respect of Synthetic Lease Obligations), (ii) the provision for federal, state, local and foreign
Taxes by the Company and its Restricted Subsidiaries for such period, (iii) depreciation and amortization expense for such period,
(iv) non-cash charges and purchase accounting deductions reducing such Consolidated Net Income, including but not limited to (A) any
write-offs or write-downs, (B) losses on sales, disposals or abandonment of, or any impairment charges or asset write-offs related
to, intangible assets, long-lived assets and investments in debt and equity securities and (C) other non-cash charges, non-cash
expenses or non-cash losses; provided that notwithstanding the foregoing, nothing contained in this clause (iv) shall
exclude from the calculation of Consolidated EBITDA (1) any non-cash charge that is expected to be paid in cash in any future period
or (2) any write-down of accounts receivable, (v) unusual or non-recurring expenses and charges (including, for the avoidance
of doubt, one-time charges in respect of bonus payments made in connection with any Acquisition) for such period, (vi) the amount
of synergies and cost savings projected by the Company in good faith to be realized as a result of any Permitted Acquisition so long
as (A) such synergies and costs savings are (I) reasonably identifiable and factually supportable and (II) reasonably
attributable to the Permitted Acquisition specified and reasonably anticipated to result therefrom, and (B) the benefits resulting
from such Permitted Acquisition are reasonably expected to be realized within twenty-four (24) months of the closing date of such Permitted
Acquisition; provided that the aggregate amount added pursuant to the foregoing clauses (v) and (vi) shall
not exceed twenty-five percent (25%) of Consolidated EBITDA (calculated prior to giving effect to any such adjustment made pursuant to
the foregoing clauses (v) or (vi)) for such period and (vii) the amount of any costs, charges, accruals, reserves
or expenses attributable to the undertaking and/or implementation of cost savings initiatives, operating expense reductions, operating
improvements, product margin synergies and product cost and other synergies and similar initiatives, integration, transition, reconstruction,
decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses, restructuring costs (including those related
to tax restructurings), charges, accruals, reserves or expenses attributable to the undertaking and/or implementation of cost savings
initiatives, operating expense reductions, business optimization and other restructuring costs, charges, accruals, reserves and expenses
(including, but not limited to, costs related to the opening, pre-opening, closure, relocation and/or consolidation of locations, recruitment
expenses (including headhunter fees and relocation expenses), severance payments, and professional and consulting fees incurred in connection
with any of the foregoing); provided that the aggregate amount added pursuant to this clause (vii) shall not exceed
$50,000,000 per annum, minus (b) the following without duplication and to the extent included (and not deducted) in calculating
such Consolidated Net Income: (i) federal, state, local and foreign Tax recoveries of the Company and its Restricted Subsidiaries
for such period, (ii) non-cash items (excluding (A) any non-cash recovery that is expected to be received in cash in any future
period and (B) any reversal of a write-down of current assets) increasing Consolidated Net Income for such period and (iii) unusual
or non-recurring gains for such period incurred outside the ordinary course of business; provided that in the event of the acquisition
by the Company or a Restricted Subsidiary of a newly acquired Restricted Subsidiary or operation (as such term is used in the definition
of “Pro Forma Basis”), Consolidated EBITDA will include the Target EBITDA of the newly acquired Restricted Subsidiary or
operation on a Pro Forma Basis in accordance with the terms of the definition of “Pro Forma Basis”; provided, further,
that for the avoidance of doubt, all amounts herein in respect of stock-based compensation by the Company or any Restricted Subsidiary
are accounted for on a cash basis.
15
“Consolidated Excess
Cash Flow” means, for any period for the Company and its Restricted Subsidiaries on a consolidated basis, an amount (if positive)
equal to Consolidated Net Income for such period plus (a) the following without duplication: (i) an amount equal to any
net decrease in Consolidated Working Capital from the first day to the last day of such period, (ii) to the extent not included in
Consolidated Net Income, any cash gains and income (actually received in cash) during such period and (iii) the amount of all non-cash
losses, charges and expenses deducted in calculating Consolidated Net Income including for depreciation and amortization for such period,
minus (b) the following without duplication: (i) Consolidated Interest Charges actually paid in cash for such period,
(ii) cash taxes paid by the Company and its Restricted Subsidiaries during such period, (iii) all scheduled payments of principal
on Consolidated Funded Indebtedness (including, without limitation, the Term Loans) actually paid in such period, (iv) an amount
equal to any net increase in Consolidated Working Capital from the first day to the last day of such period, (v) the amount of (A) any
non-cash gains and income included in calculating Consolidated Net Income for such period and (B) all cash expenses, charges and
losses excluded in arriving at such Consolidated Net Income, in each case, to the extent not financed with the proceeds of long-term,
non-revolving Indebtedness, (vi) any required up-front cash payments in respect of Swap Contracts to the extent not financed with
the proceeds of long-term, non-revolving Indebtedness and not deducted in arriving at such Consolidated Net Income, (vii) any cash
payments actually made during such period that represent a non-cash charge from a previous period and deducted in calculating Consolidated
Excess Cash Flow in a previous period, (viii) the aggregate amount of expenditures actually made by the Company or any of its Restricted
Subsidiaries in cash during such period for the payment of financing fees, rent and pension and other retirement benefits to the extent
that such expenditures are not from such period, (ix) capital expenditures actually paid in cash by the Company or any Restricted
Subsidiary, (x) the aggregate amount actually paid in cash by the Company and its Restricted Subsidiaries on account of Permitted
Investments, (xi) to the extent not deducted in the calculation of Consolidated Net Income for such period, the amount of Restricted
Payments pursuant to Section 7.06(d) and (f) (or otherwise consented to by the Required Lenders) made in
cash and (xii) without duplication, the aggregate amount of cash payments made in respect of finance leases for such period; provided
that in the case of each of the preceding clauses (b)(viii) through (b)(xi), such amount shall be deducted only to
the extent any such amount is (I) paid (1) during such period (other than any such amount paid during such period but prior
to the Consolidated Excess Cash Flow Prepayment Date for the immediately preceding period and previously deducted from Consolidated Excess
Cash Flow for the immediately preceding period) or (2) following the end of such period but prior to the Consolidated Excess Cash
Flow Prepayment Date for such period and, upon the election of the Company by written notice delivered to the Administrative Agent prior
to the Consolidated Excess Cash Flow Prepayment Date for such period, deducted from Consolidated Excess Cash Flow for such period and
(II) not financed with long-term, non-revolving Indebtedness.
“Consolidated Excess
Cash Flow Prepayment Date” has the meaning specified in Section 2.06(b)(iii).
16
“Consolidated First Lien
Net Leverage Ratio” means, as of any date of determination, the ratio of (a) (i) Consolidated First Lien Indebtedness
as of such date, minus (ii) Qualified Cash as of such date, to
(b) Consolidated EBITDA for the period of the
four (4) fiscal quarters most recently ended on or prior to such date.
“Consolidated First
Lien Indebtedness” means, as of any date of determination, for the Company and its Restricted Subsidiaries on a consolidated
basis, Consolidated Funded Indebtedness that is secured by a Lien on Collateral that is not contractually subordinated to the Liens on
such Collateral securing the Obligations. For the avoidance of doubt, Consolidated First Lien Indebtedness shall not include Attributable
Indebtedness under any capital lease other than those that are secured by the Collateral on an equal priority or senior basis with the
Liens on the Collateral securing the Obligations.
“Consolidated Funded
Indebtedness” means, as of any date of determination, for the Company and its Restricted Subsidiaries on a consolidated basis,
the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase
money Indebtedness, (c) all obligations (whether direct or contingent) arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations in respect of the deferred
purchase price of property or services (other than trade accounts payable in the ordinary course of business), (e) all Attributable
Indebtedness (including Attributable Indebtedness in respect of capital leases), (f) without duplication, all Guarantees with respect
to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the
Company or any Restricted Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above
of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the
Company or a Restricted Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to
the Company or such Restricted Subsidiary.
“Consolidated Interest
Charges” means, for any period, for the Company and its Restricted Subsidiaries on a consolidated basis, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses of the Company and its Restricted Subsidiaries in connection
with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with the Applicable Accounting Standard as in effect for such period, and (b) the portion
of rent expense of the Company and its Restricted Subsidiaries with respect to such period under capital leases that is treated as interest
in accordance with the Applicable Accounting Standard as in effect for such period.
“Consolidated Interest
Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of the four
(4) prior fiscal quarters ending on such date to
(b) Consolidated Interest Charges for such
period.
“Consolidated Net
Income” means, for any period, for the Company and its Restricted Subsidiaries on a consolidated basis, the net earnings of
the Company and its Restricted Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period.
“Consolidated Secured
Indebtedness” means, as of any date of determination, for the Company and its Restricted Subsidiaries on a consolidated basis,
all Consolidated Funded Indebtedness secured by Liens.
17
“Consolidated Secured
Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Secured Indebtedness as of such date
to (b) Consolidated EBITDA for the period of the four (4) fiscal quarters most recently ended.
“Consolidated Secured Net
Leverage Ratio” means, as of any date of determination, the ratio of (a) (i) Consolidated Secured Indebtedness as of
such date, minus (ii) Qualified Cash as of such date, to
(b) Consolidated EBITDA for the period of the
four (4) fiscal quarters most recently ended.
“Consolidated Total
Assets” means, as of any date of determination with respect to the Company and its Restricted Subsidiaries on a consolidated
basis, the book value of total assets, as determined in accordance with the Applicable Accounting Standard as in effect on such date and
set forth on the most recent financial statements delivered to the Administrative Agent pursuant to Section 6.01(a) or
(b).
“Consolidated Total
Net Leverage Ratio” means, as of any date of determination, the ratio of (a) the total of (i) Consolidated Funded
Indebtedness as of such date, minus (ii) Qualified Cash as of such date, not to exceed $250,000,000, to (b) Consolidated
EBITDA for the period of the four (4) fiscal quarters most recently ended on or prior to such date.
“Consolidated Working
Capital” means, as of any date of determination, Consolidated Current Assets as of such date minus Consolidated Current
Liabilities as of such date; provided that there shall be excluded (a) the effect of reclassification during such period between
current assets and long term assets and current liabilities and long term liabilities (with a corresponding restatement of the prior period
to give effect to such reclassification), (b) the effect of any Disposition of any Person, facility or line of business or acquisition
of any Person, facility or line of business during such period, (c) the effect of any fluctuations in the amount of accrued and contingent
obligations under any Swap Contract, and (d) the application of purchase or recapitalization accounting.
“Contractual Obligation”
means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its property is bound.
“Control”
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. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another
Person if such other Person possesses, directly or indirectly, power to vote fifteen percent (15%) or more of the securities having ordinary
voting power for the election of directors, managing general partners or the equivalent.
“Controlled Account”
means each deposit account and securities account that is subject to an account control agreement and/or blocked account agreement in
form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer.
“Corporate Rating”
means, as of any date of determination, the public corporate family rating of the Company as determined by Moody’s, the public
corporate credit rating of the Company as determined by S&P and/or the public corporate credit rating of the Company as determined
by Fitch, as applicable; provided, that: (a) if the Company has all three (3) Corporate Ratings, (i) if such Corporate
Ratings issued by the foregoing rating agencies fall within the same pricing level set forth in the definition of “Applicable Rate”
(each, a “Pricing Level”), then the Pricing Level for such Corporate Ratings shall apply, (ii) if two (2) of
the three (3) respective Corporate Ratings issued by the foregoing rating agencies fall within the same Pricing Level, then the
Pricing Level for such Corporate Ratings shall apply, and (iii) if the respective Corporate Ratings issued by the foregoing rating agencies
all differ, then the Pricing Level for the middle level of such Corporate Ratings shall apply; (b) if the Company has only two (2) Corporate
Ratings, (i) if such Corporate Ratings issued by the two (2) rating agencies fall within the same Pricing Level, then the Pricing
Level for such Corporate Ratings shall apply, (ii) if such Corporate Ratings issued by the two (2) rating agencies differ by
one (1) Pricing Level, then the Pricing Level for the higher of such Corporate Ratings shall apply, and (iii) if such Corporate
Ratings issued by the two (2) rating agencies differ by more than one (1) Pricing Level, then the Pricing Level that is one
(1) level lower than the Pricing Level of the higher Corporate Rating shall apply; (c) if the Company has only one Corporate
Rating, then the Pricing Level for such Corporate Rating shall apply; and (d) if the Company does not have any Corporate Rating,
Pricing Level 5 shall apply. For purposes of this definition, it is understood and agreed that the Corporate Rating for Pricing Level
1 is the highest Corporate Rating and the Corporate Rating for Pricing Level 5 is the lowest Corporate Rating. The Corporate Rating in
effect at any date is the Corporate Rating that is in effect at the close of business on such date.
18
“CORRA”
means the Canadian Overnight Repo Rate Average administered and published by the Bank of Canada (or any successor administrator); provided,
that, if CORRA shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Corresponding Debt” has the meaning specified
in Section 10.24(a).
“Covered Entity” has the meaning specified
in Section 10.23(b).
“Credit Extension”
means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Credit Parties” means, collectively,
each Lender, each L/C Issuer and the Swing Line Lender.
“Daily Simple SOFR”
means, with respect to any applicable determination date, SOFR published on such date on the Federal Reserve Bank of New York’s
website (or any successor source).
“Daily Simple SOFR Loan” means a Loan
that bears interest based on Daily Simple SOFR.
“Debt Issuance”
means the issuance by any Loan Party of any Indebtedness other than Indebtedness permitted under Section 7.03.
“Debtor Relief Laws”
means the Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-Up
and Restructuring Act (Canada), the Insolvency Act 1986 of the United Kingdom, the Singapore IRDA and all other liquidation, winding-up,
administration, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, examinership, rescue process, or similar debtor relief Laws of the United States, Canada, England and Wales, or other
applicable jurisdictions (including any applicable foreign jurisdiction) from time to time in effect and affecting the rights of creditors
generally.
“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) with respect to any Obligation for which a rate is specified, a rate per annum equal to two percent
(2%) in excess of the rate otherwise applicable thereto and (b) with respect to any Obligation for which a rate is not
specified or available, a rate per annum equal to the Base Rate plus the Applicable Rate for Revolving Loans that are Base
Rate Loans plus two percent (2%), in each case, to the fullest extent permitted by applicable Law.
19
“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 (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative
Agent and the Company in writing that such failure is the result of such Lender’s determination that one or more conditions precedent
to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing)
has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer, the Swing Line Lender or any other Lender any other
amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within
two (2) Business Days of the date when due, (b) has notified the Company, the Administrative Agent, any L/C Issuer or the Swing
Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that
effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such
position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with
any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed,
within three (3) Business Days after written request by the Administrative Agent or the Company, to confirm in writing to the Administrative
Agent and the Company that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease
to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent
and the Company), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under
any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit
of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance
Corporation, the Canada Deposit Insurance Corporation or any other state, provincial 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 (unless such Lender is an agent for all purposes of His Majesty in right of Canada) from the enforcement of judgments
or writs of attachment on its assets (except for EDC) or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow
or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting
Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall
be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.18(b))
as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by
the Administrative Agent to the Company, the L/C Issuers, the Swing Line Lender and each other Lender promptly following such determination.
“Designated Borrower” has the meaning
specified in the introductory paragraph hereto.
“Designated Borrower Notice” has the meaning
specified in Section 2.15.
“Designated Borrower
Request and Assumption Agreement” has the meaning specified in Section 2.15.
“Designated Borrower Requirements” has
the meaning specified in Section 2.15.
“Designated Jurisdiction”
means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
20
“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 Reserves” has the meaning
specified in the definition of “Net Cash Proceeds”.
“Disqualified Equity
Interests” means Equity Interests of any Person that (a) by their terms or upon the occurrence of any event (other than
as a result of a change of control, asset sale event or casualty or condemnation event so long as any rights of the holders thereof upon
the occurrence of a change of control, asset sale event or casualty or condemnation event shall be subject to the prior repayment in full
of all Loans and all other Obligations (other than contingent indemnification obligations for which no claim has been asserted)) (i) are
required to be redeemed or are redeemable at the option of the holder on or prior to the day that is ninety-one (91) days after the later
of (A) the latest Maturity Date and (B) the maturity date for any Incremental Term Loan (determined as of the date of issuance
of such Equity Interests), for consideration other than Qualified Equity Interests of such Person or (ii) are convertible at the
option of the holder into Disqualified Equity Interests of such Person or exchangeable for Indebtedness or (b) require (or permit
at the option of the holder) the payment of any dividend, interest, sinking fund or other similar payment (other than the accrual of such
obligations) on or prior to the day that is ninety-one (91) days after the later of (A) the latest Maturity Date and (B) the
maturity date for any Incremental Term Loan (determined as of the date of issuance of such Equity Interests) (other than payments made
solely in Qualified Equity Interests of such Person).
“Disqualified Institution”
means, on any date, (a) any Person set forth on Schedule 10.06 and (b) any other Person that is a competitor of the Company
or any of its Subsidiaries, which Person has been designated by the Company as a “Disqualified Institution” by written notice
to the Administrative Agent and the Lenders (by posting such notice to the Platform) not less than two (2) Business Days prior to
such date; provided, that, the foregoing shall not apply to retroactively disqualify any Person that has previously acquired
an assignment in the Loans or Commitments under this Agreement to the extent that any such Person was not a Disqualified Institution at
the time of the applicable assignment; provided, further, that “Disqualified Institutions” shall exclude any
Person that the Company has designated as no longer being a “Disqualified Institution” by written notice delivered to the
Administrative Agent and the Lenders from time to time.
“Dollar” and “$” mean lawful
money of the United States.
“Dollar Equivalent”
means, for any amount, at the time of determination thereof, (a) if such amount is expressed in Dollars, such amount, (b) if
such amount is expressed in an Alternative Currency, the equivalent of such amount in Dollars determined by using the rate of exchange
for the purchase of Dollars with the Alternative Currency last provided (either by publication or otherwise provided to the Administrative
Agent or the applicable L/C Issuer, as applicable) by the applicable Bloomberg source (or such other publicly available source for displaying
exchange rates) on the date that is two (2) Business Days immediately preceding the date of determination (or if such service ceases
to be available or ceases to provide such rate of exchange, the equivalent of such amount in Dollars as determined by the Administrative
Agent or the applicable L/C Issuer, as applicable, using any reasonable method of determination it deems appropriate in its sole discretion)
and (c) if such amount is denominated in any other currency, the equivalent of such amount in Dollars as determined by the Administrative
Agent or the applicable L/C Issuer, as applicable, using any reasonable method of determination it deems appropriate in its sole discretion.
Any determination by the Administrative Agent or the applicable L/C Issuer pursuant to clauses (b) or (c) above shall
be conclusive absent manifest error.
21
“Domestic U.S. Security
Agreement” means the Amended and Restated U.S. Security and Pledge Agreement, dated as of the Closing Date, executed in favor
of the Administrative Agent, for the benefit of the Secured Parties, by the Initial U.S. Borrower and the other Loan Parties that are
U.S. Subsidiaries (other than any Specified U.S. Obligors).
“DQ List” has the meaning specified in
Section 10.06(h)(iv).
“EDC” means
Export Development Canada, a corporation established by an Act of the Parliament of Canada.
“EEA Financial Institution”
means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of
an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in
clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision
with its parent.
“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”
means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Record”
and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may
be amended from time to time.
“Eligible Assignee”
means any Person that meets the requirements to be an assignee under Section 10.06(b) (subject to such consents, if any,
as may be required under Section 10.06(b)(iii)). For the avoidance of doubt, any Disqualified Institution is subject to Section 10.06(h).
“Eligible Currency”
means any lawful currency other than Dollars that is readily available, freely transferable and convertible into Dollars in the international
interbank market available to the Revolving Lenders in such market and as to which a Dollar Equivalent may be readily calculated. If,
after the designation by the Revolving Lenders or the applicable L/C Issuer, as applicable, of any currency as an Alternative Currency,
any change in currency controls or exchange regulations or any change in the national or international financial, political or economic
conditions are imposed in the country in which such currency is issued, result in, in the reasonable opinion of the Administrative Agent
or the Required Revolving Lenders (in the case of any Revolving Loans to be denominated in an Alternative Currency) or the applicable
L/C Issuer (in the case of any Letter of Credit to be denominated in an Alternative Currency), (a) such currency no longer being
readily available, freely transferable and convertible into Dollars, (b) a Dollar Equivalent is no longer readily calculable with
respect to such currency, (c) providing such currency is impracticable for the Revolving Lenders or (d) no longer a currency
in which the Required Revolving Lenders are willing to make such Credit Extensions (each of clauses (a), (b), (c),
and (d) a “Disqualifying Event”), then the Administrative Agent shall promptly notify the Revolving Lenders,
the L/C Issuers and the Company, and such country’s currency shall no longer be an Alternative Currency until such time as the Disqualifying
Event(s) no longer exist. Within five (5) Business Days after receipt of such notice from the Administrative Agent, the applicable
Borrowers shall repay all Revolving Loans denominated in such currency to which the Disqualifying Event applies or convert such Revolving
Loans into the Dollar Equivalent of Loans in Dollars, subject to the other terms contained herein.
22
“English Guarantor” has the meaning specified
in Section 11.11.
“Environmental Laws”
means any and all federal, state, provincial, territorial, local, foreign and other applicable statutes, laws, regulations, ordinances,
technical standards, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment 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 Company, any other Loan Party or any of their respective 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.
“Environmental Permit”
means any permit, approval, identification number, license or other authorization required under any Environmental Law.
“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.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control with the Company 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 Company 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 Company or any ERISA Affiliate from a Multiemployer Plan; (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, 431 and 432 of the Code or Sections 303, 304 and 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 Company or any ERISA Affiliate.
23
“ESG” has the meaning specified in Section 2.21.
“ESG Amendment” has the meaning specified
in Section 2.21.
“ESG Pricing Provisions” has the meaning
specified in Section 2.21.
“EU Bail-In Legislation
Schedule” means the document described as such and published by the Loan Market Association (or any successor person), as in
effect from time to time.
“EU Insolvency Regulation”
means Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).
“EURIBOR” has the meaning specified in
the definition of “Alternative Currency Term Rate”.
“Euro” and “€” mean the
single currency of the Participating Member States.
“Event of Default” has the meaning specified
in Section 8.01.
“Excluded Accounts”
means (a) any account used solely by any Loan Party to disburse payroll and benefits, (b) any fiduciary accounts used solely
to administer benefit plans or pay withholding taxes and (c) any account used solely to hold funds in trust for third parties.
24
“Excluded Property”
means, with respect to any Loan Party, (a) any owned or leased real property, (b) any Excluded Account, (c) any IP Rights
for which a perfected Lien thereon is not effected either by filing of a UCC or a PPSA financing statement or by appropriate evidence
of such Lien being filed in the United States Copyright Office, the United States Patent and Trademark Office, the Canadian Intellectual
Property Office or a comparable filing office in a foreign jurisdiction, (d) solely to the extent such Loan Party is a U.S. Subsidiary
or is organized under any jurisdiction of Canada, any personal property (other than personal property described in clause (c) above
and Equity Interests of any Subsidiary to the extent required to be pledged to secure the Obligations pursuant to Section 6.15)
for which the attachment or perfection of a Lien thereon is not governed by the UCC or the PPSA, (e) the Equity Interests of any
Subsidiary to the extent not required to be pledged to secure the Obligations pursuant to Section 6.15, (f) any property
which, subject to the terms of Section 7.09, is subject to a Lien of the type described in Section 7.01(i) pursuant
to documents which prohibit such Loan Party from granting any other Liens in such property, (g) any lease, license, contract, property
rights or agreement to which such Loan Party is a party or any of its respective rights or interests therein if and for so long as the
grant of a security interest therein shall constitute or result in (i) the abandonment, invalidation or unenforceability of any
right, title or interest of such Loan Party therein or (ii) a breach or termination pursuant to the terms of, or a default under,
any such lease, license, contract, property rights or agreement or under applicable law (other than to the extent that any such term
would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC or pursuant to the PPSA (or any successor
provision or provisions) of any relevant jurisdiction or any other applicable law); provided that to the extent permitted under
local law, a security interest shall attach immediately (and such lease, license, contract, property rights or agreement shall immediately
cease to be Excluded Property) at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied,
and, to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement
(and such portion of such lease, license, contract, property rights or agreement shall immediately cease to be Excluded Property) that
does not result in any of the consequences specified in the foregoing clauses (i) or (ii); provided, further,
that in any jurisdiction where a security interest in favor of the Administrative Agent shall not immediately attach when such lease,
license, contract, property rights or agreement shall cease to constitute Excluded Property, upon the written request of the Administrative
Agent, such Loan Party shall use commercially reasonable efforts to cause a security interest in favor of the Administrative Agent to
attach thereto, (h) at any time the Specified Receivables Purchase Agreement or any Permitted Securitization Transaction is outstanding,
(i) any Securitized Asset that is subject thereto, (ii) the Equity Interests of the Special Purpose Subsidiary for such Permitted
Securitization Transaction and (iii) any deposit accounts established pursuant to such Specified Receivables Purchase Agreement
or Permitted Securitization Transaction for collection of the relevant Securitized Assets, (i) at any time any Permitted Receivables
Transaction is outstanding, the accounts receivable subject thereto, (j) consumer goods (as defined under the PPSA) and the last
day of the term of any lease or agreement for lease of real property, (k) inventory sold pursuant to any Permitted Inventory Financing
Arrangement upon consummation of such sale, and (l) other assets for which the cost or other negative consequence of obtaining or
perfecting a security interest is excessive in relation to the value to the Lenders of obtaining or perfecting such security interests,
as determined by the Administrative Agent in its sole discretion; provided, however, that the security interest granted
under the Loan Documents in favor of the Administrative Agent shall attach immediately to any asset of such Loan Party at such time as
such asset ceases to meet any of the criteria for “Excluded Property” described in any of the foregoing clauses (a) through
(l), including, without limitation, if the terms of the agreement(s) relating thereto that prohibit or limit the pledge or
granting of security interest therein, that would give rise to a violation or invalidation of the agreement(s) with respect thereto,
(i) are no longer in effect or (ii) have been waived by the other party to any such lease, license or other agreement.
25
“Excluded Subsidiary”
means (a) any Unrestricted Subsidiary, (b) any Immaterial Subsidiary, (c) any Subsidiary organized or formed under the
Laws of (i) Romania, (ii) the People’s Republic of China, (iii) the Kingdom of Thailand or (iv) Malaysia, (d) any
Special Purpose Subsidiary, (e) any Subsidiary that is prohibited by applicable Law or Contractual Obligation existing on the Closing
Date (or, with respect to any Subsidiary acquired by the Company or a Restricted Subsidiary (and so long as such Contractual Obligation
was not incurred in contemplation of such acquisition), on the date such Subsidiary is so acquired) from providing the Guaranty, or if
such Guaranty would require the consent, approval, license or authorization of any Governmental Authority or other third party, unless
such consent, approval, license or authorization has been received and (f) any other Subsidiary with respect to which the Administrative
Agent and the Company reasonably agree that the burden or cost of providing the Guaranty shall outweigh the benefits to be obtained by
the Lenders therefrom. Notwithstanding anything to the contrary in this Agreement, no Borrower (including, for the avoidance of doubt,
any Designated Borrower) shall constitute an Excluded Subsidiary.
“Excluded Swap Obligation”
means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Loan Party
of, or the grant under a Loan Document by such Loan Party of a security interest to secure, such Swap Obligation (or any Guarantee thereof)
is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Loan
Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange
Act (determined after giving effect to any applicable “keepwell” provisions in any Loan Document and any and all guarantees
of such Loan Party’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Loan Party, or grant by such Loan
Party of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement
governing more than one Swap Contract, such exclusion shall apply to only the portion of such Swap Obligation that is attributable to
Swap Contracts for which such Guaranty or security interest is or becomes illegal.
“Excluded Taxes”
means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to
a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in
each case, (i) imposed as a result of such Recipient being organized under the Laws of, or having its principal office or, in the
case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that
are Other Connection Taxes, (b) in the case of a Lender, withholding Taxes imposed on amounts payable to or for the account of such
Lender with respect to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date on which (i) such
Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under Section 10.13)
or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii),
3.01(a)(iii) or 3.01(c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately
before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable
to such Recipient’s failure to comply with Section 3.01(e), (d) any U.S. federal withholding Taxes imposed pursuant
to FATCA and (e) any Canadian federal withholding taxes imposed on a Recipient as a result of such Recipient (i) not dealing
at arm’s length (within the meaning of the ITA) with a Canadian Borrower at the time of such payment, or (ii) being a “specified
shareholder” (as defined in subsection 18(5) of the ITA) of a Canadian Borrower or not dealing at arm’s length (for
the purposes of the ITA) with a “specified shareholder” (as defined in subsection 18(5) of the ITA) of a Canadian Borrower
(other than where the non-arm’s length relationship arises, or where the Recipient is a “specified shareholder”, or
does not deal at arm’s length with a “specified shareholder”, as a result of such Recipient having become a party to,
received or perfected a security interest under or received or enforced any rights under, a Loan Document).
26
“Existing Credit Agreement”
has the meaning specified in the introductory paragraphs hereto.
“Existing Letters of Credit”
means those certain letters of credit set forth on Schedule 1.01.
“Exiting Lender”
means any lender party to the Existing Credit Agreement that is not a Lender under this Agreement.
“Facility Termination
Date” means the date as of which all of the following shall have occurred: (a) the Aggregate Commitments have terminated,
(b) all Obligations have been paid in full (other than contingent indemnification obligations for which no claim or demand has yet
been made), and (c) all Letters of Credit have terminated or expired (other than Letters of Credit as to which other arrangements
with respect thereto reasonably satisfactory to the Administrative Agent and each applicable L/C Issuer shall have been made).
“FASB ASC”
means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable
and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements
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.
“FCDO” has the meaning specified in the
definition of “Sanctions”.
“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 (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100
of one percent) charged to Bank of America on such day on such transactions as determined by the Administrative Agent and (c) if
the Federal Funds Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
27
“Fee Letters”
means, collectively, (a) the letter agreement, dated June 3, 2024, among the Canadian Borrowers, the Initial U.S. Borrower,
Bank of America (through itself or one of its designated affiliates or branch offices), and BofA Securities, Inc. (or any of its
designated affiliates), and (b) the letter agreement, dated June 3, 2024, among the Canadian Borrowers, the Initial U.S. Borrower,
Bank of America (through itself or one of its designated affiliates or branch offices), BofA Securities, Inc. (or any of its designated
affiliates), Canadian Imperial Bank of Commerce and CIBC World Markets Corp. (or any of its or their designated affiliates), MUFG Bank, Ltd.,
Canada Branch (or any of its designated affiliates), Crédit Agricole Corporate and Investment Bank (Canada Branch) (or any of its
designated affiliates), Royal Bank of Canada (or any of its designated affiliates), Citigroup Global Markets Inc. (along with and on behalf
of Citibank, N.A., Citicorp USA, Inc., Citicorp North America, Inc., and/or any of its other designated affiliates), BNP Paribas
Securities Corp. (or any of its designated affiliates), HSBC Securities (USA) Inc. (or any of its designated affiliates) and TD Securities
(USA) LLC (or any of its designated affiliates).
“Fitch” means, Fitch Ratings Inc., and
any successor thereto.
“Fixed Incremental
Amount” has the meaning specified in the definition of “Incremental Amount”.
“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 each L/C Issuer, such Defaulting Lender’s Applicable Percentage
of the Outstanding Amount of all outstanding L/C Obligations relating to Letters of Credit issued by such L/C Issuer 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 in accordance with the terms hereof.
“Fund”
means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its activities.
“GAAP”
means generally accepted accounting principles in the United States set forth from time to time 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 agencies with similar functions of comparable stature and authority within the accounting profession) including
the FASB ASC, that are applicable to the circumstances as of the date of determination, consistently applied and subject to Section 1.03.
“GAAP Adjusted Annual
Financial Statements” means the consolidated balance sheet of the Company and its Subsidiaries for the most recent fiscal year
ended prior to the Accounting Change Date for which audited financial statements are available, and the related consolidated statements
of operations, comprehensive income, changes in equity and cash flows for such fiscal year of the Company and its Subsidiaries, including
the notes thereto, as prepared in accordance with GAAP.
28
“GAAP Adjusted Financial
Statements” means, for any applicable fiscal year or fiscal quarter of the Company ending more than one day prior to the Accounting
Change Date, financial statements prepared by the Company in accordance with GAAP, which financial statements are prepared in conformity
with, and in substantially the same manner as, the GAAP Adjusted Annual Financial Statements or the GAAP Adjusted Interim Financial Statements,
as applicable.
“GAAP Adjusted Interim
Financial Statements” means, for any fiscal quarter of the Company, the consolidated balance sheet of the Company and its Subsidiaries
for the corresponding fiscal quarter of the fiscal year most recently ended prior to the Accounting Change Date, and the related consolidated
statements of operations, comprehensive income, changes in equity and cash flows for such fiscal quarter of the Company and its Subsidiaries
and for the portion of the Company’s fiscal year then ended, including the notes thereto, as prepared in accordance with GAAP.
“Governmental Authority”
means the government of the United States, Canada or any other nation, or of any political subdivision thereof, whether state, provincial,
territorial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including, without limitation,
the Financial Conduct Authority, the Prudential Regulation Authority and any supra-national bodies such as the European Union or the European
Central Bank).
“Gross Assets”
means, with respect to the Company or any Restricted Subsidiary, the sum of the book value of the gross assets of the Company or such
Restricted Subsidiary and each of its Restricted Subsidiaries (other than Restricted Subsidiaries that are Excluded Subsidiaries under
clause (a), (c), (d) or (e) of the definition thereof) in each case determined on a consolidated
basis as of the last day of the most recently ended fiscal quarter of the Company for which financial statements have been delivered pursuant
to Section 6.01.
“Guarantee”
means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having
the economic effect of guaranteeing any Indebtedness 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 Indebtedness or other obligation, (ii) to purchase
or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation
of the payment or performance of such Indebtedness 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 Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness 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 Indebtedness or other obligation of any
other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise,
of any holder of such Indebtedness to obtain any such Lien); provided, however, with respect to any Guarantee described
in clause (b) above, to the extent the Indebtedness or obligation secured thereby has not been assumed by the guarantor or
is nonrecourse to the guarantor, the amount of such Guarantee shall be deemed to be an amount equal to the lesser of the fair market
value of the assets subject to such Lien or the Indebtedness or obligation secured thereby. 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.
29
“Guarantors” means, collectively,
(a) each U.S. Guarantor and (b) each Non-U.S. Guarantor.
“Guaranty”
means, collectively, the Guarantee made by the Guarantors under Article XI in favor of the Secured Parties, together with
each other guaranty delivered pursuant to Section 6.14.
“Hazardous Materials”
means all explosive or radioactive substances or wastes and all hazardous or toxic substances 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.
“Hedge Bank”
means any Person in its capacity as a party to a Swap Contract that, (a) at the time it enters into a Swap Contract
not prohibited under Article VII, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes
a Lender, is a party to a Swap Contract not prohibited under Article VII, in each case, in its capacity as a party to such
Swap Contract (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, in
the case of a Secured Swap Contract with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered
a Hedge Bank only through the stated termination date (without extension or renewal) of such Secured Swap Contract and provided,
further, that for any of the foregoing to be included as a “Secured Swap Contract” on any date of determination by
the Administrative Agent, the applicable Hedge Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent)
must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.
“Honor Date” has the meaning specified
in Section 2.03(c).
“Hypothecary Representative” has the meaning
specified in Section 9.01.
“IFRS”
means the International Financial Reporting Standards as issued by the International Accounting Standards Board in effect in Canada from
time to time.
“Immaterial Subsidiary”
means, as of any date of determination, any Restricted Subsidiary that is not a Guarantor and that has Gross Assets of less than $150,000,000;
provided that if the aggregate amount of the Gross Assets of all Immaterial Subsidiaries that are not Guarantors exceeds twenty
percent (20%) of the aggregate amount of the Gross Assets of the Company, the Company shall designate by written notice to the Administrative
Agent one or more of such Immaterial Subsidiaries as no longer constituting Immaterial Subsidiaries (which Immaterial Subsidiaries shall
be determined by the Company in its sole discretion) such that after such designation the aggregate amount of the Gross Assets of all
Immaterial Subsidiaries that are not Guarantors does not exceed twenty percent (20%) of the aggregate amount of the Gross Assets of the
Company.
“Impacted Loans” has the meaning specified
in Section 3.03.
“Incremental Amount”: as of any date of
determination, an amount equal to:
(a) the greater
of (i) $700,000,000, and (ii) an amount equal to 10.0% of
Consolidated Total Assets determined as of the date of incurrence of the applicable Incremental Facility (such amount, the “Fixed
Incremental Amount”; it being understood that, for the avoidance of doubt, the amount of any Incremental Facility incurred in
reliance on the Fixed Incremental Amount shall reduce the Fixed Incremental Amount), plus
30
(b) the
amount of any voluntary prepayments, repurchases, redemptions, payments made pursuant to Section 10.13 or other retirements
of the Term A Loans, any other Indebtedness secured by the Collateral on a pari passu basis with the Term A Loans, or any Incremental
Facility (and, in the case of any such Incremental Facility in the form of a revolving facility, to the extent accompanied by a permanent
reduction of the relevant commitment), but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings
of new Loans hereunder and (B) prepayments with the proceeds of substantially concurrent incurrences of other long term Indebtedness
(other than borrowings under the Revolving Facility or any other revolving credit facility, in each case without a substantially concurrent
permanent commitment reduction) (this clause (b), the “Voluntary Prepayment Amount”), plus
(c) an
unlimited amount (this clause (c), the “Incremental Ratio Amount”), so long as, after giving effect to the relevant
Incremental Facility on a Pro Forma Basis (tested solely on the date of establishment of such Incremental Facility and not any time thereafter,
and assuming that such Incremental Facility is drawn in full, and without “netting” the cash proceeds of such Incremental
Facility or any other simultaneous incurrence of Indebtedness on the consolidated balance sheet of the Company):
(i) in
the case of an Incremental Facility secured on a pari passu basis with the Obligations, subject to the provisions of Section 1.10
in the case of any Incremental Term Facility used to finance a Limited Condition Acquisition, the Consolidated First Lien Net Leverage
Ratio does not exceed 3.00:1.00 (the amount calculated pursuant to this clause (c)(i), the “Incremental Pari Passu Ratio
Basket”); provided, that on and after the Collateral Release Date no Incremental Facilities may be incurred in reliance
on this Incremental Pari Passu Ratio Basket;
(ii) in
the case of an Incremental Facility secured by the Collateral on a basis junior to the Liens securing the Obligations, subject to the
provisions of Section 1.10 in the case of any Incremental Term Facility used to finance a Limited Condition Acquisition, the
Consolidated Secured Net Leverage Ratio does not exceed 3.25:1.00 (the amount calculated pursuant to this clause (c)(ii), the “Incremental
Junior Ratio Basket”); provided, that on and after the Collateral Release Date no Incremental Facilities may be incurred
in reliance on this Incremental Junior Ratio Basket, and
(iii) in
the case of an Incremental Facility that is unsecured, subject to the provisions of Section 1.10 in the case of any Incremental
Term Facility used to finance a Limited Condition Acquisition, the Consolidated Total Net Leverage Ratio (without giving effect to the
cap on cash netting in the definition thereof) does not exceed 4.00:1.00 (the amount calculated pursuant to this clause (c)(iii),
the “Incremental Unsecured Ratio Basket”);
it being understood and agreed that Incremental
Facilities may be incurred pursuant to this clause (c) prior to utilization of the Fixed Incremental Amount and the Voluntary
Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any Incremental Revolving Increase constituting
a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness;
provided that any Incremental
Facility may be incurred under either the Fixed Incremental Amount or the Incremental Ratio Amount as selected by the Company in its
sole discretion and if any Incremental Facility is intended to be incurred in part under both the Fixed Incremental Amount and the Incremental
Ratio Amount, then the permissibility of the portion of such Incremental Facility to be incurred under the Incremental Ratio Amount shall
first be determined without giving effect to the portion of such Incremental Facility incurred under the Fixed Incremental Amount, but
giving full Pro Forma Effect to the use of proceeds of the entire amount of such Incremental Facility; provided, further,
that, any portion of any Incremental Facility incurred other than under the Incremental Ratio Amount may be reclassified at any time,
as the Company may elect from time to time, as incurred under the Incremental Ratio Amount if the Company meets the applicable ratio
under the Incremental Ratio Amount at such time on a Pro Forma Basis at any time subsequent to the incurrence of such Incremental Facility
(or would have met such ratio, in which case, such reclassification shall be deemed to have automatically occurred if not elected by
the Company); provided, however, that, on and after the Collateral Release Date no Incremental Facilities may be reclassified
as incurred under the Incremental Pari Passu Ratio Basket or Incremental Junior Ratio Basket.
31
“Incremental Facilities” has the meaning
specified in Section 2.16.
“Incremental Facility Amendment” has the
meaning specified in Section 2.16.
“Incremental Facility Commitment” has
the meaning specified in Section 2.16(g).
“Incremental Junior
Ratio Basket” has the meaning specified in the definition of “Incremental Amount”.
“Incremental Pari
Passu Ratio Basket” has the meaning specified in the definition of “Incremental Amount”.
“Incremental Ratio
Amount” has the meaning specified in the definition of “Incremental Amount”.
“Incremental Revolving Increase” has the
meaning specified in Section 2.16.
“Incremental Term Facility” has the meaning
specified in Section 2.16.
“Incremental Term
Loan” means a term loan made by a Lender to a Borrower under an Incremental Term Facility.
“Incremental Tranche
A Facility Commitment” means an Incremental Facility Commitment in respect of an Incremental Tranche A Term Facility.
“Incremental Tranche A Term Facility”
has the meaning specified in Section 2.16(h).
“Incremental Tranche
A Term Loan” means a term loan made by a Lender to the Borrower under an Incremental Tranche A Term Facility.
“Incremental Tranche B Term Facility”
has the meaning specified in Section 2.16(h).
“Incremental Tranche
B Term Facility Commitment” means an Incremental Facility Commitment in respect of an Incremental Tranche B Term Facility.
“Incremental Tranche
B Term Loan” means a term loan made by a Lender to the Borrower under an Incremental Tranche B Term Facility.
32
“Incremental Unsecured
Ratio Basket” has the meaning specified in the definition of “Incremental Amount”.
“Indebtedness”
means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities
in accordance with the Applicable Accounting Standard as in effect at such time:
(a) all
obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements
or other similar instruments;
(b) all
direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances,
bank guaranties, surety bonds and similar instruments;
(c) net
obligations of such Person under any Swap Contract;
(d) all
obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary
course of business);
(e) indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person
or is limited in recourse;
(f) all
Attributable Indebtedness of such Person;
(g) all
obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such
Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; and
(h) all
Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the
Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself
a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is
expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be
the Swap Termination Value thereof as of such date. The amount of any Indebtedness described in clause (e), if such Indebtedness
has not been assumed or is limited in recourse to the property subject to such Lien, shall be deemed to be an amount equal to the lesser
of the fair market value of such property or the Indebtedness secured thereby. For the avoidance of doubt, the Indebtedness of any Person
shall exclude any customer deposits received by such Person.
“Indemnified Taxes”
means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of
any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitees” has the meaning specified
in Section 10.04(b).
“Information” has the meaning specified
in Section 10.07.
33
“Initial U.S. Borrower” has the meaning
specified in the introductory paragraph hereto.
“Inside Maturity
Indebtedness” means Indebtedness in an aggregate principal amount not to exceed, at the time of incurrence of any such Indebtedness
(and measured after giving effect to the incurrence thereof), the sum of (a) the greater of (x) $700,000,000 and (y) 10.0%
of Consolidated Total Assets determined as of the date of incurrence of any such Indebtedness, plus (b) the amount of any
voluntary or mandatory prepayments of principal of any Indebtedness previously incurred as Inside Maturity Indebtedness.
“Interest Payment
Date” means, (a) [reserved]; (b) as to any Term SOFR Loan, the last day of each Interest Period applicable to such
Loan and the Maturity Date applicable thereto; provided, however, that if any Interest Period for a Term SOFR Loan exceeds
three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also
be Interest Payment Dates; (c) as to any Base Rate Loan, Canadian Prime Rate Loan or Swing Line Loan, the last Business Day of each
March, June, September and December and the Maturity Date applicable thereto under which such Loan was made (with Swing Line
Loans being deemed made under the Revolving Facility for purposes of this definition); (d) as to any Daily Simple SOFR Loan, the
last Business Day of each March, June, September and December of each year and the Maturity Date applicable thereto; (e) as
to any Alternative Currency Daily Rate Loan, the last Business Day of each March, June, September and December of each year
and the Maturity Date applicable thereto; and (f) as to any Alternative Currency Term Rate Loan, the last day of each Interest Period
applicable to such Loan and the Maturity Date applicable thereto; provided, however, that if any Interest Period for an
Alternative Currency Term Rate Loan exceeds three (3) months, the respective dates that fall every three (3) months after the
beginning of such Interest Period shall also be Interest Payment Dates.
“Interest Period”
means as to each Term SOFR Loan or Alternative Currency Term Rate Loan, the period commencing on the date such Term SOFR Loan or Alternative
Currency Term Rate Loan, as applicable, is disbursed or converted to or continued as a Term SOFR Loan or Alternative Currency Term Rate
Loan, as applicable, and ending on the date one (1), three (3) or (other than in the case of Alternative Currency Term Rate Loans
based on Term CORRA) six (6) months thereafter (in each case, subject to availability for the interest rate applicable to the relevant
currency), as selected by the appropriate Borrower in its Loan Notice; provided that:
(a) any
Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any
Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such
Interest Period; and
(c) no
Interest Period shall extend beyond the Maturity Date applicable to such Loan.
“Interim Financial Statements” has the
meaning specified in Section 4.01(a)(xv).
“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 Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption
of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any
partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness
of such other Person, or (c) an Acquisition. 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.
34
“IP Rights” has the meaning specified
in Section 5.20.
“Ireland” means Ireland (exclusive of
Northern Ireland).
“Irish Companies Act” means the Companies
Act of 2014 of Ireland.
“Irish Loan Party” means a Loan Party
incorporated under the laws of Ireland.
“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 applicable L/C Issuer and the Company (or any Subsidiary) or in favor of the applicable L/C Issuer and relating to such Letter
of Credit.
“ITA” means the Income Tax Act (Canada).
“Joinder Agreement”
means a joinder agreement substantially in the form of Exhibit J or such other form as may be approved by the Administrative
Agent, in either case, executed and delivered in accordance with the provisions of Section 6.14.
“Judgment Currency” has the meaning specified
in Section 10.20.
“Junior Payment” means any principal payment
on any Additional Indebtedness.
“Junior Secured Indebtedness”
means Indebtedness of the Company or any other Loan Party that by its terms is secured on a junior basis to the Obligations in a manner
and to an extent reasonably acceptable to the Administrative Agent (including, without limitation, if reasonably required by the Administrative
Agent, the entry into of an intercreditor and/or subordination agreement generally acceptable to the Administrative Agent).
“Korean Guarantor” has the meaning specified
in Section 11.09.
“KPI Metrics” has the meaning specified
in Section 2.21.
“KPIs” has the meaning specified in Section 2.21.
“Laws”
means, collectively, all international, foreign, federal, state, provincial, territorial 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.
35
“L/C Advance”
means, with respect to each Revolving Lender, such Revolving Lender’s funding of its participation in any L/C Borrowing in accordance
with its Applicable Percentage. All L/C Advances shall be denominated in Dollars.
“L/C Borrowing”
means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Borrowing. All L/C Borrowings shall be denominated in Dollars.
“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 each of (a) Bank of America, (b) Canadian Imperial Bank of Commerce (in the case of each of the foregoing clauses (a) and
(b), through itself or through one of its respective designated Affiliates or branch officers), (c) any Lender appointed by
the Company (with the consent of the Administrative Agent and such Lender) as an L/C Issuer by written notice to the Administrative Agent
as a replacement for any L/C Issuer who, at the time of such notice, is a Defaulting Lender and (d) any successor issuer of Letters
of Credit hereunder, in each case in its capacity as 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 1.09. 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.
“LCA Election” has the meaning specified
in Section 1.10.
“LCA Test Date” has the meaning specified
in Section 1.10.
“Lender”
means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that becomes a “Lender”
in accordance with this Agreement and their successors and assigns and, as the context requires, includes the Swing Line Lender and each
L/C Issuer.
“Lending Office”
means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or
such other office or offices as a Lender may from time to time notify the Company and the Administrative Agent which office may include
any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires
each reference to a Lender shall include its applicable Lending Office.
“Letter of Credit”
means any letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder and shall
include the Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby letter of credit. Letters
of Credit may be issued in Dollars or in an Alternative Currency.
“Letter of Credit
Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to
time in use by the applicable L/C Issuer.
36
“Letter of Credit
Expiration Date” means the day that is seven (7) days prior to the Maturity Date then in effect for Letters of Credit (or,
if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Fee” has the meaning
specified in Section 2.03(h).
“Letter of Credit
Sublimit” means an amount equal to the lesser of (a) $300,000,000 and (b) the Aggregate Revolving Commitments; provided
that as of the Second Amendment Effective Date, with respect to each of Bank of America and Canadian Imperial Bank of Commerce, each in
its capacity as an L/C Issuer, such L/C Issuer shall not be obligated to issue Letters of Credit in an amount greater than the amount
set forth as its “Letter of Credit Commitment” on Schedule 2.01. The Letter of Credit Sublimit is part of, and not
in addition to, the Aggregate Revolving Commitments.
“Leverage Increase Period” has the meaning
specified in Section 7.11(b).
“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), hypothec, 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).
“Limited Condition
Acquisition” means any Permitted Acquisition by one or more of the Loan Parties or their Subsidiaries (a) that is not prohibited
hereunder, (b) is financed in whole or in part with a substantially concurrent incurrence of Incremental Term Facilities or Additional
Indebtedness and (c) whose consummation is not conditioned on the availability of, or on obtaining, third-party financing and which
is consummated no more than one hundred eighty (180) days after the applicable Limited Condition Acquisition Agreement date is executed
and effective.
“Limited Condition Acquisition Agreement”
has the meaning specified in Section 1.10.
“Loan”
means an extension of credit by a Lender to a Borrower under Article II in the form of a Revolving Loan, Swing Line Loan or
Term Loan.
“Loan Documents”
means, collectively, this Agreement, the Collateral Documents, each Designated Borrower Request and Assumption Agreement, each Note, each
Issuer Document, each Joinder Agreement, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of
Section 2.17, the Fee Letters, each Incremental Facility Amendment, each Loan Modification Agreement, each ESG Amendment,
each intercreditor agreement or subordination agreement contemplated hereby and entered into by the Administrative Agent and each other
agreement designated by its terms as a Loan Document (but specifically excluding any Secured Cash Management Agreement and any Secured
Swap Contract).
“Loan Modification Agreement” has the
meaning specified in Section 10.01(c).
“Loan Modification Offer” has the meaning
specified in Section 10.01(c).
“Loan Notice”
means a notice of (a) a Borrowing of Loans (other than Swing Line Loans), (b) a conversion of Loans from one Type to another
Type, or (c) a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans pursuant to Section 2.02(a),
which 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 applicable Borrower.
37
“Loan Parties” means, collectively, each
Borrower and each Guarantor.
“Malaysian Loan Party” has the meaning
specified in Section 5.25(f).
“Mandatory Cost”
means any amount incurred periodically by any Lender during the term of this Agreement which constitutes fees, costs or charges imposed
on lenders generally in the jurisdiction in which such Lender is domiciled, subject to regulation or has its Lending Office by any Governmental
Authority which are applicable to the Credit Extensions and such Lender’s Lending Office.
“Master Agreement” has the meaning specified
in the definition of “Swap Contract”.
“Material Adverse
Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, assets, properties,
liabilities (actual or contingent) or condition (financial or otherwise) of the Company and its Restricted Subsidiaries taken as a whole;
(b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Documents, or of the
ability of the Loan Parties, taken as a whole, to perform their obligations under the Loan Documents; or (c) a material adverse effect
upon the legality, validity, binding effect or enforceability against the Loan Parties, taken as a whole, of the Loan Documents.
“Material Restricted
Subsidiary” means any Restricted Subsidiary that is not an Immaterial Subsidiary.
“Maturity Date”
means (a) as to the Term A Loan, Revolving Loans, Swing Line Loans and Letters of Credit (and the related L/C Obligations), April 27,
2031 and (b) as to the Term B Loan, June 20, 2031; provided, that, with respect to each of the foregoing clause
(a) and clause (b), if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“MFN Protection” has the meaning specified
in Section 2.16(j).
“Minimum Collateral
Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances provided
to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to one hundred three percent (103%)
of the Fronting Exposure of each applicable L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (b) with
respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.17(a)(i),
(a)(ii) or (a)(iii), an amount equal to one hundred three percent (103%) of the Outstanding Amount of all L/C Obligations,
and (c) otherwise, an amount determined by the Administrative Agent and the applicable L/C Issuer in their sole discretion.
“Moody’s” means Moody’s Investors
Service, Inc. and any successor thereto.
“Multiemployer Plan”
means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Company 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 Company 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.
38
“Net Cash Proceeds”
means the aggregate cash or Cash Equivalents proceeds received by the Company or any Restricted Subsidiary in respect of any Disposition,
Debt Issuance or Recovery Event, net of (a) costs and direct expenses incurred in connection therewith (including, without limitation,
legal, accounting and investment banking fees, costs, underwriting discounts, and sales commissions), (b) Taxes paid or reasonably
estimated to be payable as a result thereof or in connection therewith (including pursuant to any Tax sharing arrangement), (c) in
the case of any Disposition or any Recovery Event, the amount necessary to retire any Indebtedness secured by a Lien on the related property
to the extent such Indebtedness is actually retired and such payment is not prohibited under Section 7.14 and (d) in
connection with any Disposition, a reasonable reserve determined by the Company or such Subsidiary in its reasonable business judgment
for (i) any reasonably anticipated adjustment in sale price of such asset or assets and (ii) reasonably anticipated liabilities
associated with such asset or assets and retained by the Company or any Restricted Subsidiary after such Disposition, including pension
and other post-employment benefit liabilities and liabilities related to environmental matters or with respect to any indemnification
payments (fixed or contingent) or purchase price adjustments attributable to seller’s indemnities and representations and warranties
to purchaser in respect of such Disposition undertaken by the Company or such Subsidiary in connection with such Disposition (the “Disposition
Reserves”); it being understood that “Net Cash Proceeds” shall include, without limitation, (a) any cash or
Cash Equivalents received upon the sale or other disposition of any non-cash consideration received by the Company or any Restricted Subsidiary
in any Disposition, Debt Issuance or Recovery Event and (b) any Disposition Reserves that are no longer necessary with respect to
the applicable Disposition; provided, that (x) any amount of the purchase price in connection with any Disposition that is
held in escrow shall not be deemed to be received by the Company or any of its Restricted Subsidiaries until such amount is paid to the
Company or such Subsidiary out of escrow and (y) (i) Net Cash Proceeds received by the Company or any wholly owned Restricted
Subsidiary of the Company shall equal one hundred percent (100%) of the cash proceeds received by the Company or such Restricted Subsidiary
pursuant to the foregoing definition and (ii) Net Cash Proceeds received by any Restricted Subsidiary other than a wholly owned Subsidiary
of the Company shall equal a percentage of the cash proceeds received by such Subsidiary pursuant to the foregoing definition equal to
the percentage of such Restricted Subsidiary’s total outstanding Equity Interests owned by the Company and its Restricted Subsidiaries.
“New Lender”
means each Person identified as a “Lender” on the signature pages hereto that is not a lender party to the Existing Credit
Agreement.
“Non-Consenting Lender”
means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected
Lenders in accordance with the terms of Section 10.01 and (b) has been approved by the Required Lenders or, if such consent,
waiver or amendment requires the approval of all affected Lenders (and not all Lenders), affected Lenders having affected Loans and Commitments
representing more than fifty percent (50%) of all affected Loans and Commitments; provided, that, the Loans and Commitments of
any Defaulting Lender that is an affected Lender shall be disregarded in determining affected Lenders having affected Loans and Commitments
representing more than fifty percent (50%) of all affected Loans and Commitments at any time.
“Non-Defaulting Lender”
means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Extension Notice Date” has the meaning
specified in Section 2.03(b)(iii).
“Non-Reinstatement Deadline” has the meaning specified in Section 2.03(b)(iv).
“Non-U.S. Borrower” has the meaning specified in the introductory paragraph hereto.
39
“Non-U.S. Guarantors”
means, collectively, (a) the Company and each Subsidiary identified as a “Non-U.S. Guarantor” on the signature pages hereto,
(b) each other Subsidiary that joins as a Non-U.S. Guarantor pursuant to Section 6.14 or otherwise, (c) with respect
to Additional Secured Obligations owing by the Company or any Non-U.S. Subsidiary under the Guaranty, each Non-U.S. Borrower, (d) with
respect to Additional Secured Obligations owing by any U.S. Subsidiary under the Guaranty, each Non-U.S. Borrower that is not a Specified
Non-U.S. Borrower and (e) the successors and permitted assigns of each of the foregoing to the extent that any such successor or
permitted assign is a Non-U.S. Subsidiary or Specified Subsidiary, and, in the case of clause (d), not a CFC or CFC Holdco.
“Non-U.S. Lender”
means, with respect to any Borrower, (a) if such Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if such
Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which such Borrower
is resident for tax purposes. For purposes of this definition, the United States, each state thereof and the District of Columbia shall
be deemed to constitute a single jurisdiction.
“Non-U.S. Obligations”
means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Non-U.S. Obligor arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, (b) all debts, liabilities, obligations, covenants and duties
of any Non-U.S. Obligor or any Non-U.S. Subsidiary arising under any Secured Swap Contract and (c) all debts, liabilities, obligations,
covenants and duties of any Non-U.S. Obligor or any Non-U.S. Subsidiary arising under any Secured Cash Management Agreement, in the case
of each of clauses (a), (b) and (c), whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including all costs and expenses incurred in connection with
the enforcement and collection of the foregoing and interest and fees that accrue after the commencement by or against any Non-U.S. Obligor
or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless
of whether such interest and fees are allowed claims in such proceeding; provided, however, that the “Non-U.S. Obligations”
of a Non-U.S. Obligor shall exclude any Excluded Swap Obligations with respect to such Non-U.S. Obligor.
“Non-U.S. Obligor”
means any Loan Party that is organized or incorporated under the laws of a jurisdiction other than the United States, a state thereof
or the District of Columbia.
“Non-U.S. Subsidiary”
means any Subsidiary that is organized or incorporated under the laws of a jurisdiction other than the United States, a state thereof
or the District of Columbia.
“Note” has the meaning specified in Section 2.12.
“Notice of Loan Prepayment”
means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit C 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 applicable Borrower.
“Obligations”
means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document
or otherwise with respect to any Loan or Letter of Credit, (b) all debts, liabilities, obligations, covenants and duties of any
Loan Party or any Subsidiary arising under any Secured Swap Contract and (c) all debts, liabilities, obligations, covenants and
duties of any Loan Party or any Subsidiary arising under any Secured Cash Management Agreement, in the case of each of clauses (a),
(b) and (c), whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to
become due, now existing or hereafter arising and including all costs and expenses incurred in connection with the enforcement and collection
of the foregoing and interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding; provided, however, that the “Obligations” of a Loan Party shall
exclude any Excluded Swap Obligations with respect to such Loan Party.
40
“OFAC”
means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Organization Documents”
means, (a) with respect to any corporation or, to the extent organized or incorporated under the laws of a foreign jurisdiction,
any company, the certificate and/or articles of incorporation and the bylaws, memorandum of association, articles of association and/or
memorandum and articles of association (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction (and
in particular with respect to any corporation incorporated in Spain, the bylaws (“estatutos sociales”) currently in
force of the company evidenced by means of an updated excerpt (“certificación literal completa”) issued by the
relevant Mercantile Registry or the copies of the public deed(s) containing the updated and in force version of such bylaws)); (b) with
respect to any limited liability company, the certificate and/or articles of formation or organization and operating agreement or limited
liability company 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 and/or articles of formation or organization of such entity.
“Original Closing Date” means June 27,
2018.
“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 that arise from any payment made
under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest
under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to
an assignment (other than an assignment made pursuant to Section 3.06).
“Outbound Investment
Rules” means the regulations administered and enforced, together with any related public guidance issued, by the United States
Treasury Department under U.S. Executive Order 14105 of August 9, 2023, or any similar law or regulation; as of the Second Amendment
Effective Date, and as codified at 31 C.F.R. § 850.101 et seq.
“Outstanding Amount”
means (a) with respect to Loans on any date, the Dollar Equivalent of the aggregate outstanding principal amount thereof after giving
effect to any borrowings and prepayments or repayments thereof occurring on such date; and (b) with respect to any L/C Obligations
on any date, the Dollar Equivalent of the aggregate outstanding 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 of Unreimbursed Amounts or any reductions in the maximum amount available for drawing under Letters
of Credit taking effect on such date.
41
“Overnight Rate”
means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent, the applicable L/C Issuer, or the Swing Line Lender, as the case may be, in accordance
with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency,
an overnight rate determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, in accordance with banking
industry rules on interbank compensation.
“Parallel Debt” has the meaning specified
in Section 10.24(a).
“Pari Passu Indebtedness”
means Indebtedness of the Company or any Loan Party that by its terms is secured on a pari passu basis to the Obligations in a
manner and to an extent reasonably acceptable to the Administrative Agent (including, without limitation, the entry into of an intercreditor
and/or subordination agreement generally acceptable to the Administrative Agent).
“Participant” has the meaning specified
in Section 10.06(d).
“Participant Register” has the meaning
specified in Section 10.06(d).
“Participating Member
State” means any member state of the European Union that adopts or has adopted the Euro, and in each case continues to adopt,
as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“PATRIOT Act” has the meaning specified
in Section 10.19.
“PBGC” means the Pension Benefit Guaranty
Corporation.
“Pension Act” means the Pension Protection
Act of 2006.
“Pension Funding
Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment
thereof) to Pension Plans and set forth in Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan”
means any employee pension benefit plan (including a Multiple Employer Plan but excluding a Multiemployer Plan) that is maintained or
is contributed to by the Company and 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.
“Permitted Acquisition”
means an Acquisition by the Company or any Restricted Subsidiary; provided that (a) no Default or Event of Default has occurred
and is continuing or would result from such Acquisition, (b) the property acquired (or the property of the Person acquired) in such
Acquisition is used or useful in the same or a similar line of business as the Company and its Subsidiaries were engaged in on the Closing
Date (or any reasonable extensions or expansions thereof), (c) in the case of an Acquisition of the Equity Interests of another
Person, the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition, (d) subject
to the terms of Section 1.10, the representations and warranties made by the Loan Parties contained in Article V
or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith,
shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects)
on and as of the date of such Acquisition (after giving effect thereto), except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if qualified by materiality
or reference to Material Adverse Effect, in all respects) as of such earlier date, (e) [reserved], and (f) with respect to
any such Acquisition the aggregate consideration for which exceeds $300,000,000, the Company shall have delivered to the Administrative
Agent a Pro Forma Compliance Certificate demonstrating that, after giving effect to such Acquisition on a Pro Forma Basis, the Loan Parties
would be in Pro Forma Compliance.
42
“Permitted Amendments” has the meaning
specified in Section 10.01(c).
“Permitted Inventory
Financing Arrangement” means the sale of any inventory by the Company or any of its Restricted Subsidiaries; provided,
that (a) the consideration received by the Company or such Restricted Subsidiary in connection with such sale shall be cash, (b) such
sale shall not involve the creation of any recourse obligation in respect thereof on the part of the Company or any of its Restricted
Subsidiaries (other than with respect to customary representations and warranties, purchase or repurchase obligations for breaches of
representations and warranties, performance guaranties and indemnity obligations and other similar undertakings in each case that are
customary for similar inventory financing arrangements), (c) to the extent requested in writing by the Administrative Agent, any
proceeds of such inventory received by the Company or such Restricted Subsidiary after the sale of such inventory shall be promptly paid
over to a segregated deposit account not holding other assets of the Company or its Restricted Subsidiaries, to the extent not promptly
paid over to (including via netting against purchase price payable by) the purchaser of such inventory, (d) any discount given by
the Company or such Restricted Subsidiary on the purchase price of such inventory shall be customary in light of the then prevailing market
conditions, and (e) the aggregate book value of inventory sold during any period of four (4) consecutive fiscal quarters of
the Company shall not exceed $250,000,000.
“Permitted Investment” means an Investment
permitted under Section 7.02.
“Permitted Liens”
means, at any time, Liens in respect of property of the Company or any Restricted Subsidiary permitted to exist at such time pursuant
to the terms of Section 7.01.
“Permitted Priority Indebtedness” has
the meaning specified in Section 7.03.
“Permitted Receivables Transaction” has
the meaning specified in Section 7.05(x).
“Permitted Repricing Amendment” has the
meaning specified in Section 10.01(b).
“Permitted Securitization
Transaction” means any Securitization Transaction permitted under clause (i) of Section 7.03(j).
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
“Plan”
means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees
of the Company or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate
or any such Plan to which the Company or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of
ERISA, any ERISA Affiliate is required to contribute on behalf of any of its employees and which is subject to ERISA.
“Plan of Reorganization” has the meaning
specified in Section 10.06(h)(iii).
43
“Platform” has the meaning specified in
Section 6.02.
“Post-Closing Compliance Date” has the
meaning specified in Section 6.19(a).
“PPSA”
means the Personal Property Security Act (Ontario); provided that, if perfection or the effect of perfection or non-perfection
or the priority of any security interest in any Collateral is governed by the Personal Property Security Act as in effect in a Canadian
jurisdiction other than the Province of Ontario, or the Civil Code of Quebec, “PPSA” means the Personal Property Security
Act as in effect from time to time in such other jurisdiction or the Civil Code of Quebec, as applicable, for purposes of the provisions
hereof relating to such perfection, effect of perfection or non-perfection or priority.
“Pricing Level” has the meaning specified
in the definition of “Corporate Rating”.
“Priority Indebtedness”
means, as to the Company and its Restricted Subsidiaries at any time, without duplication, (a) unsecured Indebtedness of any Restricted
Subsidiary other than a Loan Party, (b) Indebtedness of the Company or any Restricted Subsidiary secured by any Lien (excluding purchase
money Indebtedness) and (c) Guarantees by the Company or any Restricted Subsidiaries of Indebtedness of Unrestricted Subsidiaries,
in each case including any such Indebtedness outstanding on the Collateral Release Date.
“Pro Forma Basis”
and “Pro Forma Effect” means, in respect of a Specified Transaction, that such Specified Transaction and the following
transactions in connection therewith (to the extent applicable) shall be deemed to have occurred as of the first day of the applicable
four (4) fiscal quarter period for the applicable covenant or requirement: (a) (i) with respect to any Disposition, income
statement and cash flow statement items (whether positive or negative) attributable to the Person or property disposed of shall be excluded,
(ii) with respect to any Investment, income statement and cash flow statement items (whether positive or negative) attributable
to the Person or property acquired shall be included to the extent relating to any period applicable in such calculations to the extent
(A) such items are not otherwise included in such income statement items for the Company and its Restricted Subsidiaries in accordance
with the Applicable Accounting Standard as in effect on such date or in accordance with any defined terms set forth in Section 1.01,
and (B) such items are supported by financial statements or other information reasonably satisfactory to the Administrative Agent,
and (iii) with respect to any Acquisition by the Company or a Restricted Subsidiary of (A) a corporation which becomes a new
Restricted Subsidiary or (B) any other entity or a group of assets or an operation; provided that such operation comprises
a going concern which becomes a division or part of the business of the Company or a Restricted Subsidiary (each, an “operation”),
Consolidated EBITDA will include the Target EBITDA of the newly acquired Restricted Subsidiary or operation for its immediately preceding
four (4) fiscal quarters completed prior to such acquisition as determined using the following method: (x) if such newly acquired
Restricted Subsidiary or operation was, immediately prior to such acquisition, accounted for on a stand-alone basis, each of the components
of Consolidated EBITDA applied mutatis mutandis as if such definition and its component definitions referred to such newly acquired
Restricted Subsidiary or operation (“Target EBITDA”) shall only be included in the calculation of Consolidated EBITDA
for such newly acquired Restricted Subsidiary or operation, as the case may be, if Target EBITDA can be determined by reference to historical
financial statements reasonably satisfactory to the Administrative Agent and (y) if such newly acquired Restricted Subsidiary or
operation: (A) was not, immediately prior to such acquisition, accounted for on a stand-alone basis; or (B) was immediately
prior to such acquisition, accounted for on a stand-alone basis but, in the determination of the Administrative Agent acting reasonably,
the business of such newly acquired Restricted Subsidiary or operation will not be conducted by the Company or its Restricted Subsidiary,
as the case may be, in substantially the same form or the same manner as conducted by the seller immediately prior to such acquisition,
then subject to the satisfaction of the Administrative Agent and the Required Lenders with the method of determination thereof acting
reasonably, Target EBITDA for such newly acquired Restricted Subsidiary or operation will be determined having regard to historical financial
results together with, and having regard to, contractual arrangements and any other changes made or proposed to be made by the Company
or its Restricted Subsidiary, as the case may be, to the business of such newly acquired Restricted Subsidiary or operation; (b) any
retirement or prepayment of Indebtedness; (c) any incurrence or assumption of Indebtedness by the Company or any of its Restricted
Subsidiaries (and if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the
applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination); and (d) with respect to the designation of any Unrestricted Subsidiary as
an Restricted Subsidiary, (i) income statement and cash flow statement items (whether positive or negative) attributable to such
Subsidiary shall be included to the extent relating to any period prior to the date of such designation to the extent such items are
not otherwise included in such income statement and cash flow statement items for the Company and its Restricted Subsidiaries in accordance
with any defined terms set forth in Section 1.01 and (ii) Indebtedness of such Subsidiary shall be included and deemed
to have been incurred as of the first day of the applicable period. Notwithstanding anything to the contrary set forth in this Agreement,
for purposes of determining compliance on a Pro Forma Basis, or for purposes of giving Pro Forma Effect to any Specified Transaction,
it is understood and agreed that, from and after the date on which financial statements are delivered (or required to be delivered) by
the Company pursuant to Section 6.01(b) for the first fiscal quarter of the Company ending after the Accounting Change
Date, to the extent all or any portion of any relevant four (4) fiscal quarter period includes financial statements that were prepared
in accordance with IFRS, any determination of compliance on a Pro Forma Basis and/or any calculation giving Pro Forma Effect shall, in
each case, be determined and/or calculated, as applicable, using GAAP Adjusted Financial Statements for any such fiscal quarter or fiscal
year.
44
“Pro Forma Compliance”
means, with respect to any transaction, that after giving effect to such transaction on a Pro Forma Basis, the Loan Parties would be in
compliance with the financial covenants set forth in Section 7.11 recomputed as of the end of such period.
“Pro Forma Compliance
Certificate” means a certificate of a Responsible Officer of the Company containing reasonably detailed calculations of the
financial covenants set forth in Section 7.11 recomputed as of the end of the applicable period after giving effect to the
applicable transaction on a Pro Forma Basis.
“PTE” means
a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified
in Section 6.02.
“Qualified Acquisition”
means a Permitted Acquisition with aggregate consideration of at least $150,000,000, or any series of related Permitted Acquisitions in
any twelve (12) month period with aggregate consideration for all such Permitted Acquisitions of at least $150,000,000; provided
that for any such Permitted Acquisition or series of related Permitted Acquisitions, a Responsible Officer of the Company shall have delivered
to the Administrative Agent, prior to the consummation of such Permitted Acquisition or the last in such series of related Permitted Acquisitions,
as applicable, a certificate (any such certificate, a “Qualified Acquisition Notice”) (a) certifying that such
Permitted Acquisition or series of Permitted Acquisitions qualifies as a Qualified Acquisition and (b) notifying the Administrative
Agent that the Company has elected to treat such Permitted Acquisition or series of related Acquisitions as a Qualified Acquisition.
45
“Qualified Acquisition
Notice” has the meaning specified in the definition of “Qualified Acquisition”.
“Qualified Acquisition
Pro Forma Determination” means, to the extent required in connection with determining the permissibility of any Permitted Acquisition
or series of related Permitted Acquisitions that the Loan Parties elect to treat as a Qualified Acquisition, the determination of whether
the Loan Parties are in Pro Forma Compliance.
“Qualified Cash”
means, as of any date of determination, for the Company and its Restricted Subsidiaries, (a) prior to the Collateral Release Date,
the sum of, without duplication, (i) unrestricted cash held in a Controlled Account over which the Administrative Agent has a perfected
Lien to secure the Obligations, plus (ii) unrestricted cash held in an account otherwise subject to a perfected Lien of the
Administrative Agent to secure the Obligations, plus (iii) unrestricted Cash Equivalents of the Company and its Restricted
Subsidiaries, in each case, as of such date and (b) on and after the Collateral Release Date, the sum of, without duplication, (i) unrestricted
cash of the Company and its Restricted Subsidiaries, plus (ii) unrestricted Cash Equivalents of the Company and its Restricted
Subsidiaries, in each case, as of such date.
“Qualified ECP Guarantor”
means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract
participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant”
at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualified Equity
Interests” means all Equity Interests of a Person other than Disqualified Equity Interests.
“Recipient”
means the Administrative Agent, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation
of any Loan Party hereunder.
“Recovery Event”
means any casualty loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of the Company
or other Loan Party.
“Register” has the meaning specified in
Section 10.06(c).
“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees,
administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Related Specified
Parties” means, with respect to any Person, (a) any Affiliate of such Person, (b) the respective directors, officers
or employees of such Person or any of its Affiliates and (c) the respective agents of such Person or any of its Affiliates, in the
case of this clause (c), acting on behalf of, or at the express instructions of, such Person or Affiliate; provided that
each such reference to an Affiliate, director, officer or employee shall refer to an Affiliate, director, officer or employee involved
in the execution or delivery of this Agreement or any other Loan Document, 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.
46
“Relevant Rate”
means with respect to any Credit Extension denominated in (a) Sterling, SONIA, (b) Euros, EURIBOR, (c) Canadian Dollars,
the Term CORRA Rate, and (d) any other Alternative Currency, the applicable Alternative Currency Daily Rate or Alternative Currency
Term Rate, as applicable (in each case, or any Alternative Currency Successor Rate established in connection therewith).
“Removal Effective Date” has the meaning
specified in Section 9.06(b).
“Reportable Event”
means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been
waived.
“Repricing Event”
means (a) any optional or mandatory prepayment of the Term B Loan, in whole or in part, with the proceeds of, or conversion of any
portion of the Term B Loan into, any new or replacement tranche of Indebtedness bearing interest with an All-In-Yield less than the All-In-Yield
of such portion of the Term B Loan (as such All-In-Yields are reasonably determined by the Administrative Agent consistent with generally
accepted financial practices) and (b) any amendment to any portion of this Agreement with respect to the Term B Loan which, directly
or indirectly, reduces the All-In-Yield applicable to the Term B Loan (except with respect to any Lender that consents to such amendment),
in each case of clauses (a) and (b), solely to the extent that the primary purpose of such replacement or amendment, as determined
by the Administrative Agent, is to reduce the All-In-Yield on such Term Loan. Notwithstanding the foregoing, “Repricing Event”
shall exclude, in any such case, (x) any refinancing or repricing of the Term B Loan or amendment to this Agreement in connection
with any Change of Control transaction, and (y) any “transformational” acquisition by the Company or any Restricted Subsidiary.
“Request for Credit
Extension” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Loan Notice, (b) with respect
to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required Lenders”
means, at any time, Lenders having Total Credit Exposures representing more than fifty percent (50%) of the Total Credit Exposures of
all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided
that, the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that
have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or an
L/C Issuer, as the case may be, in making such determination.
“Required Pro Rata
Facilities Lenders” means, at any time, Lenders holding in the aggregate more than fifty percent (50%) of the sum of (a) the
aggregate Revolving Credit Exposures of all the Lenders at such time, plus (b) the outstanding aggregate principal amount
of the Term A Loan, plus (c) the unfunded Incremental Tranche A Facility Commitments at such time, plus (d) the
outstanding Incremental Tranche A Term Loans. The Revolving Credit Exposure, Term A Loan, Incremental Tranche A Facility Commitments
and Incremental Tranche A Term Loans of any Defaulting Lender shall be disregarded in determining Required Pro Rata Facilities Lenders
at any time; provided that the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting
Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that
is the Swing Line Lender or applicable L/C Issuer, as the case may be, in making such determination.
“Required Revolving
Lenders” means, at any time, Lenders having Revolving Credit Exposures representing more than fifty percent (50%) of the Revolving
Credit Exposures of all Lenders having Revolving Credit Exposures. The Revolving Credit Exposure of any Defaulting Lender shall be disregarded
in determining Required Revolving Lenders at any time; provided that the amount of any participation in any Swing Line Loan and
Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall
be deemed to be held by the Lender that is the Swing Line Lender or applicable L/C Issuer, as the case may be, in making such determination.
47
“Rescindable Amount” has the meaning specified
in Section 2.13(b)(ii).
“Resignation Effective Date” has the meaning
specified in Section 9.06(a).
“Resolution Authority”
means an EEA Resolution Authority, a U.K. Resolution Authority or any other body which has authority to exercise any Write-Down and Conversion
Powers.
“Responsible Officer”
means the chief executive officer, president, executive vice president, vice president, chief financial officer, treasurer, assistant
treasurer, controller or such other Person who is the highest ranking officer appointed pursuant to the relevant Organization Documents
(or, in foreign jurisdictions, substantially equivalent representatives, including a director or manager) 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
(or, in foreign jurisdictions, substantially equivalent representatives, including a director, company secretary or manager) of a Loan
Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee or equivalent representative
of the applicable Loan Party so designated by any of the foregoing officers, directors or managers 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. To the extent requested by the Administrative Agent,
each Responsible Officer will provide an incumbency certificate and appropriate authorization documentation, in form and substance reasonably
satisfactory to the Administrative Agent.
“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 Company or any 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 Company’s stockholders, partners or members (or the equivalent
Person thereof), including any normal-course issuer bids by the Company.
“Restricted Subsidiary” means any Subsidiary
other than an Unrestricted Subsidiary.
“Revaluation Date”
means (a) with respect to any Revolving Loan, each of the following: (i) each date of a Borrowing of an Alternative Currency
Loan or a Canadian Prime Rate Loan, (ii) each date of a continuation of an Alternative Currency Term Rate Loan or a Canadian Prime
Rate Loan pursuant to Section 2.02, (iii) with respect to any Canadian Prime Rate Loan or any Alternative Currency Daily
Rate Loan, each Interest Payment Date, and (iv) such additional dates as the Administrative Agent shall determine or the Required
Revolving Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance
or extension of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit
having the effect of increasing the amount thereof, (iii) each date of any payment by the applicable L/C Issuer under any Letter
of Credit denominated in an Alternative Currency, (iv) in the case of all Existing Letters of Credit denominated in Alternative Currencies,
the Closing Date, and (v) such additional dates as the Administrative Agent or the applicable L/C Issuer shall determine or the Required
Revolving Lenders shall require.
48
“Revolving Commitment”
means, as to each Lender, its obligation to (a) make Revolving Loans to the Borrowers pursuant to Section 2.01(a), (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the applicable Dollar amount set forth opposite such Lender’s name on Schedule 2.01 or in
the Assignment and Assumption or other documentation pursuant to which such Lender becomes a party hereto or in any documentation executed
by such Lender in connection with an Incremental Facility, as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement. Revolving Commitments shall include any Incremental Revolving Increase.
“Revolving Credit
Exposure” means, as to any Lender at any time, the aggregate Outstanding Amount at such time of its Revolving Loans and the
aggregate Outstanding Amount of such Lender’s participation in L/C Obligations and Swing Line Loans at such time.
“Revolving Facility” means the revolving
facility established pursuant to Section 2.01(a).
“Revolving Lender”
means, at any time, a Lender that has a Revolving Commitment, outstanding Revolving Loans or participation interests in outstanding L/C
Obligations and Swing Line Loans at such time.
“Revolving Loan” has the meaning specified
in Section 2.01(a).
“S&P”
means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc. and any successor thereto.
“Sale and Leaseback
Transaction” means, with respect to the Company or any Restricted Subsidiary, any arrangement, directly or indirectly, with
any Person whereby the Company or such Restricted Subsidiary shall sell or transfer any property used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially
the same purpose or purposes as the property being sold or transferred.
“Same Day Funds”
means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements
and payments in an Alternative Currency, same day or other funds as may be determined by the Administrative Agent or the applicable L/C
Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions
in the relevant Alternative Currency.
“Sanction(s)”
means any sanction administered or enforced by the United States Government (including without limitation, OFAC), the Canadian Government,
the United Nations Security Council, the European Union, the United Kingdom’s Foreign, Commonwealth and Development Office (“FCDO”)
or other relevant sanctions authority.
“SEC” means
the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Second Amendment”
means the Second Amendment to this Agreement dated as of the Second Amendment Effective Date.
“Second Amendment Effective Date” means
April 27, 2026.
49
“Secured Cash Management
Agreement” means any Cash Management Agreement between any Loan Party or any Subsidiary and any Cash Management Bank. For the
avoidance of doubt, a holder of Obligations in respect of Secured Cash Management Agreements shall be subject to the provisions of the
last paragraph of Section 8.03 and the provisions of Section 9.11.
“Secured Parties”
means, collectively, the Administrative Agent, the Lenders (including Designated Lenders), the L/C Issuers, the Cash Management Banks,
the Hedge Banks, the Indemnitees, each receiver and/or manager appointed under any Collateral Document and each agent, co-agent, sub-agent,
attorneys, delegate or co-trustee appointed by the Administrative Agent from time to time pursuant to Section 9.05 or any
receivers and managers and administrative receivers of the whole or any part of the Collateral.
“Secured Party Designation
Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit K.
“Secured Swap Contract”
means any Swap Contract between any Loan Party or any Subsidiary and any Hedge Bank. For the avoidance of doubt, a holder of Obligations
in respect of a Secured Swap Contract shall be subject to the provisions of the last paragraph of Section 8.03 and the provisions
of Section 9.11.
“Securitization Transaction”
means any transaction providing for the sale, securitization or other asset-backed financing of Securitized Assets of or owing to the
Company or any Restricted Subsidiary (and/or contractual rights relating thereto). The terms and conditions of all Securitization Transactions
shall be on an arm’s length basis and on commercially reasonable and customary terms (except any interim transfer or sale to an
Unrestricted Subsidiary made in the course of a Securitization Transaction which results in a sale, securitization or other asset-backed
financing by such Unrestricted Subsidiary on an arm’s length basis and on commercially reasonable and customary terms). Except to
the extent mandated under any then-existing Securitization Transaction, no new assets may become Securitized Assets during the occurrence
and continuance of a Default.
“Securitized Assets”
means (a) with respect to the Specified Receivables Purchase Agreement, the assets subject to sale under such agreement and (b) with
respect to any Securitization Transaction, the assets securitized under such transaction and contributed or transferred to a Special Purpose
Subsidiary pursuant thereto, including:
(i) any
Securitized Receivable;
(ii) the
interest of the Company or any Restricted Subsidiary in any goods (including returned goods), and documentation of title evidencing the
shipment or storage of any goods (including returned goods) relating to any sale by the Company or any Restricted Subsidiary giving rise
to such Securitized Receivable;
(iii) all
guarantees, indemnities, letters of credit, insurance and other agreements (including any and all contracts, understandings, instruments,
agreements, leases, invoices, notes or other writings pursuant to which such Securitized Receivable arises or which evidences such Securitized
Receivable or under which the applicable customer becomes or is obligated to make payment to the Company or any Restricted Subsidiary
in respect of such Securitized Receivable) or arrangements of whatever character from time to time supporting or securing payment of such
Securitized Receivable;
50
(iv) all
collections and other proceeds received and payment or application by the Company or a Restricted Subsidiary of any amounts owed in respect
of Securitized Receivables, including, without limitation, purchase price, finance charges, interests, and other similar charges which
are net proceeds of the sale or other disposition of repossessed goods or other collateral or property available to be applied thereon;
and
(v) all
proceeds of, and all amounts received or receivable under, any or all
of the foregoing clauses (i) through (iv).
“Securitized Receivable”
means an account receivable arising from a sale of goods by the Company or a Restricted Subsidiary which is the subject of (a) a
Securitization Transaction or (b) the Specified Receivables Purchase Agreement.
“Security Agreements”
means, collectively, (a) the U.S. Security Agreements, (b) the Canadian Security Agreement, (c) any other pledge and/or
security agreement dated on or after the Closing Date executed in favor of the Administrative Agent, for the benefit of the Secured Parties
(or in its own name as creditor of Parallel Debt, as applicable), by any Non-U.S. Obligor and (d) solely to the extent executed and
delivered in accordance with the Existing Credit Agreement and not amended and restated or replaced (and not otherwise terminated or released)
in connection with the amendment and restatement of the Existing Credit Agreement hereunder, any other pledge and/or security agreement
dated on or after the Original Closing Date executed in favor of the Administrative Agent, for the benefit of the Secured Parties (or
in its own name as creditor of Parallel Debt, as applicable), by any U.S. Obligor or Non-U.S. Obligor and reaffirmed (including by virtue
of Section 10.25(a)(iv) (Amendment and Restatement of Existing Credit Agreement)) on the Closing Date.
“Singapore Entity”
means a company incorporated in Singapore or a foreign company with a substantial connection to Singapore in accordance with Section 246
of the Singapore IRDA.
“Singapore IRDA”
means the Insolvency, Restructuring and Dissolution Act 2018 (No. 40 of 2018) of Singapore.
“SOFR”
means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
“Solvent”
and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value
of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, which
for this purpose shall include rights of contribution in respect of obligations for which such Person has provided a Guarantee, (b) the
present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured, which for this purpose shall include rights of contribution in respect
of obligations for which such Person has provided a Guarantee, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is
not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property
would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations
and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed
as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.
“SONIA”
means, with respect to any applicable determination date, the Sterling Overnight Index Average Reference Rate published on the fifth
(5th) Business Day preceding such date on the applicable Reuters screen page (or such other commercially available source
providing such quotations as may be designated by the Administrative Agent from time to time); provided however that if such determination
date is not a Business Day, SONIA means such rate that applied on the first Business Day immediately prior thereto.
51
“Spanish Civil Code”
means the Spanish Royal Decree of 24 July 1889 publishing the Spanish Common Civil Code (“Código Civil”).
“Spanish Civil Procedural
Act” means the Spanish Law 1/2000 of 7 January (“Ley de Enjuiciamiento Civil”).
“Spanish Companies
Law” means Spanish Royal Legislative Decree 1/2010, of 2 July, approving the Spanish Capital Companies Law (“Ley de
Sociedades de Capital”).
“Spanish Guarantor”
means any Guarantor incorporated or otherwise organized under the laws of Spain (or any political subdivision thereof).
“Spanish Insolvency
Law” means the Spanish Royal Legislative Decree 1/2020, of 5 May, approving the consolidated text of the Insolvency Law (“Texto
Refundido de la Ley Concursal”), as amended from time to time and in particular, without limitation, by Law 16/2022, of 5 September,
amending the consolidated text of the Insolvency Law.
“Spanish Public Document”
means a Spanish “documento público” of those regulated by Articles 1216 et seq of the Spanish Civil Code, being
an “escritura pública”, “póliza” or “efecto intervenido por federatario público”.
“Special Notice Currency”
means at any time an Alternative Currency, other than the currency of a country that is a member of the Organization for Economic Cooperation
and Development at such time located in North America or Europe.
“Special Purpose
Subsidiary” means, with respect to any Permitted Securitization Transaction, the special purpose Subsidiary or Affiliate for
such Permitted Securitization Transaction.
“Specified Loan Party” has the meaning
specified in Section 11.08(a).
“Specified Local
Facility” means any overdraft, working capital, letter of credit or other facility or extension of credit provided by Bank of
America or any of its Affiliates to any Non-U.S. Subsidiary.
“Specified Non-U.S. Borrower” means any
Non-U.S. Borrower that is a Specified Subsidiary.
“Specified Non-U.S. Loan Party” has the
meaning specified in Section 11.08(b).
“Specified Non-U.S. Obligor” means any
Non-U.S. Obligor that is a Specified Subsidiary.
“Specified Receivables
Purchase Agreement” means that certain Revolving Trade Receivables Purchase Agreement, dated as of March 6, 2020 (as amended
prior to the Second Amendment Effective Date), among the Company, Celestica LLC, Celestica Holdings Pte Ltd, Celestica Hong Kong Ltd.,
Celestica (Romania) S.R.L., Celestica Japan KK, Celestica Oregon LLC, Celestica Electronics (M) Sdn. Bhd., Celestica Precision Machining
Ltd., Celestica International LP, the other parties party thereto and Credit Agricole Corporate and Investment Bank, New York Branch,
and any replacement agreement thereof the terms and provisions of which are not materially more adverse, taken as a whole, to the Lenders
than those of such Revolving Trade Receivables and Purchase Agreement. For the avoidance of doubt, no amendment to increase the “Maximum
Facility Amount” set forth therein and/or to add additional “Sellers” thereunder shall be considered materially more
adverse, taken as a whole, to the Lenders.
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“Specified Representations”
means the representations and warranties made in Sections 5.01(a) (solely as to the valid existence of the Loan Parties)
and (b)(ii) (as it relates to a Loan Party), Section 5.02(a), Section 5.02(b)(i) and (b)(iii) (in
each case, as it pertains to the execution, delivery and performance of the Loan Documents, and the granting of guarantees and security
interests in respect thereof), Section 5.04, Section 5.14(a) (as it pertains to the use of proceeds of any
Credit Extension hereunder), Section 5.14(b), Section 5.19 (after giving effect to the transactions contemplated
hereunder to be consummated on the Closing Date, including the initial Credit Extensions hereunder), Section 5.22, Section 5.23
and Section 5.24.
“Specified Subsidiary” means any Subsidiary
that is a CFC or a CFC Holdco.
“Specified Transaction”
means any Acquisition, any Disposition, any Investment, any incurrence of Indebtedness or any other event that by the terms of the Loan
Documents requires compliance on a Pro Forma Basis with a test or covenant, calculation as to Pro Forma Effect with respect to a financial
definition, test or covenant or requires such financial definition, test or covenant to be calculated on a Pro Forma Basis.
“Specified U.S. Obligor” means any U.S.
Obligor that is a Specified Subsidiary.
“Specified U.S. Security
Agreement” means the Amended and Restated Specified U.S. Security and Pledge Agreement, dated as of the Closing Date, executed
in favor of the Administrative Agent, for the benefit of the Secured Parties, by the Loan Parties that are Specified U.S. Obligors.
“SPT” has the meaning specified in Section 2.21.
“Sterling” and “£” mean
the lawful currency of the United Kingdom.
“Subordinated Indebtedness”
means Indebtedness of the Company or any Restricted Subsidiary that by its terms is subordinated to the Obligations in a manner and to
an extent reasonably acceptable to the Administrative Agent (including, without limitation, the entry into of an intercreditor and/or
subordination agreement generally acceptable to the Administrative Agent).
“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability company, exempted 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, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to
a Subsidiary or Subsidiaries of the Company.
“Successor Rate” has the meaning specified
in Section 3.07.
“Sustainability Coordinator
Resignation Effective Date” has the meaning specified in Section 10.27.
53
“Sustainability
Coordinators” means, collectively, (a) as of the Closing Date, each of BofA Securities, Canadian Imperial Bank of Commerce
(or any of its designated affiliates), and Crédit Agricole Corporate and Investment Bank (Canada Branch) (or any of its designated
affiliates) and (b) each other Lender (or Affiliate of a Lender) that is appointed as a successor sustainability coordinator pursuant
to Section 10.27.
“Sustainability Linked
Loan Principles” means the Sustainability Linked Loan Principles (as published from time to time by the Loan Market Association,
Asia Pacific Loan Market Association and Loan Syndications & Trading Association).
“Swap Contract”
means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options
or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions,
cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter
into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and
all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form
of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.
“Swap Obligation”
means with respect to any Loan Party any obligation to pay or perform under any agreement, contract or transaction that constitutes a
“swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swap Termination
Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based
upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may
include a Lender or any Affiliate of a Lender).
“SWIFT” has the meaning specified in Section 2.03(f).
“Swing Line Borrowing” means a borrowing
of a Swing Line Loan pursuant to Section 2.05.
“Swing Line Lender”
means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“Swing Line Loan” has the meaning specified
in Section 2.05(a).
“Swing Line Loan
Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.05(b), which shall be substantially in the
form of Exhibit B or such other form as approved by the Administrative Agent (including any form on an electronic platform
or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible
Officer of the Company.
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“Swing Line Sublimit”
means an amount equal to the lesser of (a) $100,000,000 and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
“Synthetic Lease
Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of
such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without
regard to accounting treatment).
“T2” means
the real time gross settlement system operated by the Eurosystem, or any successor system.
“TARGET Day” means any day on which T2
is open for the settlement of payments in Euro.
“Taxes”
means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees
or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term A Loan” has the meaning specified
in Section 2.01.
“Term A Loan Commitment”
means, as to each Lender, its obligation to make its portion of the Term A Loan to the Company on the Second Amendment Effective Date
pursuant to Section 2.01(c), in the principal amount set forth opposite such Lender’s name on Schedule 2.01 as
in effect on the Second Amendment Effective Date. The aggregate principal amount of the Term A Loan Commitments of all of the Lenders
as in effect on the Second Amendment Effective Date is TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000).
“Term B Loan” has the meaning specified
in Section 2.01.
“Term B Loan Commitment”
means, as to each Lender, its obligation to make its portion of the Term B Loan to the Company on the Closing Date pursuant to Section 2.01(b),
in the principal amount set forth opposite such Lender’s name on Schedule 2.01 as in effect on the Closing Date. The aggregate
principal amount of the Term B Loan Commitments of all of the Lenders as in effect on the Closing Date is FIVE HUNDRED MILLION DOLLARS
($500,000,000).
“Term CORRA Adjustment”
means 0.29547% (29.547 basis points) for an Interest Period of one-month’s duration and 0.32138% (32.138 basis points) for an Interest
Period of three-months’ duration.
“Term CORRA Rate”
has the meaning specified in the definition of “Alternative Currency Term Rate”.
“Term Facility” means the Term B Loan,
the Term A Loan and any Incremental Term Facilities.
“Term Loans” means the Term B Loan, the
Term A Loan and any Incremental Term Loans.
“Term SOFR” means:
(a) for
any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two (2) U.S. Government Securities Business Days prior to the commencement of such Interest Period
with a term equivalent to such Interest Period;
55
provided that if the rate is
not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first (1st)
U.S. Government Securities Business Day immediately prior thereto; and
(b) for
any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate two (2) U.S. Government Securities Business Days prior to such date with a term of one
month commencing that day; provided that if the rate is not published prior to 11:00 a.m. on such determination date then
Term SOFR means the Term SOFR Screen Rate on the first (1st) U.S. Government Securities Business Day immediately prior thereto;
provided that if Term SOFR determined in
accordance with either of the foregoing provisions (a) or (b) of this definition would otherwise be less than zero, Term SOFR
shall be deemed zero for purposes of this Agreement.
“Term SOFR Loan”
means a Loan that is denominated in Dollars and that bears interest at a rate based on clause (a) of the definition of “Term
SOFR”.
“Term SOFR Replacement Date” has the meaning
specified in Section 3.07(c).
“Term SOFR Scheduled Unavailability Date”
has the meaning specified in Section 3.07(c).
“Term SOFR Screen
Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Administrative
Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations
as may be designated by the Administrative Agent from time to time).
“Term SOFR Successor Rate” has the meaning
specified in Section 3.07(c).
“Threshold Amount” means $150,000,000.
“Toronto Property”
means the real property previously owned by Celestica International Inc. located at 844 Don Mills Road, 1150 Eglinton Avenue East and
1155 Eglinton Avenue East, in Toronto, Canada.
“Total Credit Exposure”
means, as to any Lender at any time, the unused Commitments of such Lender at such time, the outstanding Loans of such Lender at such
time and such Lender’s participations in L/C Obligations and Swing Line Loans at such time.
“Total Revolving
Outstandings” means the aggregate Outstanding Amount of all Revolving Loans, all Swing Line Loans and all L/C Obligations.
“Trade Date” has the meaning specified
in Section 10.06(h)(i).
“Type”
means, with respect to a Loan, its character as a Base Rate Loan, a Term SOFR Loan, an Alternative Currency Daily Rate Loan, an Alternative
Currency Term Rate Loan or a Canadian Prime Rate Loan.
“U.K. Financial Institution”
means any bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution
which is subject to any of the powers under any Bail-In Legislation of the United Kingdom.
56
“U.K. Resolution
Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of
any U.K. Financial Institution.
“U.S. Borrowers” has the meaning specified
in the introductory paragraph hereto.
“U.S. Government
Securities Business Day” means any Business Day, except any Business Day on which any of the Securities Industry and Financial
Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is
a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.
“U.S. Guarantors”
means, collectively, (a) each U.S. Subsidiary identified as a “U.S. Guarantor” on the signature pages hereto, (b) each
other U.S. Subsidiary that joins as a U.S. Guarantor pursuant to Section 6.14 or otherwise, (c) with respect to Additional
Secured Obligations owing by the Company or any Subsidiary under the Guaranty, each U.S. Borrower that is not a Specified U.S. Obligor,
and (d) the successors and permitted assigns of each of the foregoing to the extent that any such successor or permitted assign is
a U.S. Subsidiary, and, in the case of clause (c), not a CFC or CFC Holdco.
“U.S. Obligor”
means any Loan Party that is organized under the laws of the United States, a state thereof or the District of Columbia.
“U.S. Person”
means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Person (Outbound
Investments)” means any United States citizen, lawful permanent resident, Person organized under the laws of the United States
or any jurisdiction within the United States, including any foreign branch of any such entity, or any Person in the United States.
“U.S. Security Agreements”
means, collectively, the Domestic U.S. Security Agreement and the Specified U.S. Security Agreement.
“U.S. Subsidiary”
means any Subsidiary that is organized under the laws of the United States, a state thereof or the District of Columbia.
“U.S. Tax Compliance Certificate” has
the meaning specified in Section 3.01(e)(ii)(B)(3).
“UCC” means
the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or
non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time
in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or
priority.
“UCP” means,
with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce
(“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
“United States” and “U.S.”
mean the United States of America.
“Unreimbursed Amount” has the meaning
specified in Section 2.03(c)(i).
57
“Unrestricted Subsidiary”
means, collectively, (a) each Subsidiary identified as an Unrestricted Subsidiary on Schedule 5.13 delivered to the Administrative
Agent on the Second Amendment Effective Date and (b) each other Subsidiary designated by the Company as an Unrestricted Subsidiary
after the Second Amendment Effective Date pursuant to Section 6.20; provided that, for the avoidance of doubt, any
Unrestricted Subsidiary re-designated as a Restricted Subsidiary pursuant to Section 6.20 shall not constitute an Unrestricted
Subsidiary.
“Valencia Property”
means the real property owned by Celestica Valencia, S.A.U. located at Carratera Valencia Ademuz, Km 17.6, La Pobla de Vallbona, Valencia,
Spain.
“Voluntary Prepayment
Amount” has the meaning specified in the definition of “Incremental Amount”.
“Weighted Average
Life” means, when applied to any Indebtedness at any date of determination, the period of time (expressed in years) obtained
by dividing (a) the sum of the total of the products obtained by multiplying (i) the amount of each scheduled installment, sinking
fund, serial maturity or other required payment of principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse between such date of determination and the making of such payment
by (b) the then outstanding principal amount of such Indebtedness as of such date of determination.
“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, (b) with respect to the United Kingdom, any powers of the applicable Resolution
Authority under the applicable Bail-In Legislation to cancel, transfer or dilute shares issued by a U.K. Financial Institution or any
affiliate thereof, to cancel, reduce, modify or change the form of a liability of any U.K. 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 applicable Bail-In Legislation that are related to or ancillary
to any of those powers, and (c) in relation to any other applicable Bail-In Legislation: (i) any powers under that Bail-In Legislation
to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate
of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person
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; and (ii) any similar or analogous powers under that Bail-In Legislation.
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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 Loan Document or Organization Document)
shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, 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 or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified,
extended, restated, replaced or supplemented from time to time, and (vi) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.
(b) In
the computation of periods of time from a specified date to a later specified date, the word “from” means “from
and including;” the words “to” and “until” each mean “to but excluding;” and
the word “through” means “to and including.”
(c) Section headings
herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this
Agreement or any other Loan Document.
(d) Without
prejudice to the generality of any provision of this Agreement, for all other purposes pursuant to which the interpretation or construction
of this Agreement, any Collateral Document or any other Loan Document may be subject to the laws of the Province of Quebec or a court
or tribunal exercising jurisdiction in the Province of Quebec, (i) “personal property” shall be deemed to include “movable
property”, (ii) “real property” shall be deemed to include “immovable property” and an “easement”
shall be deemed to include a “servitude”, (iii) “tangible property” shall be deemed to include “corporeal
property”, (iv) “intangible property” shall be deemed to include “incorporeal property”, (v) “security
interest”, “lien”, “mortgage” and “charge” shall be deemed to include a “hypothec”,
(vi) all references to filing, registering or recording financing statements shall be deemed to include publication under the Civil
Code of Quebec, and all references to releasing any lien shall be deemed to include a release, discharge and mainlevée of a hypothec,
(vii) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right
of compensation”, (viii) “goods” shall be deemed to include “corporeal movable property” other than
chattel paper, documents of title, instruments, money and securities, (ix) an “agent” shall be deemed to include a “mandatary”
and (x) “deposit account” or “bank account” shall include “financial accounts” (as defined in
the Civil Code of Quebec) maintained by a bank.
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(e) For
purposes of this Agreement and the other Loan Documents (other than Articles II, IX and X of this Agreement), where
the permissibility of any transaction or the determination of any required action or circumstance, in each case under or with respect
to any Security Agreement that makes reference to this provision and is governed by the law of a jurisdiction other than the United States,
a state thereof or the District of Columbia, depends upon compliance with, or is determined by reference to, amounts stated in Dollars,
(i) such amounts shall be deemed to refer to Dollars and/or the equivalent amount thereof denominated in any currency other than
Dollars, as applicable, and (ii) any requisite currency translation shall, unless otherwise specified, be based on the Dollar Equivalent
of such amount. The provisions of any such Security Agreement shall be subject to such reasonable changes of construction as the Administrative
Agent may from time to time specify with the Company’s consent (not to be unreasonably withheld) to appropriately reflect a change
in currency of any country and any relevant market conventions or practices relating to such change in currency, in each case as it relates
to such Security Agreement.
(f) Any
provision of Section 5.22, Section 6.16 or Section 7.16 shall not apply to or in favor of any Person
if and to the extent that it would result in a breach, by or in respect of that Person, of any applicable Blocking Law.
(g) Any
reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall
be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company
(or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale,
disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company
shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or
any other like term shall also constitute such a Person or entity).
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, the Applicable Accounting Standard as in effect on such date applied on a consistent basis, as in effect from time to time, and
in the case of any accounting term or financial data (i) prior to the delivery of the first audited financial statements required
to be delivered after the Accounting Change Date, applied in a manner consistent with that used in preparing the Audited Financial Statements,
except as it relates to the Company’s adoption of IFRS 15 and IFRS 9 effective January 1, 2018, and (ii) on or
after the delivery of the first audited financial statements required to be delivered after the Accounting Change Date, applied in a
manner consistent with that used in preparing the GAAP Adjusted Annual Financial Statements, and, in each case, except as otherwise
specifically prescribed herein. Notwithstanding anything to the contrary in the foregoing, (i) for purposes of determining compliance
with any covenant (including the computation of any financial covenant set forth in Section 7.11) contained herein, Indebtedness
of the Company and its Subsidiaries shall be deemed to be carried at one hundred percent (100%) of the outstanding principal amount thereof
(and, from and after the delivery of the first audited financial statements to be delivered after the Accounting Change Date), the effects
of FASB ASC 825 and FASB ASC 470–20 on financial liabilities shall be disregarded and (ii) for all purposes of this Agreement
and the other Loan Documents, the aggregate principal amount of the Term B Loan will be calculated on the basis of the full stated principal
amount thereof (without giving effect to any original issue discount with respect to the Term B Loan). Notwithstanding anything to the
contrary set forth herein, with respect to determining the permissibility of the incurrence of any Indebtedness, the proceeds of such
Indebtedness shall not constitute Qualified Cash for purposes of calculating the Consolidated First Lien Net Leverage Ratio, the Consolidated
Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio in connection therewith.
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(b) Changes
in the Applicable Accounting Standard. If at any time any change in the Applicable Accounting Standard would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Company or the Required Lenders (or, in the case
of a change affecting the computation of only the Consolidated Interest Coverage Ratio, the Consolidated First Lien Net Leverage Ratio,
the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio, or any one or more of the four, the Required
Pro Rata Facilities Lenders) shall so request, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent thereof in light of such change in the Applicable Accounting Standard
(subject to the approval of the Required Lenders (or, in the case of a change affecting the computation of only the Consolidated Interest
Coverage Ratio, the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net
Leverage Ratio, or any one or more of the four, the Required Pro Rata Facilities Lenders)); provided that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with the Applicable Accounting Standard prior to such change therein
and (ii) the Company shall provide to the Administrative Agent and the Lenders financial statements and other documents required
under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement
made before and after giving effect to such change in the Applicable Accounting Standard. Without limiting the foregoing, (A) prior
to the delivery of the first audited financial statements to be delivered after the Accounting Change Date, leases shall continue to
be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements (subject to the exceptions
noted in clause (a) above) for all purposes of this Agreement, notwithstanding any change in IFRS relating thereto, unless
the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above, and (B) from
and after the delivery of the first audited financial statements to be delivered after the Accounting Change Date, all liability amounts
shall be determined excluding any liability relating to any operating lease, all asset amounts shall be determined excluding any right-of-use
assets relating to any operating lease, all amortization amounts shall be determined excluding any amortization of a right-of-use asset
relating to any operating lease, and all interest amounts shall be determined excluding any deemed interest comprising a portion of fixed
rent payable under any operating lease, in each case to the extent that such liability, asset, amortization or interest pertains to an
operating lease under which the covenantor or a member of its consolidated group is the lessee and would not have been accounted for
as such under GAAP as in effect on December 31, 2015.
1.04 Rounding.
Any financial ratios required to be maintained by the Company pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein
and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.05 Exchange
Rates; Currency Equivalents; Rates; Licensing.
(a) The
Administrative Agent or the applicable L/C Issuer, as applicable, shall determine the Dollar Equivalent amounts of Credit Extensions and
Outstanding Amounts denominated in Alternative Currencies. Such Dollar Equivalent shall become effective as of such Revaluation Date and
shall be the Dollar Equivalent of such amounts until the next Revaluation Date to occur. Except for purposes of financial statements delivered
by Loan Parties hereunder or calculating financial covenants set forth in Section 7.11 or except as otherwise provided herein,
the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as
so determined by the Administrative Agent or the applicable L/C Issuer, as applicable.
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(b) Wherever
in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of an Alternative Currency Loan or a Canadian
Prime Rate Loan, or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount,
is expressed in Dollars, but such Borrowing, Alternative Currency Loan, Canadian Prime Rate Loan or Letter of Credit is denominated in
an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest
unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the applicable
L/C Issuer, as the case may be.
(c) The
Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to
the administration, submission or any other matter related to any reference rate referred to herein or with respect to any rate (including,
for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternative or replacement
for or successor to any such rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or the
effect of any of the foregoing, or of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may
engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement
rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments
thereto, in each case, in a manner adverse to the Borrowers. The Administrative Agent may select information sources or services in its
reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including,
without limitation, any Successor Rate) (or any component of any of the foregoing), 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 other action or omission related to or affecting the selection, determination, or calculation of
any rate (or component thereof) provided by any such information source or service.
(d) By
agreeing to make Loans under this Agreement, each Lender is confirming it has all licenses, permits and approvals necessary for use of
the reference rates referred to herein and it will do all things necessary to comply, preserve, renew and keep in full force and effect
such licenses, permits and approvals.
1.06 Additional
Alternative Currencies.
(a) The
Company may from time to time request that Alternative Currency Loans be made and/or Letters of Credit be issued in a currency other than
those specifically listed in the definition of “Alternative Currency”; provided that such requested currency is an
Eligible Currency. In the case of any such request with respect to the making of Alternative Currency Loans, such request shall be subject
to the approval of the Administrative Agent and each Lender with a Commitment under which such currency is requested to be made available;
and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of
the Administrative Agent and the applicable L/C Issuer.
(b) Any
such request shall be made to the Administrative Agent not later than 11:00 a.m., twenty (20) Business Days prior to the date of the desired
Credit Extension (or such other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining
to Letters of Credit, the applicable L/C Issuer(s), in its or their sole discretion).
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In the case of any such request pertaining
to Alternative Currency Loans, the Administrative Agent shall promptly notify each applicable Lender thereof; and in the case of any such
request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the applicable L/C Issuer(s) thereof. Each
applicable Lender (in the case of any such request pertaining to Alternative Currency Loans) or the applicable L/C Issuer (in the case of a request pertaining to Letters of Credit) shall notify the Administrative
Agent, not later than 11:00 a.m., ten (10) Business Days after receipt of such request whether it consents, in its sole discretion,
to the making of Alternative Currency Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.
(c) Any
failure by a Lender or an L/C Issuer, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Lender or such L/C Issuer,
as the case may be, to permit Alternative Currency Loans to be made or Letters of Credit to be issued in such requested currency. If the
Administrative Agent and all the applicable Lenders consent to making Alternative Currency Loans in such requested currency and the Administrative
Agent and such Lenders reasonably determine that an appropriate interest rate is available to be used for such requested currency, the
Administrative Agent shall so notify the Company and (i) the Administrative Agent and such Lenders may amend the definition of “Alternative
Currency Daily Rate” or “Alternative Currency Term Rate”, as applicable, to the extent necessary to add the applicable
rate for such currency and any applicable adjustment for such rate and (ii) to the extent the definition of “Alternative Currency
Daily Rate” or “Alternative Currency Term Rate”, as applicable, has been amended to reflect the appropriate rate for
such currency, such currency shall thereupon be deemed for all purposes to be an Alternative Currency for purposes of any Borrowings of
Alternative Currency Loans. If the Administrative Agent and the applicable L/C Issuers consent to the issuance of Letters of Credit in
such requested currency, the Administrative Agent shall so notify the Company and (A) the Administrative Agent and the applicable
L/C Issuers may amend the definition of “Alternative Currency Daily Rate” or “Alternative Currency Term Rate”,
as applicable, to the extent necessary to add the applicable rate for such currency and any applicable adjustment for such rate and (B) to
the extent the definition of “Alternative Currency Daily Rate” or “Alternative Currency Term Rate”, as applicable,
has been amended to reflect the appropriate rate for such currency, such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder, for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent
to any request for an additional currency under this Section 1.06, the Administrative Agent shall promptly so notify the Company.
Any specified currency of an Existing Letter of Credit that is neither Dollars nor one of the Alternative Currencies specifically listed
in the definition of “Alternative Currency” shall be deemed an Alternative Currency with respect to such Existing Letter of
Credit only.
1.07 Change
of Currency.
(a) Each
obligation of the Borrowers to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the Closing Date shall be redenominated
into Euro at the time of such adoption. If, in relation to the currency of any such member state, the basis of accrual of interest expressed
in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the interbank market for the basis
of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from
the date on which such member state adopts the Euro as its lawful currency; provided that if any Borrowing in the currency of such
member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the
end of the then current Interest Period.
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(b) Each
provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time
specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions
or practices relating to the Euro.
(c) Each
provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time
to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices
relating to the change in currency.
1.08 Times
of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard,
as applicable).
1.09 Letter
of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar
Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to
any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases
in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
1.10 Limited
Condition Acquisition. It is understood and agreed that, notwithstanding anything to the contrary in this Agreement, if the proceeds
of any Incremental Term Facility or Additional Indebtedness are being used to finance a Limited Condition Acquisition, and the Company
has obtained commitments of lenders to fund such Incremental Term Facility (“Incremental Financing Commitments”) or
such Additional Indebtedness (“Additional Financing Commitments”, and together with the Incremental Financing Commitments,
the “Limited Condition Commitments”), then (a) the conditions set forth in Section 2.16(b), clauses
(i)(B)(1) and (i)(B)(2) of Section 2.16(f), Section 4.02(a), Section 4.02(b),
Section 7.03(h) and clause (a) in the definition of “Permitted Acquisition” shall be limited
as follows, if and to the extent such lenders so agree in their Limited Condition Commitments: (i) the conditions set forth in clauses
(i)(B)(1) and (i)(B)(2) of Section 2.16(f) and Section 4.02(a) shall be limited
such that the only representations and warranties the accuracy of which shall be a condition to the availability of such Incremental
Term Facility or such Additional Indebtedness shall be (A) the Specified Representations, and (B) such representations and
warranties under the definitive agreement governing such Limited Condition Acquisition (the “Limited Condition Acquisition Agreement”)
as entitle the applicable Loan Party (or the applicable Subsidiary) to terminate its obligations under such Limited Condition Acquisition
Agreement or decline to consummate such Limited Condition Acquisition, in each case, without paying any penalty or compensation to the
other party or incurring liability for breach if such representations and warranties fail to be true and correct, and (ii) the reference
in Section 2.16(b), Section 4.02(b), Section 7.03(h) and clause (a) in the definition
of “Permitted Acquisition” to no Default or no Event of Default, as applicable, means (A) no Default or no Event of
Default, as applicable, shall have occurred and be continuing at the time of the execution of the Limited Condition Acquisition Agreement,
and (B) no Event of Default under Section 8.01(a), 8.01(f) or 8.01(g) shall have occurred and
be continuing at the time of the funding of such Incremental Term Facility or such Additional Indebtedness in connection with the consummation
of such Limited Condition Acquisition, and (b) for purposes of determining whether the conditions set forth in Section 2.16(l),
Section 7.03(h) or clause (f) in the definition of “Permitted Acquisition” have been satisfied
in connection with such Limited Condition Acquisition, at the Company’s option (the Company’s election to exercise such option
in connection with any Limited Condition Acquisition, a “LCA Election”), the date of determination of whether any
such condition has been satisfied shall be deemed to be the date the applicable Limited Condition Acquisition Agreement is executed (the
“LCA Test Date”), and if, for the Limited Condition Acquisition and the funding of such Incremental Term Facility
or such Additional Indebtedness in connection with the consummation of such Limited Condition Acquisition, the Loan Party or the applicable
Subsidiary would have satisfied such condition on the relevant LCA Test Date, such condition shall be deemed to have been satisfied.
If the Company has made a LCA Election for any Limited Condition Acquisition, then in connection with any calculation of any ratio, test
or basket availability with respect to any Specified Transaction (each, a “Subsequent Transaction”) following the
relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated and the date that
the applicable Limited Condition Acquisition Agreement is terminated or expires without consummation of such Limited Condition Acquisition,
for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall
be calculated and tested both on (x) a Pro Forma Basis assuming such Limited Condition Acquisition and the other transactions in
connection therewith have been consummated until such time as the applicable Limited Condition Acquisition has actually closed or the
applicable Limited Condition Acquisition Agreement has been terminated or expires without consummation of such Limited Condition Acquisition,
and (y) a standalone basis without giving effect to such Limited Condition Acquisition and the other transactions in connection
therewith. It is understood and agreed that this Section 1.10 shall not limit the conditions set forth in Section 4.02
or in the definition of “Permitted Acquisition” with respect to any proposed Borrowing of Revolving Loans or Swing Line Loans
or any issuance of Letters of Credit, in each case, in connection with such Limited Condition Acquisition or otherwise.
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1.11 [Reserved].
1.12 Irish
Terms. In respect of any Irish Loan Party:
(a) “Dissolution”
of an Irish Loan Party includes such entity being struck off the Register of Companies in Ireland.
(b) An
“examiner” means an examiner (including any interim examiner) appointed under Part 10 of the Irish Companies Act
and examinership shall be construed accordingly.
(c) A
“process adviser” means a Person appointed or acting as a process adviser within the meaning of Section 558A(1) of
the Irish Companies Act.
(d) A
“rescue process” means the rescue process for small and micro companies contemplated by Part 10A of the Irish
Companies Act.
(e) An
Irish Loan Party being “unable to pay its debts” means that Person being unable to pay its debts within the meaning
of Sections 509(3) and 570 of the Irish Companies Act.
(f) A
reference to a Loan Party being “organized” under the laws of any jurisdiction shall be construed in the context of
an Irish Loan Party as being a reference to that Irish Loan Party being incorporated under the laws of Ireland.
1.13 Spanish
Terms. In respect of any Spanish Guarantor, a reference to:
(a) “financial
assistance” has the meaning stated under:
(i) Article 150
of the Spanish Companies Law for a Spanish public company (“Sociedad Anónima”) or in any other legal provision
that may substitute such Article 150 or be applicable to any Non-U.S. Obligor incorporated in Spain in respect of such financial
assistance; or
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(ii) Article 143
of the Spanish Companies Law for a Spanish limited liability company (“Sociedad de Responsabilidad Limitada”) or in
any other legal provision that may substitute such Article 143 or be applicable to any Non-U.S. Obligor incorporated in Spain in
respect of such financial assistance;
(b) “insolvency”
(“concurso” or any other equivalent legal proceeding) and any step or proceeding related to it has the meaning attributed
to them under the Spanish Insolvency Law and “insolvency proceeding” includes, without limitation, a “declaración
de concurso”, necessary or voluntary (“necesario o voluntario”) and the filing of the notice of initiation
of negotiations with creditors according to Articles 585 et seq. of the Spanish Insolvency Law;
(c) “winding-up,
administration or dissolution” includes, without limitation, “disolución”, “liquidación”,
or “administración concursal” or any other similar proceedings;
(d) “receiver,
administrative receiver, administrator” or the like includes, without limitation, “administración del concurso”,
“administrador concursal”, “liquidador”, “experto en la reestructuración”
or any other person performing the same function;
(e) “composition,
compromise, assignment or arrangement with any creditor” includes, without limitation, the celebration of a “convenio”
in the context of an insolvency proceeding or a restructuring plan (“plan de reestructuración”) according to
Articles 614 et seq. of the Spanish Insolvency Law;
(f) “person
being unable to pay its debts” includes that person being in a state of “insolvencia” or “concurso”
according to the Spanish Insolvency Law;
(g) “matured
obligation” includes, without limitation, any “crédito líquido, vencido y exigible”; and
(h) “security
interest or security” includes any mortgage (“hipoteca mobiliaria o inmobiliaria”), pledge (“prenda
con o sin desplazamiento posesorio”), “garantía financiera” and, in general, any right in rem (“garantia
real”) governed by Spanish law, created for the purpose of granting security.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Revolving
Loans, Term B Loan and Term A Loan.
(a) Revolving
Loans. Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make loans (each such loan,
a “Revolving Loan”) to the Borrowers or any of them in Dollars or in one or more Alternative Currencies from time to
time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such
Lender’s Revolving Commitment; provided, however, that after giving effect to any Borrowing of Revolving Loans:
(i) the
Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments;
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(ii) the
aggregate Outstanding Amount of the Revolving 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 Revolving Commitment;
(iii) the
aggregate Outstanding Amount of all Revolving Loans denominated in Alternative Currencies, other than Revolving Loans denominated in Canadian
Dollars, shall not exceed the Alternative Currency Sublimit;
(iv) the
aggregate Outstanding Amount of all Revolving Loans denominated in Canadian Dollars shall not exceed the Canadian Dollar Sublimit; and
(v) Revolving
Loans denominated in Canadian Dollars shall not be extended to any Borrower other than a Canadian Borrower.
Within the limits of each Lender’s
Revolving Commitment, and subject to the other terms and conditions hereof, each Borrower may borrow under this Section 2.01(a),
prepay under Section 2.06, and reborrow under this Section 2.01. Revolving Loans may be Base Rate Loans, Canadian
Prime Rate Loans, Term SOFR Loans, Alternative Currency Daily Rate Loans or Alternative Currency Term Rate Loans as further provided herein.
(b) Term
B Loan. Subject to the terms and conditions set forth herein, each Lender severally agrees to make its portion of a term loan (the
“Term B Loan”) to the Company in Dollars on the Closing Date in an amount not to exceed such Lender’s Term B
Loan Commitment. Amounts repaid on the Term B Loan may not be reborrowed. The Term B Loan may consist of Base Rate Loans or Term SOFR
Loans, or a combination thereof, as further provided herein; provided, however, any Borrowings made on the Closing Date
shall be made as Base Rate Loans unless the Company delivers a funding indemnity letter not less than three (3) Business Days prior
to the date of such Borrowing.
(c) Term
A Loan. Subject to the terms and conditions set forth herein, each Lender severally agrees to make its portion of a term loan (the
“Term A Loan”) to the Company in Dollars on the Second Amendment Effective Date in an amount not to exceed such Lender’s
Term A Loan Commitment. Amounts repaid on the Term A Loan may not be reborrowed. The Term A Loan may consist of Base Rate Loans or Term
SOFR Loans, or a combination thereof, as further provided herein.
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2.02 Borrowings,
Conversions and Continuations of Loans.
(a) Each
Borrowing, each conversion of Loans from one Type to another Type, and each continuation of Term SOFR Loans or Alternative Currency Term
Rate Loans shall be made upon a Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone
or (B) a Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative
Agent of a Loan Notice. Each such Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. (i) [reserved],
(ii) two (2) Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Term SOFR Loans,
or of any conversion of Term SOFR Loans to Base Rate Loans, (iii) four (4) Business Days (or five (5) Business Days in
the case of a Special Notice Currency) prior to the requested date of any Borrowing or continuation of Alternative Currency Loans, and
(iv) on the requested date of any Borrowing of Base Rate Loans or Canadian Prime Rate Loans. Each Borrowing of, conversion to or
continuation of Term SOFR Loans and Alternative Currency Loans shall be in a principal amount of the Dollar Equivalent of $1,000,000
or a whole multiple of the Dollar Equivalent of $1,000,000 in excess thereof. Except as provided in Sections 2.03(c), each Borrowing
of or conversion to Base Rate Loans or Canadian Prime Rate Loans shall be in a principal amount of the Dollar Equivalent $500,000 or
a whole multiple of the Dollar Equivalent of $100,000 in excess thereof. Each Loan Notice shall specify (i) whether the Company
is requesting a Borrowing, a conversion of Loans from one Type to another Type, or a continuation of Term SOFR Loans or Alternative Currency
Term Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business
Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or
to which existing Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto, (vi) the
currency of the Loans to be borrowed, and (vii) the applicable Borrower. If a Borrower fails to specify a currency in a Loan Notice
requesting a Borrowing, then the Loans so requested shall be made in Dollars. If a Borrower fails to specify a Type of Loan in a Loan
Notice or if a Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made
as, or converted to, Base Rate Loans; provided, however, that in the case of a failure to timely request a continuation
of Loans denominated in (x) Canadian Dollars, such Loans shall be continued as (or converted into) Canadian Prime Rate Loans or
(y) an Alternative Currency (other than Canadian Dollars), then to the extent such Loans denominated in such currency will bear
interest at an Alternative Currency Term Rate, such Loans shall be continued as Alternative Currency Term Rate Loans in their original
currency with an Interest Period of one (1) month. Any automatic conversion to Base Rate Loans or Canadian Prime Rate Loans shall
be effective as of the last day of the Interest Period then in effect with respect to the applicable Term SOFR Loans or Alternative Currency
Term Rate Loans. If a Borrower requests a Borrowing of, conversion to, or continuation of Term SOFR Loans or Alternative Currency Term
Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of
one (1) month. Except as provided in Section 2.13(a), no Loan may be converted into or continued as a Loan denominated
in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currency.
(b) Following
receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount (and currency) of its Applicable Percentage
of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the applicable Borrower, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or Canadian Prime Rate Loans or continuation
of Alternative Currency Term Rate Loans, in each case as described in the preceding subsection. In the case of a Borrowing, each Lender
shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office
for the applicable currency not later than 1:00 p.m., in the case of any Loan denominated in Dollars, and not later than the Applicable
Time specified by the Administrative Agent in the case of any Loan denominated in an Alternative Currency, in each case on the Business
Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and,
if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received
available to the applicable Borrower in like funds as received by the Administrative Agent either by, as directed by such Borrower, (i) crediting
the account of such Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds,
in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by such Borrower; provided,
however, that if, on the date the Loan Notice with respect to such Borrowing denominated in Dollars is given by a 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 applicable Borrower as provided above.
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(c) Except
as otherwise provided herein, a Term SOFR Loan and an Alternative Currency Term Rate Loan may be continued or converted only on the last
day of an Interest Period for such Term SOFR Loan or Alternative Currency Term Rate Loan. During the existence of a Default, no Loans
may be requested as, converted to or continued as Term SOFR Loans or Alternative Currency Term Rate Loans without the consent of the Required
Lenders, and the Required Lenders may demand that any or all of the then outstanding Alternative Currency Term Rate Loans be prepaid,
or redenominated into Dollars in the amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with
respect thereto.
(d) The
Administrative Agent shall promptly notify the Company and the Lenders of the interest rate applicable to any Interest Period for Term
SOFR Loans or Alternative Currency Term Rate Loans upon determination of such interest rate.
(e) After
giving effect to all Borrowings, all conversions of Revolving Loans and Term Loans from one Type to another Type, and all continuations
of Revolving Loans and Term Loans as the same Type, there shall not be more than ten Interest Periods in effect.
(f) Notwithstanding
anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection
with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless
settlement mechanism approved by the Company, the Administrative Agent, and such Lender.
(g) With
respect to any Alternative Currency Daily Rate, Alternative Currency Term Rate, SOFR or Term SOFR, the Administrative Agent will have
the right to make Conforming Changes from time to time in consultation with the Borrowers 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; provided that, with respect to any such amendment effected,
the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrowers and the Lenders reasonably
promptly after such amendment becomes effective.
2.03 Letters
of Credit.
(a) The
Letter of Credit Commitment.
(i) Subject
to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Lenders
set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until
the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for
the account of the Company or any Restricted Subsidiary, 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 Revolving Lenders severally agree to
participate in Letters of Credit issued for the account of the Company and any drawings thereunder; provided that after giving
effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the
Aggregate Revolving Commitments, (y) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving
Commitment and (z) the aggregate Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each
request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that
the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving,
and accordingly the Company 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 deemed
L/C Obligations, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) No
L/C Issuer shall issue any Letter of Credit, if:
(A) subject
to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve (12) months after
the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date;
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(B) the
expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Lenders
have approved such expiry date; or
(C) the
beneficiary of the requested Letter of Credit is either (1) a resident in Ireland or (2) a legal person, the place of establishment
to which the requested Letter of Credit relates is in Ireland, in each case unless such L/C Issuer is either (x) authorized under
the laws of Ireland to issue Letters of Credit to any such beneficiary or (y) exempted under the laws of Ireland from the requirement
referenced in the immediately preceding clause (x) from the requirement to obtain such authorization.
(iii) No
L/C Issuer shall 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 such L/C Issuer from issuing such Letter of Credit, or any Law applicable
to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction
over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit or related bankers’
acceptances generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which such L/C Issuer in good faith deems material to it;
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(B) the
issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except
as otherwise agreed by the Administrative Agent and such L/C Issuer, the Letter of Credit is in an initial stated amount less than the
Dollar Equivalent of $100,000, in the case of a commercial Letter of Credit, or $250,000, in the case of a standby Letter of Credit (or,
in each case, such lesser amount as such L/C Issuer may agree in its sole discretion);
(D) except
as otherwise agreed by the Administrative Agent and such L/C Issuer, the Letter of Credit is to be denominated in a currency other than
Dollars or an Alternative Currency;
(E) such
L/C Issuer does not as of the issuance date of the requested Letter of Credit issue Letters of Credit in the requested currency; or
(F) any
Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral,
satisfactory to such L/C Issuer (in its sole discretion) with the Company or such Lender to eliminate such 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 such L/C Issuer
has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) No
L/C Issuer shall amend any Letter of Credit if such 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) No
L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such 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) Each
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 each 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 such 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 such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided
herein with respect to such L/C Issuer.
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(b) Procedures
for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each
Letter of Credit shall be issued or amended, as the case may be, upon the request of the Company delivered to the applicable L/C Issuer
(with a copy to the Administrative Agent, if Bank of America is not the applicable L/C Issuer) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the Company. Such Letter of Credit Application may be sent by facsimile,
by United States mail or Canada Post, by overnight courier, by electronic transmission using the system provided by such L/C Issuer,
by personal delivery or by any other means acceptable to such L/C Issuer. Such Letter of Credit Application must be received by the applicable
L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or such later date and time
as the Administrative Agent and such 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 reasonably satisfactory to the applicable L/C Issuer: (A) the proposed issuance
date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof (and in the absence
of specification of currency, shall be deemed a request for a Letter of Credit denominated in Dollars); (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be 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 such 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 reasonably
satisfactory to such 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 such L/C Issuer may require. Additionally,
the Company shall furnish to such 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 such L/C Issuer or the Administrative Agent may require.
(ii) Promptly
after receipt of any Letter of Credit Application, the applicable 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 Company and, if not, such
L/C Issuer will provide the Administrative Agent with a copy thereof. Unless such 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, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Company
(or the applicable Restricted Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with
such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from such 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.
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(iii) If
the Company so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole discretion, agree
to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such extension at least once
in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary
thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon
at the time such Letter of Credit is issued. Unless otherwise directed by such L/C Issuer, the Company shall not be required to make
a specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall
be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any
time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that such L/C Issuer shall
not permit any such extension if (A) such L/C Issuer has determined that it would not be permitted, or would have no obligation,
at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of
clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which
may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from
the Administrative Agent that the Required Revolving Lenders have elected not to permit such extension or (2) from the Administrative
Agent, any Lender or the Company that one or more of the applicable conditions specified in Section 4.02 is not then satisfied,
and in each case directing such L/C Issuer not to permit such extension.
(iv) If
the Company so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole discretion, agree to
issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder
(each, an “Auto-Reinstatement Letter of Credit”). Unless otherwise directed by such L/C Issuer, the Company shall not
be required to make a specific request to the applicable L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of
Credit has been issued, except as provided in the following sentence, the Lenders shall be deemed to have authorized (but may not require)
the applicable L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter
of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the applicable L/C Issuer to decline to
reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within
a specified number of days after such drawing (the “Non-Reinstatement Deadline”), such L/C Issuer shall not permit
such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is seven (7) Business
Days before the Non-Reinstatement Deadline (A) from the Administrative Agent that the Required Revolving Lenders have elected not
to permit such reinstatement or (B) from the Administrative Agent, any Lender or the Company that one or more of the applicable conditions
specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this
clause) and, in each case, directing such L/C Issuer not to permit such reinstatement.
(v) 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 applicable L/C Issuer will also deliver to the Company and the Administrative Agent a true and complete copy of such Letter
of Credit or amendment.
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(c) Drawings
and Reimbursements; Funding of Participations.
(i) Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer
shall notify the Company and the Administrative Agent thereof. In the case of a Letter of Credit denominated in an Alternative Currency,
the Company shall reimburse such L/C Issuer in such Alternative Currency, unless (A) the applicable L/C Issuer (at its option) shall
have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement
in Dollars, the Company shall have notified such L/C Issuer promptly following receipt of the notice of drawing that the Company will
reimburse such L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated
in an Alternative Currency, the applicable L/C Issuer shall notify the Company of the Dollar Equivalent of the amount of the drawing
promptly following the determination thereof. If the Company is notified prior to 11:00 a.m. on the date of any payment by an L/C
Issuer under a Letter of Credit to be reimbursed in Dollars, or prior to the Applicable Time on the date of any payment by an L/C Issuer
under a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an “Honor Date”), the Company
shall reimburse the applicable L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the
applicable currency on such date (or, if notified after such time, then no later than 11:00 a.m. on the next succeeding Business
Day with respect to any payment by the applicable L/C Issuer under a Letter of Credit to be reimbursed in Dollars or the Applicable Time
on the next succeeding Business Day with respect to any payment by the applicable L/C Issuer under a Letter of Credit to be reimbursed
in an Alternative Currency). In the event that (A) a drawing denominated in an Alternative Currency is to be reimbursed in Dollars
pursuant to the second sentence in this Section 2.03(c)(i) and (B) the Dollar amount paid by the Company, whether
on or after the Honor Date, shall not be adequate on the date of that payment to purchase in accordance with normal banking procedures
a sum denominated in the Alternative Currency equal to the drawing, the Company agrees, as a separate and independent obligation, to
indemnify the applicable L/C Issuer for the loss resulting from its inability on that date to purchase the Alternative Currency in the
full amount of the drawing. If the Company fails to timely reimburse an L/C Issuer on the Honor Date, the Administrative Agent shall
promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar
Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency) (the “Unreimbursed Amount”),
and the amount of such Lender’s Applicable Percentage thereof. In such event, the Company shall be deemed to have requested a Borrowing
of Revolving Loans that are 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 Revolving Loans that are Base Rate
Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Loan Notice) and provided that, after giving effect to such Borrowing, the Total Revolving Outstandings
shall not exceed the Aggregate Revolving Commitments. Any notice given by an L/C Issuer or the Administrative Agent pursuant to this
Section 2.03(c)(i) may be given by telephone if promptly confirmed in writing; provided that the lack of such
an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving
Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and the Administrative Agent may apply
Cash Collateral provided for this purpose) for the account of the applicable L/C Issuer, in Dollars, at the Administrative Agent’s
Office for Dollar-denominated payments in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00
p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
each Revolving Lender that so makes funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the Company
in such amount. The Administrative Agent shall remit the funds so received to the applicable L/C Issuer in Dollars.
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(iii) With
respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of Revolving Loans that are Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Company shall be deemed to have incurred
from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing
shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving
Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall
be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction
of its participation obligation under this Section 2.03.
(iv) Until
each Revolving Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the applicable
L/C Issuer for any amount drawn under any Letter of Credit issued by such L/C Issuer, interest in respect of such Lender’s Applicable
Percentage of such amount shall be solely for the account of such L/C Issuer.
(v) Each
Revolving Lender’s obligation to make Revolving Loans or L/C Advances to reimburse each L/C Issuer for amounts drawn under Letters
of Credit issued by such L/C Issuer, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender
may have against an L/C Issuer, the Company, any Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided,
however, that each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.02 (other than delivery by the Company of a Loan Notice). No such making
of an L/C Advance shall relieve or otherwise impair the obligation of the Company to reimburse an L/C Issuer for the amount of any payment
made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If
any Revolving Lender fails to make available to the Administrative Agent for the account of an L/C Issuer any amount required to be paid
by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
then, without limiting the other provisions of this Agreement, such 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 such L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time
to time in effect, plus any administrative, processing or similar fees customarily charged by such 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
Revolving Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate
of an L/C Issuer submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause
(vi) shall be conclusive absent manifest error.
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(d) Repayment
of Participations.
(i) At
any time after an L/C Issuer has made a payment under any Letter of Credit issued by such L/C Issuer and has received from any Revolving
Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative
Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Company 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 Dollars and in the same funds as those received by the Administrative
Agent.
(ii) If
any payment received by the Administrative Agent for the account of an L/C Issuer pursuant to Section 2.03(c)(i) is required
to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into
by an L/C Issuer in its discretion), each Revolving Lender shall pay to the Administrative Agent for the account of such 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 applicable Overnight Rate from time to time in effect. The
obligations of the Revolving 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 Company to reimburse each L/C Issuer for each drawing under each Letter of Credit issued by such L/C
Issuer 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 Company 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 applicable 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, endorsement, certificate or other document presented under or in connection with such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) waiver
by such L/C Issuer of any requirement that exists for such L/C Issuer’s protection and not the protection of the Company or any
waiver by such L/C Issuer which does not in fact materially prejudice the Company;
(v) honor
of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;
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(vi) any
payment made by such L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of,
or the date by which documents must be received under, such Letter of Credit if presentation after such date is authorized by the UCC,
the ISP or the UCP, as applicable;
(vii) any
payment by such 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 such 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, provisional liquidator, restructuring
officer, receiver, administrator or other representative of or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief Law;
(viii) any
adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Company or any Subsidiary
or in the relevant currency markets generally; or
(ix) any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Company or any Subsidiary.
The Company 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 Company’s instructions or other irregularity, the Company will immediately notify the applicable L/C Issuer.
The Company shall be conclusively deemed to have waived any such claim against such L/C Issuer and its correspondents unless such notice
is given as aforesaid.
(f) Role
of L/C Issuer. Each Lender and the Company agree that, in paying any drawing under a Letter of Credit, the applicable 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 Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of any 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, the Required Pro Rata Facilities Lenders, the Required Revolving Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence of bad faith, 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 Company 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 Company’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 Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any
L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (viii) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary notwithstanding, the Company may have a claim against
an L/C Issuer, and an L/C Issuer may be liable to the Company, to the extent, but only to the extent, of any direct, as opposed to consequential
or exemplary, damages suffered by the Company which the Company proves, as determined by a final non-appealable judgment of a court of
competent jurisdiction, were caused by such L/C Issuer’s bad faith, willful misconduct or gross negligence or such L/C Issuer’s
willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight or time 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, an 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 such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring,
endorsing or assigning or purporting to transfer, endorse or assign a Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The L/C Issuers may send a Letter of Credit
or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”)
message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
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(g) Applicability
of ISP and UCP; Limitation of Liability. Unless otherwise expressly agreed by the applicable L/C Issuer and the Company when a Letter of Credit is issued (including any such agreement applicable
to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit and (ii) the rules of
the UCP shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, no L/C Issuer shall be responsible to the Company
for, and no L/C Issuer’s rights and remedies against the Company shall be impaired by, any action or inaction of such L/C Issuer
required or permitted under any Law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement,
including the Law or any order of a jurisdiction where such L/C Issuer or the beneficiary is located, the practice stated in the ISP
or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the
Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International
Banking Law & Practice, whether or not any Letter of Credit chooses such Law or practice.
(h) Letter
of Credit Fees. The Company shall pay to the Administrative Agent for the account of each Revolving Lender in accordance, subject
to adjustment as provided in Section 2.18, with its Applicable Percentage, in Dollars, a Letter of Credit fee (the “Letter
of Credit Fee”) (A) for each commercial Letter of Credit equal to one-half (1/2) of one percent
(0.50%) per annum times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit, and (B) for
each standby Letter of Credit equal to the Applicable Rate for Letter of Credit Fees times the Dollar Equivalent of the daily
amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. Letter of Credit
Fees shall be (x) due and payable on the first (1st) Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand and (y) 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 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 Revolving Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue
at the Default Rate.
(i) Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. The Company shall pay directly to each L/C Issuer for its own account,
in Dollars, a fronting fee (i) with respect to each commercial Letter of Credit issued by such L/C Issuer, at the rate specified
in the Fee Letters or otherwise agreed in writing by the applicable L/C Issuer and the Company, as applicable, in each case computed
on the Dollar Equivalent of the amount of such Letter of Credit and due and payable upon the issuance thereof, (ii) with respect
to any amendment of a commercial Letter of Credit issued by such L/C Issuer increasing the amount of such Letter of Credit, at a rate
separately agreed between the Company and such L/C Issuer, computed on the Dollar Equivalent of the amount of such increase, and due
and payable upon the effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit issued by such L/C
Issuer, at the rate per annum specified in the Fee Letters or otherwise agreed in writing by such L/C Issuer and the Company, as applicable,
in each case computed on the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit on a quarterly basis
in arrears and due and payable on the first (1st) Business Day after the end of each March, June, September and December in
respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.09. In addition, the Company shall pay directly to each L/C Issuer for its own respective
account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges,
of such 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.
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(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.
2.04 [Reserved].
2.05 Swing
Line Loans.
(a) Swing
Line Facility. Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the
other Revolving Lenders set forth in this Section 2.05, may in its sole discretion make loans in Dollars (each such loan,
a “Swing Line Loan”) to the Borrowers or any of them 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 Revolving Loans and L/C Obligations
of the Revolving Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Commitment; provided,
however, that (x) after giving effect to any Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed the
Aggregate Revolving Commitments, and (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving
Commitment, (y) no Borrower shall use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and (z) the
Swing Line Lender shall not be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive
and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits,
and subject to the other terms and conditions hereof, each 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 Revolving 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 applicable Borrower’s irrevocable notice to the Swing Line Lender
and the Administrative Agent, which may be given by (A) telephone or (B) by a Swing Line Loan Notice; provided that
any telephonic notice must be confirmed promptly by delivery to the Swing line Lender and the Administrative Agent of a Swing Line Loan
Notice. Each such Swing Line Loan Notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on
the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum principal amount of $100,000,
and (ii) the requested borrowing date, which shall be a Business Day. 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 of the contents
thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the
request of any Revolving 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 applicable Borrower.
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(c) Refinancing
of Swing Line Loans.
(i) The
Swing Line Lender at any time in its sole discretion may request, on behalf of the applicable Borrower (and each Borrower hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to
such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which
written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal amount of Revolving Loans that are Base Rate Loans, but
subject to the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 4.02. The
Swing Line Lender shall furnish the Company with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative
Agent. Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Loan Notice available
to the Administrative Agent in Same Day 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 for Dollar-denominated payments not
later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.05(c)(ii), each Revolving
Lender that so makes funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the applicable Borrower
in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
(ii) If
for any reason any Swing Line Loan cannot be refinanced by such a Borrowing of Revolving Loans in accordance with Section 2.05(c)(i),
the request for Revolving Loans that are Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be
a request by the Swing Line Lender that each of the Revolving Lenders fund its risk participation in the relevant Swing Line Loan and
each Revolving 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.
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(iii) If
any Revolving 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 Revolving 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 applicable Overnight Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Revolving Lender pays
such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Loan included in
the relevant 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 Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall
be conclusive absent manifest error.
(iv) Each
Revolving Lender’s obligation to make Revolving 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 Revolving Lender may have against the Swing Line Lender, any Borrower
or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Lender’s
obligation to make 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 each Borrower to repay Swing Line Loans made
to such Borrower, together with interest as provided herein.
(d) Repayment
of Participations.
(i) At
any time after any Revolving Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives
any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving 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 Revolving 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 applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swing
Line Lender. The obligations of the Revolving Lenders under this clause shall survive the payment in full of the Obligations and the termination
of this Agreement.
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(e) Interest
for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing each Borrower for interest on the Swing
Line Loans made to such Borrower. Until each Revolving Lender funds its Revolving Loans that are Base Rate Loans or risk participations
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. Each Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans made to such Borrower directly to the Swing Line Lender.
2.06 Prepayments.
(a) Voluntary
Prepayments of Loans.
(i) Revolving
Loans and Term Loans. Any Borrower may, upon delivery of a Notice of Loan Prepayment to the Administrative Agent, at any time or
from time to time voluntarily prepay Revolving Loans and Term Loans in whole or in part without premium or penalty except as set forth
in Section 2.06(a)(iii); provided that, unless otherwise agreed by the Administrative Agent, (A) such notice
must be received by the Administrative Agent not later than 12:00 noon (w) [reserved], (x) two (2) Business Days prior
to any date of prepayment of Term SOFR Loans, (y) four (4) Business Days (or five (5) Business Days in the case of a prepayment
of Loans denominated in Special Notice Currencies) prior to any date of prepayment of Alternative Currency Loans and (z) on the
date of prepayment of Base Rate Loans and Canadian Prime Rate Loans; (B) any such prepayment of Term SOFR Loans and Alternative
Currency Loans shall be in a principal amount of the Dollar Equivalent of $1,000,000 or a whole multiple of the Dollar Equivalent of
$500,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding); (C) any prepayment of Base Rate
Loans and Canadian Prime Rate Loans shall be in a principal amount of the Dollar Equivalent of $1,000,000 or a whole multiple of the
Dollar Equivalent of $500,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding); and (D) any
prepayment of any of the Term Loans shall be applied to such tranche of the Term Loans as the applicable Borrower making such prepayment
shall direct in its sole discretion; provided that, absent such direction any prepayment shall be applied ratably to the Term
Loans then outstanding (and to the principal installments thereof in direct order of maturity). Each such notice shall specify the date
and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Term SOFR Loans or Alternative Currency Term Rate 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; provided that any such
notice delivered by a Borrower may be conditioned upon the effectiveness of other transactions, in which case such notice may be revoked
or its effectiveness deferred by such Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if
such condition is not satisfied, subject to the payment of breakage costs in accordance with Section 3.05. If such notice
is given by a Borrower, such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable
on the date specified therein. Any prepayment of a Loan shall be accompanied by all accrued interest on the amount prepaid, together
with (I) in the case of any applicable Term Loan, any additional amounts required pursuant to Section 2.06(a)(iii) and
(II) in the case of any Term SOFR Loan or Alternative Currency Term Rate Loan, any additional amounts required pursuant to Section 3.05.
Subject to Section 2.18, each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective
Applicable Percentages.
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(ii) Swing
Line Loans. Any Borrower may, upon delivery of a Notice of Loan Prepayment 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, unless otherwise agreed to by the Swing Line Lender, (A) such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 2:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount
of $100,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal thereof then outstanding). Each such
notice shall specify the date and amount of such prepayment. If such notice is given by a Borrower, such Borrower shall make such prepayment
and the payment amount specified in such notice shall be due and payable on the date specified therein.
(iii) Prepayment
Premium. In the event that, on any day during the relevant Call Protection Period, (A) a Repricing Event occurs with respect
to the Term B Loan, or (B) a Lender holding a portion of the Term B Loan is deemed to be a Non-Consenting Lender and must assign
its portion of such Term Loan pursuant to Section 10.13 in connection with any waiver, amendment or modification that would
reduce the effective All-In-Yield in effect with respect to such Term Loan, then, in each case, the aggregate principal amount to be
prepaid or repaid or assigned, as applicable, will be subject to a prepayment premium in an amount equal to one percent (1.00%) of (x) the
principal amount of such Term Loan that is prepaid (in the case of an optional or mandatory prepayment of such Term Loan described in
clause (a) of the definition of “Repricing Event”), (y) the aggregate outstanding principal amount
of such Term Loan (in the case of an amendment described in clause (b) of the definition of “Repricing Event”),
or (z) the principal amount of such Term Loan that is assigned (in the case of the foregoing clause (B)). Such prepayment
premium shall be paid by the Company to the Administrative Agent, for the account of the applicable Lenders or such Non-Consenting Lenders,
as applicable, on the date of such prepayment or repayment or the effective date of such assignment, as applicable.
(b) Mandatory
Prepayments of Loans.
(i) Revolving
Commitments.
(A) If
for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Commitments then in effect, the Borrowers shall
promptly prepay Revolving Loans and/or Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to
such excess; provided, however, that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant
to this Section 2.06(b)(i)(A) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total
Revolving Outstandings exceed the Aggregate Revolving Commitments then in effect.
(B) In
the case of Loans and Letters of Credit denominated in an Alternative Currency, the Administrative Agent will at periodic intervals,
and may, at its discretion at other times, recalculate the Dollar Equivalent of the aggregate Outstanding Amount of all Revolving Loans
and L/C Obligations denominated in Alternative Currencies to account for fluctuations in exchange rates affecting such Alternative Currency.
If, as a result of any such recalculation or otherwise, the Total Revolving Outstandings exceed the Aggregate Revolving Commitments then
in effect by more than the Dollar Equivalent of $500,000, the Borrowers will promptly prepay Revolving Loans and/or Swing Line Loans
and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess.
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(ii) Dispositions
and Recovery Events. The Borrowers shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in
an aggregate amount equal to one hundred percent (100%) of the Net Cash Proceeds in excess of $50,000,000 during any fiscal year received
by the Company or any Restricted Subsidiary from all Dispositions (other than Dispositions permitted by Sections 7.05(a) through
(y)) and Recovery Events to the extent such Net Cash Proceeds in excess of $50,000,000 are not reinvested in assets (excluding current
assets as classified by the Applicable Accounting Standard as in effect on such date) that are useful or usable in the business of the
Company and its Restricted Subsidiaries within three hundred sixty-five (365) days of the date of such Disposition or Recovery Event;
provided, however, if any portion of such Net Cash Proceeds are not so reinvested within such 365-day period but within
such 365-day period are contractually committed to be reinvested, then upon the termination of such contract or if such Net Cash Proceeds
are not so reinvested within five hundred forty-five (545) days of initial receipt, such remaining portion shall constitute Net Cash
Proceeds as of the date of such termination or expiry and shall be immediately applied to the prepayment of the Term Loans as set forth
in this Section 2.06(b)(ii). Any prepayment pursuant to this clause (ii) shall be applied as set forth in clause
(v) below.
(iii) Consolidated
Excess Cash Flow. At all times prior to the Collateral Release Date, within ten (10) Business Days after the date that the annual
consolidated financial statements of the Company and its Restricted Subsidiaries are required to be delivered pursuant to Section 6.01(a) after
the end of each fiscal year ending after the Closing Date (the “Consolidated Excess Cash Flow Prepayment Date”), commencing
with the fiscal year ending December 31, 2024, the Company shall prepay (or cause to be prepaid) the Term Loans as hereafter provided
in an aggregate amount equal to the difference of (A) the product of Consolidated Excess Cash Flow for such year times (I) fifty
percent (50%), if the Consolidated Secured Leverage Ratio as of the end of such fiscal year is equal to or greater than 2.75:1.00 or
(II) twenty-five percent (25%), if the Consolidated Secured Leverage Ratio as of the end of such fiscal year is less than 2.75:1.00
but greater than or equal to 2.50:1.00, minus (B) the aggregate amount of optional principal prepayments of Term Loans and
optional prepayments of Revolving Loans (to the extent accompanied by a permanent reduction in the Aggregate Revolving Commitments) in
each case made pursuant to Section 2.06(a) (other than, for the avoidance of doubt, any such prepayments made on the
Closing Date in connection with the amendment and restatement of the Existing Credit Agreement) (1) during such fiscal year (other
than any optional prepayments made prior to the Consolidated Excess Cash Flow Prepayment Date for such fiscal year to the extent such
optional prepayments were applied to reduce the Consolidated Excess Cash Flow prepayment required under this clause (iii) for
the prior fiscal year) or (2) following the end of such fiscal year but prior to the Consolidated Excess Cash Flow Prepayment Date
for such fiscal year and, upon the election of the Company by written notice delivered to the Administrative Agent prior to the Consolidated
Excess Cash Flow Prepayment Date for such period, applied to reduce the Consolidated Excess Cash Flow prepayment required under this
clause (iii), in each case, except to the extent financed with long-term, non-revolving Indebtedness minus (C) the
portion of Consolidated Net Income attributable to any Non-U.S. Subsidiaries (other than Non-U.S. Subsidiaries organized under any jurisdiction
of Canada), except to the extent of any cash actually repatriated to the Company or any of its Restricted Subsidiaries that are U.S.
Subsidiaries or Non-U.S. Subsidiaries organized under any jurisdiction of Canada; provided, however, that if the Consolidated
Secured Leverage Ratio as of the last day of such fiscal year is less than 2.50:1.00, then the Company shall not be required to make
any prepayment pursuant to this clause (iii) for such fiscal year. Any prepayment pursuant to this clause (iii) shall
be applied as set forth in clause (v) below. For the avoidance of doubt, no prepayments shall be required pursuant to this
clause (iii) after the Collateral Release Date.
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(iv) Debt
Issuances. Within one (1) Business Day of receipt by the Company or any Restricted Subsidiary of the Net Cash Proceeds of any
Debt Issuance, the Company shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an aggregate
amount equal to one hundred percent (100%) of such Net Cash Proceeds. Any prepayment pursuant to this clause (iv) shall be
applied as set forth in clause (v) below.
(v) Application
of Mandatory Prepayments. All amounts required to be paid pursuant to this Section 2.06(b) shall be applied as follows:
(A) with
respect to all amounts prepaid pursuant to Section 2.06(b)(i), first, ratably to the L/C Borrowings and the Swing Line
Loans, second, to the outstanding Revolving Loans, and, third, to Cash Collateralize the remaining L/C Obligations; and
(B) with
respect to all amounts prepaid pursuant to Sections 2.06(b)(ii), (iii) and (iv), first ratably to the
Term Loans (initially, to the first eight principal amortization payments scheduled to be made in direct order of maturity and, thereafter,
on a pro rata basis to the remaining principal amortization payments of the applicable Term Loan), second, ratably to the
L/C Borrowings and the Swing Line Loans, third, to the outstanding Revolving Loans, and fourth, to Cash Collateralize the
remaining L/C Obligations (without a commitment reduction thereunder).
Within the parameters
of the applications set forth above, prepayments shall be applied first to Base Rate Loans, Alternative Currency Daily Rate Loans
and Canadian Prime Rate Loans and then to Term SOFR Loans and Alternative Currency Term Rate Loans in direct order of Interest
Period maturities. All prepayments under this Section 2.06(b) shall be subject to Section 3.05, but otherwise
without premium or penalty except as set forth in Section 2.06(a)(iii) (solely to the extent such prepayment constitutes
a Repricing Event), and shall be accompanied by interest on the principal amount prepaid through the date of prepayment and any additional
amounts required pursuant to Section 2.06(a)(iii) (solely to the extent such prepayment constitutes a Repricing Event).
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2.07 Termination
or Reduction of Commitments.
The Company may,
upon notice to the Administrative Agent, terminate the Aggregate Revolving Commitments, or from time to time permanently reduce the Aggregate
Revolving Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00
a.m. five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in
an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Company shall not terminate or
reduce the Aggregate Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving
Outstandings would exceed the Aggregate Revolving Commitments, and (iv) if, after giving effect to any reduction of the Aggregate
Revolving Commitments, the Alternative Currency Sublimit, Canadian Dollar Sublimit, the Letter of Credit Sublimit or the Swing Line Sublimit
exceeds the amount of the Aggregate Revolving 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 Revolving Commitments.
Subject to clause (iv) of the proviso to the first sentence in this Section 2.07, the amount of any such Aggregate
Revolving Commitment reduction shall not be applied to the Alternative Currency Sublimit, the Canadian Dollar Sublimit, the Letter of
Credit Sublimit or the Swing Line Sublimit unless otherwise specified by the Company. Any reduction of the Aggregate Revolving 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 Revolving Commitments shall be paid on the effective date of such termination.
2.08 Repayment
of Loans.
(a) Revolving
Loans. Each Borrower shall repay to the Lenders on the Maturity Date for Revolving Loans the aggregate principal amount of all Revolving
Loans made to such Borrower outstanding on such date.
(b) Swing
Line Loans. The Company shall repay each Swing Line Loan on the earlier to occur of (i) the date ten (10) Business Days
after such Loan is made and (ii) the Maturity Date for Swing Line Loans.
(c) Term
B Loan. The Company shall repay the outstanding principal amount of the Term B Loan in quarterly installments of $1,250,000 commencing
on September 30, 2024 and on each December 31, March 31, June 30 and September 30 thereafter with the remaining
outstanding principal balance due and payable on the Maturity Date of the Term B Loan (as such installments may hereafter be adjusted
as a result of prepayments made pursuant to Section 2.06 and increases with respect to any increase to the Term B Loan pursuant
to Section 2.16), unless accelerated sooner pursuant to Section 8.02.
(d) Term
A Loan. The Company shall repay the outstanding principal amount of the Term A Loan in quarterly installments of $3,125,000 commencing
on September 30, 2026 and on each December 31, March 31, June 30 and September 30 thereafter with the remaining
outstanding principal balance due and payable on the Maturity Date of the Term A Loan (as such installments may hereafter be adjusted
as a result of prepayments made pursuant to Section 2.06 and increases with respect to any increase to the Term A Loan pursuant
to Section 2.16), unless accelerated sooner pursuant to Section 8.02.
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(e) Incremental
Term Loans. The applicable Borrower(s) shall repay any Incremental Term Loan in accordance with the terms of the Incremental
Facility Amendment establishing such Incremental Term Loan, in each case subject to the provisions of Section 2.16(i) or
Section 2.16(j), as applicable.
2.09 Interest.
(a) Subject
to the provisions of clause (b) below, (i) [reserved]; (ii) each Term SOFR Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to Term SOFR for such Interest Period plus the Applicable
Rate; (iii) each Base Rate 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;
(iv) each Alternative Currency
Daily Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Alternative Currency Daily Rate plus the Applicable Rate; (v) each Alternative Currency Term Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Alternative Currency
Term Rate for such Interest Period plus the Applicable Rate; (vi) each Canadian Prime Rate Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Canadian Prime Rate plus
the Applicable Rate; and (vii) 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) Upon
the occurrence and during the continuance of an Event of Default specified in Section 8.01(a), 8.01(f) or 8.01(g),
the Borrowers shall pay interest on 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.
(ii) Upon
the request of the Required Lenders while any Event of Default arising as a result of a breach of Section 7.11 exists, the
Borrowers 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.
(iii) Accrued
and unpaid interest on past due amounts (including interest on past due interest) 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.
(d) For
the purposes of the Interest Act (Canada), (i) whenever a rate of interest or fee rate hereunder is calculated on the basis of a
year (the “deemed year”) that contains fewer days than the actual number of days in the calendar year of calculation, such
rate of interest or fee rate shall be expressed as a yearly rate by multiplying such rate of interest or fee rate by the actual number
of days in the calendar year of calculation and dividing it by the number of days in the deemed year, (ii) the principle of deemed
reinvestment of interest shall not apply to any interest calculation hereunder and (iii) the rates of interest stipulated herein
are intended to be nominal rates and not effective rates or yields. Each Loan Party hereby irrevocably agrees not to plead or assert,
whether by way of defense or otherwise, in any proceeding relating to this Agreement and the other Loan Documents, that the interest
payable under this Agreement and the calculation thereof has not been adequately disclosed to it, whether pursuant to section 4 of the
Interest Act (Canada) or any other applicable law or legal principle.
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2.10 Fees.
In addition to certain fees described in subsections (h) and (i) of Section 2.03:
(a) Commitment
Fee. The Company shall pay to the Administrative Agent, for the account of each Revolving Lender in accordance with its Applicable
Percentage, a commitment fee (the “Commitment Fee”) in Dollars equal to the product of (i) the Applicable Rate
times (ii) the actual daily amount by which the Aggregate Revolving Commitments exceed the sum of (A) the Outstanding
Amount of all Revolving Loans plus (B) the Outstanding Amount of all L/C Obligations, subject to adjustment as provided in
Section 2.18. The Commitment Fee shall accrue at all times during the Availability Period (and thereafter so long as any
Revolving Loans, Swing Line Loans or L/C Obligations remain outstanding), 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 March, June,
September and December, 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. For purposes of clarification, Swing Line Loans shall not be considered outstanding for purposes of determining
the unused portion of the Aggregate Revolving Commitments.
(b) Other
Fees.
(i) The
Company shall pay to the Arrangers and the Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and
at the times specified in the Fee Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(ii) The
Company shall pay to the Lenders, in Dollars, 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.
2.11 Computation
of Interest and Fees.
All computations of interest
for Base Rate Loans (including Base Rate Loans determined by reference to the Secured Overnight Financing Rate) shall be made on the
basis of a year of three hundred sixty-five (365) or three hundred sixty-six (366) days, as the case may be, and actual days elapsed.
All computations of interest for Alternative Currency Loans shall be made on the basis of a year as set forth on Schedule 2.11
for such Alternative Currency and actual days elapsed. All other computations of fees and interest shall be made on the basis of a three
hundred sixty (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 three hundred sixty-five (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.
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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 Borrowers 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 Borrowers 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 to a Borrower made through the Administrative Agent,
such Borrower shall execute and deliver to such Lender (through the Administrative Agent) a promissory note, which shall evidence such
Lender’s Loans to such Borrower in addition to such accounts or records. Each such promissory note shall be in the form of Exhibit D
(a “Note”). Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount,
currency and maturity of its Loans and payments with respect thereto.
(b) In
addition to the accounts and records referred to in subsection (a) above, each Revolving Lender and the Administrative Agent
shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Revolving 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 Revolving Lender in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest error.
2.13 Payments
Generally; Administrative Agent’s Clawback.
(a) General.
All payments to be made by a Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein
and except with respect to principal of and interest on Loans denominated in an Alternative Currency, all payments by a Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except
as otherwise expressly provided herein, all payments by a Borrower hereunder with respect to principal and interest on Loans denominated
in an Alternative Currency shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment
is owed, at the applicable Administrative Agent’s Office in such Alternative Currency and in Same Day Funds not later than the
Applicable Time specified by the Administrative Agent on the dates specified herein. Without limiting the generality of the foregoing,
the Administrative Agent may require that any payments due under this Agreement be made in the United States or Canada. If, for any reason,
any Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency, such Borrower shall make
such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The Administrative Agent will promptly distribute
to each applicable 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 (i) after 2:00 p.m., in
the case of payments in Dollars, or (ii) after the Applicable Time specified by the Administrative Agent in the case of payments
in an Alternative Currency, shall in each case 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 any 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.
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(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 Borrowing of Loans (or, in the case of any Borrowing of Base Rate Loans or Canadian Prime Rate Loans, prior
to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s
share of such 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 Borrowing of Base Rate Loans or Canadian Prime 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 applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including
the date such amount is made available to such 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 Overnight Rate, 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 such Borrower,
the interest rate applicable to Base Rate Loans or Canadian Prime Rate Loans or in the case of Alternative Currencies in accordance with
such market practice, in each case, as applicable. If such 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 such Borrower the amount of such interest paid
by such Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount
so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by such Borrower shall be without prejudice
to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Payments
by Borrowers; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from a Borrower prior
to the time at which any payment is due by such Borrower to the Administrative Agent for the account of the Lenders or an L/C Issuer
hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such payment
on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or such L/C Issuer, as the case
may be, the amount due. With respect to any payment that the Administrative Agent makes for the account of the Lenders or any L/C Issuer
hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of
the following applies (such payment referred to as the “Rescindable Amount”): (1) the applicable Borrower has
not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by the applicable
Borrower (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise erroneously made such payment;
then each of the Lenders or the applicable L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith
on demand the Rescindable Amount so distributed to such Lender or such L/C Issuer, in Same Day 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 Overnight Rate.
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A notice of the
Administrative Agent to any Lender or Borrower with respect to any amount owing under this clause (b) shall be conclusive,
absent manifest error.
(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 to any Borrower as provided in the foregoing provisions of this Article II, and such funds are not made available
to such 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 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 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 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 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 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 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 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
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(ii) the
provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of any 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 or Disqualified Institution), (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 Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment
to the Company or any Subsidiary 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 Designated
Borrowers.
(a) The
Company may at any time, upon not less than fifteen (15) Business Days’ notice from the Company to the Administrative Agent (or
such shorter period as may be agreed by the Administrative Agent in its sole discretion), designate any Restricted Subsidiary of the Company
(an “Applicant Borrower”) as a Designated Borrower to receive Loans hereunder by delivering to the Administrative Agent
(which shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in substantially the form of Exhibit G
(a “Designated Borrower Request and Assumption Agreement”). The parties hereto acknowledge and agree that prior to
any Applicant Borrower becoming entitled to utilize the credit facilities provided for herein (i) the Administrative Agent and the
Lenders that are to provide Commitments and/or Loans in favor of an Applicant Borrower must each agree to such Applicant Borrower becoming
a Designated Borrower and (ii) the Administrative Agent and such Lenders shall have received such supporting resolutions, incumbency
certificates, opinions of counsel and other documents or information, in form, content and scope reasonably satisfactory to the Administrative
Agent, as may be required by the Administrative Agent, and Notes signed by such new Borrowers to the extent any Lender so requires (the
requirements in clauses (i) and (ii) hereof, the “Designated Borrower Requirements”). If the
Designated Borrower Requirements are met, the Administrative Agent shall send a notice in substantially the form of Exhibit H
(a “Designated Borrower Notice”) to the Company and the Lenders specifying the effective date upon which the Applicant
Borrower shall constitute a Designated Borrower for purposes hereof, whereupon each of the Lenders agrees to permit such Designated Borrower
to receive Loans hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Designated Borrower
otherwise shall be a Borrower for all purposes of this Agreement; provided that no Loan Notice or Letter of Credit Application
may be submitted by or on behalf of such Designated Borrower until the date five (5) Business Days after such effective date (or
such shorter period as agreed by the Administrative Agent in its sole discretion).
(b) Each
Subsidiary of the Company that becomes a “Designated Borrower” pursuant to this Section 2.15 hereby irrevocably
appoints the Company as its agent for all purposes relevant to this Agreement and each of the other Loan Documents, including (i) the
giving and receipt of notices, (ii) the execution and delivery of all documents, instruments and certificates contemplated herein
and all modifications hereto, and (iii) the receipt of the proceeds of any Loans made by the Lenders to any such Designated Borrower
hereunder. Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if
given or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given or taken only by the Company,
whether or not any such other Borrower joins therein. Any notice, demand, consent, acknowledgement, direction, certification or other
communication delivered to the Company in accordance with the terms of this Agreement shall be deemed to have been delivered to each
Designated Borrower.
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(c) The
Company may from time to time, upon not less than fifteen (15) Business Days’ notice from the Company to the Administrative Agent
(or such shorter period as may be agreed by the Administrative Agent in its sole discretion), terminate a Designated Borrower’s
status as such; provided that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable by such
Designated Borrower on account of any Loans made to it, as of the effective date of such termination. The Administrative Agent will promptly
notify the Lenders of any such termination of a Designated Borrower’s status.
2.16 Increase
in Commitments.
The Borrowers may from time
to time add one or more tranches of term loans or increase outstanding tranches of term loans (each an “Incremental Term Facility”)
and/or increase commitments under the Revolving Facility (each such increase, an “Incremental Revolving Increase”;
each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”)
to this Agreement at the option of the Company by an agreement in writing entered into by the Borrowers, the Administrative Agent and
each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (and, for the avoidance of doubt,
shall not require the consent of any other Lender) (each an “Incremental Facility Amendment”); provided that:
(a) the
aggregate principal amount of all Incremental Facilities established under this Section 2.16 following the Second Amendment
Effective Date shall not exceed the Incremental Amount;
(b) no
Event of Default shall have occurred and be continuing at either the time of the request for such Incremental Facility or on the effective
date of such Incremental Facility;
(c) no
existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide
an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(d) each
Incremental Facility shall be in an aggregate principal amount of at least $10,000,000 and in integral multiples of $1,000,000 in excess
thereof; and each Incremental Facility Commitment shall be in a minimum principal amount of at least $1,000,000, in the case of an Incremental
Revolving Increase, and at least $1,000,000 in the case of an Incremental Term Facility (or, in each case, such lesser amounts as the
Administrative Agent may agree);
(e) each
Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
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(f) the
Borrowers shall deliver to the Administrative Agent:
(i) a
certificate of each Loan Party dated as of the date of such increase signed by a Responsible Officer of such Loan Party (A) certifying
and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental
Facility and (B) in the case of the Company, certifying that, before and after giving effect to such increase, (1) the representations
and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if qualified
by materiality or reference to Material Adverse Effect, in all respects) on and as of the date of such increase, except to the extent
that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material
respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) as of such earlier date, (2) no
Default or Event of Default exists and (3) such Incremental Facility or Incremental Facilities have been incurred in compliance
with this Agreement;
(ii) prior
to the Collateral Release Date, such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause
the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility; and
(iii) customary
opinions of legal counsel to the Loan Parties (or, where consistent with local practice, counsel to the Administrative Agent), addressed
to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective
date of such Incremental Facility;
(g) the
Administrative Agent shall have received documentation from each Person providing a commitment in respect of such requested Incremental
Facility or Incremental Facilities (each such commitment, an “Incremental Facility Commitment”) evidencing its Incremental
Facility Commitment and its obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(h) in
the case of an Incremental Term Facility, the Administrative Agent shall have determined in its reasonable discretion whether such Incremental
Term Facility consists of a tranche A term loan (an “Incremental Tranche A Term Facility”) or a tranche B term loan
(an “Incremental Tranche B Term Facility”);
(i) in
the case of an Incremental Term Facility that is an Incremental Tranche A Term Facility:
(i) the
interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term
Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the
final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the
Revolving Loans and the Term A Loan and (2) the final maturity date of any then outstanding Incremental Tranche A Term Loan; and
(B) the
Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term
A Loan or any then outstanding Incremental Tranche A Term Loan (in each case, as determined by the Administrative Agent in accordance
with customary financial practice);
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provided, further,
that clauses (i)(A) and (i)(B) above shall not apply to (1) Inside Maturity Indebtedness or
(2) bridge Indebtedness, so long as, in the case of any such bridge Indebtedness, (i)(x) at the initial maturity of
such bridge Indebtedness, such bridge Indebtedness shall automatically convert to (or would be required to be exchanged for)
Indebtedness that complies with clauses (i)(A) and (i)(B) above, or (y) such bridge Indebtedness is
incurred with the intent to convert such bridge Indebtedness to permanent financing that complies with clauses
(i)(A) and (i)(B) above, and (ii) the only prepayments required to be made on such bridge Indebtedness
shall be such prepayments as are customary for similar bridge financings in light of then-prevailing market conditions (as
determined by the Company in consultation with the Administrative Agent);
(ii) the
proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental
Term Facility;
(iii) such
Incremental Term Facility shall share ratably in any prepayments of the Term A Loan and any then outstanding Incremental Tranche A Term
Loan pursuant to Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term
Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for
the then outstanding Term Facilities); and
(iv) if
such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the
terms applicable to the Term A Loan, shall be reasonably acceptable to the Administrative Agent;
(j) in
the case of an Incremental Term Facility that is an Incremental Tranche B Term Facility:
(i) the
interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term
Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the
final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the
Term B Loan and (2) the final maturity date of any then outstanding Incremental Tranche B Term Loan;
(B) the
Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term
B Loan or any then outstanding Incremental Tranche B Term Loan;
(C) if
the All-In-Yield on such Incremental Term Facility exceeds the All-In-Yield on the Term B Loan or any then outstanding Incremental Tranche
B Term Facility by more than 1/2 of one percent (0.50%) per annum, then the Applicable Rate or fees payable by
the Borrowers with respect to the Term B Loan and each then outstanding Incremental Tranche B Term Facility shall on the effective date
of such Incremental Term Facility be increased to the extent necessary to cause the All-In-Yield on the Term B Loan and each then outstanding
Incremental Tranche B Term Facility to be 1/2 of one percent (0.50%) less than the All-In-Yield on such Incremental
Term Facility (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Borrowers)
(the “MFN Protection”); provided that, notwithstanding anything to the contrary in the foregoing clause
(C), the provisions of this clause (C) shall not apply to any Incremental Tranche B Term Facility established after the
first twelve (12) months following the Closing Date in relation to the Term B Loan or the original issuance date of any then existing
Incremental Tranche B Term Facility, as the case may be;
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provided, further, that
clauses (i)(A) and (i)(B) above shall not apply to (1) Inside Maturity Indebtedness and (2) bridge Indebtedness,
so long as (i)(x) at the initial maturity of such bridge Indebtedness, such bridge Indebtedness shall automatically convert to (or
would be required to be exchanged for) Indebtedness that complies with clauses (i)(A) and (i)(B) above, or (y) such
bridge Indebtedness is incurred with the intent to convert such bridge Indebtedness to permanent financing that complies with clauses
(i)(A) and (i)(B) above, and (ii) the only prepayments required to be made on such bridge Indebtedness shall
be such prepayments as are customary for similar bridge financings in light of then-prevailing market conditions (as determined by the
Company in consultation with the Administrative Agent);
(ii) the
proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental
Term Facility;
(iii) such
Incremental Term Facility shall share ratably in any prepayments of the Term B Loan and any then outstanding Incremental Tranche B Term
Loan pursuant to Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term
Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for
the then outstanding Term Facilities); and
(iv) if
such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the
terms applicable to the Term B Loan, shall be reasonably acceptable to the Administrative Agent;
(k) in
the case of any Incremental Revolving Increase with respect to the Revolving Facility:
(i) such
Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins; provided that, subject
to clause (ii) below, such Incremental Revolving Increase may be issued with a utilization fee and/or additional unused fee
payable solely to the Lenders under such Incremental Revolving Increase) applicable to the Revolving Facility; and
(ii) the
existing Lenders under the Revolving Facility shall on the effective date of such Incremental Revolving Increase make such assignments
(which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans
and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility to the Lenders providing such Incremental
Revolving Increase and the Administrative Agent may make such adjustments to the Register as are necessary so that, after giving effect
to such assignments and adjustments, each Lender under the Revolving Facility (including the Lenders providing such Incremental Revolving
Increase) will hold revolving loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility
equal to its pro rata share thereof;
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(l) the
Company shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that after giving effect to
the incurrence of such Incremental Facility on a Pro Forma Basis (without “netting” the cash proceeds of such Incremental
Facility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Company and assuming, in the case of any
Incremental Facility that consists of an Incremental Revolving Increase, the full amount of such Incremental Facility is fully drawn)
the Loan Parties would be in Pro Forma Compliance; and
(m) no
Incremental Facility shall be (i) Guaranteed by any Person other than the Guarantors, (ii) prior to the Collateral Release Date,
secured by any property other than Collateral and (iii) on an after the Collateral Release Date, secured by any property;
provided, further,
that the conditions set forth in the foregoing proviso shall be subject to the provisions of Section 1.10 in the case of any
Incremental Term Facility used to finance a Limited Condition Acquisition.
The Incremental Facility Commitments
and credit extensions thereunder shall constitute Commitments and Credit Extensions under, and shall be entitled to all the benefits afforded
by, this Agreement and the other Loan Documents. The Lenders hereby authorize the Administrative Agent to enter into, and the Lenders
agree that this Agreement and the other Loan Documents shall be amended by, such Incremental Facility Amendments to the extent (and only
to the extent) the Administrative Agent deems necessary (including, without limitation, amendments to permit the loans under such Incremental
Facility to be “fungible” (including for purposes of the Code) with any other then-existing Loans under this Agreement) in
order to establish Incremental Facilities on terms consistent with and/or to effect the provisions of this Section 2.16. This
Section 2.16 shall supersede any provisions in Section 10.01 to the contrary. The Administrative Agent shall promptly
notify each Lender as to the effectiveness of each Incremental Facility Amendment.
2.17 Cash
Collateral.
(a) Certain
Credit Support Events. If (i) an 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, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, (iii) the Company shall be required to provide Cash Collateral pursuant to Section 2.06 or Section 8.02,
or (iv) there shall exist a Defaulting Lender, the Company shall immediately (in the case of clause (iii) above) or
within one (1) Business Day (in all other cases) following any request by the Administrative Agent or an L/C Issuer, provide Cash
Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant
to clause (iv) above, after giving effect to Section 2.18(a)(iv) and any Cash Collateral provided by the
Defaulting Lender). Additionally, if the Administrative Agent notifies the Company at any time that the Outstanding Amount of all L/C
Obligations at such time exceeds the Letter of Credit Sublimit then in effect, then, within two (2) Business Days after receipt
of such notice, the Company shall provide Cash Collateral for the Outstanding Amount of the L/C Obligations in an amount not less than
the amount by which the Outstanding Amount of all L/C Obligations exceeds the Letter of Credit Sublimit.
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(b) Grant
of Security Interest. Both before and after the Collateral Release Date, the Company, and to the extent provided by any Defaulting
Lender (to the extent not prohibited by applicable Law in respect of EDC), such Defaulting Lender, hereby grants to (and subjects to
the control of) the Administrative Agent, for the benefit of the Administrative Agent, each L/C Issuer and the Lenders, 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 or an L/C Issuer as herein provided, or that the total amount
of such Cash Collateral is less than the Minimum Collateral Amount, the Company 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. All Cash
Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in one or more Controlled Accounts
at Bank of America. The Company shall pay on demand therefor from time to time all customary account opening, activity and other administrative
fees and charges in connection with the maintenance and disbursement of Cash Collateral.
(c) Application.
Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.17
or Sections 2.03, 2.06, 2.18 or 8.02 in respect of Letters of Credit shall be held and applied to the satisfaction
of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting
Lender (to the extent not prohibited by applicable Law in respect of EDC), 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 otherwise be provided for herein.
(d) Release.
Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released
to the Person providing such Cash Collateral 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 determination by the Administrative Agent
and the L/C Issuers that there exists excess Cash Collateral; provided, however, (x) any such release shall be without
prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under
the Loan Documents and the other applicable provisions of the Loan Documents, and (y) the Person providing Cash Collateral and the
L/C Issuers 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. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this
Agreement shall be restricted as set forth in the definition of “Required Lenders”, “Required Pro Rata Facilities Lenders”,
“Required Revolving Lenders” and Section 10.01.
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(ii) Defaulting
Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account
of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received
by the Administrative Agent from a 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 such Defaulting Lender
to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting
Lender to the L/C Issuers or Swing Line Lender hereunder; third, to Cash Collateralize the L/C Issuers’ Fronting Exposure
with respect to such Defaulting Lender in accordance with Section 2.17; fourth, as the Company may request (so long
as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as
required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and
the Company, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s
potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuers’
future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement,
in accordance with Section 2.17; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuers or Swing
Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any L/C Issuer or the Swing Line
Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh,
so long as no Default exists, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent
jurisdiction obtained by the Company against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations
under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided
that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender
has not fully funded its appropriate share, and (y) such Loans
were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied
or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations 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 Obligations owed to, such Defaulting Lender until such time
as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in
accordance with the Commitments hereunder without giving effect to Section 2.18(a)(iv). Any payments, prepayments or other
amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash
Collateral pursuant to this Section 2.18(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and
each Lender irrevocably consents hereto.
(iii) Certain
Fees.
(A) No
Defaulting Lender shall be entitled to receive any fee payable under Section 2.10(a) for any period during which that
Lender is a Defaulting Lender (and the Company shall not be required to pay any such fee that otherwise would have been required to have
been paid to that Defaulting Lender).
(B) Each
Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only
to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral
pursuant to Section 2.17.
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(C) With
respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Company shall (x) pay to each Non-Defaulting
Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation
in L/C Obligations that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to
an L/C Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s
Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(iv) Reallocation
of Applicable Percentages to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations
and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages
(calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause
the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment. Subject
to Section 10.21, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against
a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result
of such Non-Defaulting Lender’s increased exposure following such reallocation.
(v) Cash
Collateral, Repayment of Swing Line Loans. If the reallocation described in clause (a)(iv) above cannot, or can only
partially, be effected, the Company shall, without prejudice to any right or remedy available to it hereunder or under applicable Law,
(x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second, Cash
Collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.17.
(b) Defaulting
Lender Cure. If the Company, the Administrative Agent, Swing Line Lender and the L/C Issuers agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the
parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may
include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of
outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the
Loans and funded and unfunded participations in Letters of Credit 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 such Lender will
cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments
made by or on behalf of the Company 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.
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2.19 Designated
Lenders.
Each of the Administrative
Agent, each L/C Issuer, the Swing Line Lender and each Lender at its option may make any Credit Extension or otherwise perform its obligations
hereunder through any Lending Office (each, a “Designated Lender”); provided that any exercise of such option shall
not affect the obligation of such Borrower to repay any Credit Extension in accordance with the terms of this Agreement. Any Designated
Lender shall be considered a Lender; provided that in the case of an Affiliate or branch of a Lender, such provisions that would
be applicable with respect to Credit Extensions actually provided by such Affiliate or branch of such Lender shall apply to such Affiliate
or branch of such Lender to the same extent as such Lender; provided that for the purposes only of voting in connection with any Loan
Document, any participation by any Designated Lender in any outstanding Credit Extension shall be deemed a participation of such Lender.
2.20 Joint
and Several Liability.
(a) Each
U.S. Borrower that is not a Specified U.S. Obligor and each Non-U.S. Borrower that is not a Specified Non-U.S. Borrower shall be jointly
and severally liable for the Obligations regardless of which Borrower actually receives Credit Extensions hereunder or the amount of such
Credit Extensions received or the manner in which the Administrative Agent, any L/C Issuer or any Lender accounts for such Credit Extensions
on its books and records; provided that the obligations of each such Borrower under the Loan Documents shall be limited to an aggregate
amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws.
(b) Each
Non-U.S. Borrower and each U.S. Borrower that is a Specified U.S. Obligor shall be jointly and severally liable for the Non-U.S. Obligations
regardless of which Borrower actually receives Credit Extensions hereunder or the amount of such Credit Extensions received or the manner
in which the Administrative Agent, any L/C Issuer or any Lender accounts for such Credit Extensions on its books and records; provided
that the obligations of each such Borrower under the Loan Documents shall be limited to an aggregate amount equal to the largest amount
that would not render such obligations subject to avoidance under the Debtor Relief Laws.
2.21 Sustainability
Adjustments.
(a) ESG
Amendment. On or prior to the first anniversary of the Closing Date, the Company, in consultation with the Sustainability Coordinators,
shall be entitled to establish specified key performance indicators (“KPIs”) with respect to certain environmental,
social and governance (“ESG”) targets of the Company and its Subsidiaries (such indicators or targets, “KPI
Metrics”), which KPI Metrics shall be subject to annual thresholds or targets (in either case, such thresholds or targets,
“SPTs”). The Company and the Required Pro Rata Facilities Lenders may amend this Agreement (such amendment, an “ESG
Amendment”) solely for the purpose of incorporating the KPIs and other related provisions (the “ESG Pricing Provisions”)
into this Agreement. Upon the effectiveness of any such ESG Amendment, based on the Company’s performance against the KPIs, certain
adjustments (increase, decrease or no adjustment) of up to 0.075% (7.5 basis points) on the Applicable Rate for the Term A Loan, any
then outstanding Incremental Tranche A Term Loan, Revolving Loans, Swing Line Loans and Letter of Credit Fees and up to 0.01% (1 basis
point) on the Commitment Fee may be made; provided that (i) in no event shall any adjusted Applicable Rate for the Term A
Loan, any then outstanding Incremental Tranche A Term Loan, Revolving Loans, Swing Line Loans and Letter of Credit Fees or the Commitment
Fee be less than zero and (ii) such adjustments shall be made on a per annum basis, and not be cumulative from year to year. The
pricing adjustments pursuant to the KPIs will require, among other things, reporting and validation of the measurement of the KPIs in
a manner that is aligned with the Sustainability Linked Loan Principles and is to be agreed between the Company and the Sustainability
Coordinators (each acting reasonably), including the appointment of a sustainability assurance provider agreed between the Company and
the Sustainability Coordinators (each acting reasonably). Following the effectiveness of the ESG Amendment, any other modification to
the ESG Pricing Provisions shall be subject to the consent of the Company and the Required Pro Rata Facilities Lenders so long as such
modification does not have the effect of reducing the Applicable Rate for Term SOFR Loans, Alternative Currency Loans, Base Rate Loans,
Letter of Credit Fees or the Commitment Fee to a level not otherwise permitted by the ESG Pricing Provisions.
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(b) Conflicting
Provisions. This Section 2.21 shall supersede any provisions in Section 10.01 to the contrary.
(c) Applicability
of ESG Pricing Provisions.
(i) For
the avoidance of doubt, any adjustments on the Applicable Rate, Letter of Credit Fees or Commitment Fee shall apply solely to the Applicable
Rate, Letter of Credit Fees or Commitment Fee with respect to the Term A Loan, any then outstanding Incremental Tranche A Term Loan and
the Revolving Facility. No adjustments related to the ESG Pricing Provisions shall apply to the Applicable Rate of the Term B Loan or
any then outstanding Incremental Tranche B Term Loan.
(ii) Each
party hereto hereby agrees that none of the Revolving Facility, the Term A Loan nor any Incremental Tranche A Term Facility described
in this Agreement are, and shall not be, sustainability-linked loans unless and until the effectiveness of any ESG Amendment.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments
Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any
and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding
for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion of the Administrative
Agent or any Loan Party) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or a Loan Party,
then the Administrative Agent or such Loan Party shall be entitled to make such deduction or withholding, upon the basis of the information
and documentation to be delivered pursuant to clause (e) below.
(ii) If
any Loan Party or the Administrative Agent shall be required by the Code to withhold or deduct any Taxes from any payment, then (A) such
Loan Party or the Administrative Agent shall withhold or make such deductions as are determined by such Loan Party or the Administrative
Agent to be required based upon the information and documentation it has received pursuant to clause (e) below, (B) such
Loan Party or the Administrative 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,
the sum payable by the applicable Loan Party 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 3.01) the applicable
Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
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(iii) If
any Loan Party or the Administrative Agent shall be required by any applicable Laws other than the Code to withhold or deduct any Taxes
from any payment, then (A) such Loan Party or the Administrative Agent, as required by such Laws, shall withhold or make such deductions
as are determined by it to be required based upon the information and documentation it has received pursuant to clause (e) below,
(B) such Loan Party or the Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or
deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction
is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party 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 3.01)
the applicable Recipient 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 Loan Parties. Without limiting the provisions of clause (a) above, the Loan Parties shall timely
pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse
it for the payment of, any Other Taxes.
(c) Tax
Indemnifications.
(i) Each
of the Loan Parties shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect
thereof within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes
imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or
required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Company by a Lender or
an 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 an L/C Issuer, shall be conclusive absent manifest error. Each of the Loan Parties shall, and does hereby, jointly and severally
indemnify the Administrative Agent, and shall make payment in respect thereof within ten (10) days after demand therefor, for
any amount which a Lender or an L/C Issuer for any reason fails to pay indefeasibly to the Administrative Agent as required pursuant
to Section 3.01(c)(ii) below; provided, however, that no Loan Party shall have any obligation to
indemnify any party hereunder for Indemnified Taxes, Other Taxes or any other liability that arises from such party’s own
gross negligence or willful misconduct. To the extent that a Loan Party pays an amount to the Administrative Agent pursuant to the
preceding sentence (a “Back-Up Indemnity Payment”), then upon request of the Company, the Administrative Agent
shall use commercially reasonable efforts to exercise its set-off rights described in the last sentence of clause
(c)(ii) below (on behalf of itself or the Loan Parties) to collect the applicable Back-Up Indemnity Payment amount from the
applicable Lender or L/C Issuer and shall pay the amount so collected to the Company net of any reasonable expenses incurred by the
Administrative Agent in its efforts to collect (through set-off or otherwise) from such Lender or L/C Issuer with respect to clause
(c)(ii), below.
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(ii) Each
Lender and each L/C Issuer shall, and does hereby, severally indemnify, and shall make payment in respect thereof within ten (10) days
after demand therefor, (A) the Administrative Agent against any Indemnified Taxes attributable to such Lender or such L/C Issuer
(but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without
limiting the obligation of the Loan Party to do so), (B) the Administrative Agent and the Loan Party, as applicable, against any
Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance
of a Participant Register and (C) the Administrative Agent and the Loan Party, as applicable, against any Excluded Taxes attributable
to such Lender or such L/C Issuer, in each case, that are payable or paid by the Administrative Agent or a Loan Party in connection with
any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered
to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender and each 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 such 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).
(d) Evidence
of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority as provided in this
Section 3.01, the Company shall deliver to the Administrative Agent the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence
of such payment reasonably satisfactory to the Administrative Agent.
(e) Status
of Lenders; Tax Documentation.
(i) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent,
such properly completed and executed documentation prescribed by applicable Law or the taxing authorities of a jurisdiction pursuant
to such applicable Law or reasonably requested by the Company or the Administrative Agent as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Company or the Administrative
Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Company or the Administrative
Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding
or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution
and submission of such documentation (other than such documentation either (A) set forth in Section 3.01(e)(ii)(A),
(ii)(B) and (ii)(D) below or (B) required by applicable law other than the Code or the taxing authorities
of the jurisdiction pursuant to such applicable law to comply with the requirements for exemption or reduction of withholding tax in
that jurisdiction) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would
subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such
Lender.
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(ii) Without
limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any
Lender that is a U.S. Person shall deliver to the Company, such Borrower(s), and the Administrative Agent on or prior to the date on which
such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company, any such
Borrower, or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup
withholding tax;
(B) any
Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to the Company, such Borrower(s), 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 Non-U.S. Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company, any such Borrower, or the
Administrative Agent), whichever of the following is applicable:
(1) in
the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect
to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an
exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with
respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing
an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income”
article of such tax treaty;
(2) executed
copies of IRS Form W-8ECI;
(3) in
the case of a Non-U.S. 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 I-1 to the effect that such Non-U.S. Lender is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning
of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN-E (or W-8BEN, as
applicable); or
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(4) to
the extent a Non-U.S. Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS
Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-2 or
Exhibit I-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided
that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio
interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-4
on behalf of each such direct and indirect partner;
(C) any
Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to the Company, such Borrower(s) 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 Non-U.S. Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company, any such Borrower or the Administrative
Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Company,
such Borrower(s) or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if
a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code, as applicable), such Lender shall deliver to the Company, such Borrower(s) and the Administrative Agent at the time or
times prescribed by Law and at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed
by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by the Company, any such Borrower or the Administrative Agent as may be necessary for the Company, such Borrower(s) and
the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s
obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D),
“FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each
Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete
or inaccurate in any respect, it shall update such form or certification or promptly notify the Company, such Borrower(s) and the
Administrative Agent in writing of its legal inability to do so.
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(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 an L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as the case may be. If any Recipient
determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified
by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01, it shall
pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid,
by a Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses
(including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided that each Loan Party, upon the request of the Recipient, agrees to repay the amount paid
over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the
contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to such Loan Party pursuant to this
subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient 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 any Recipient to make available its tax returns (or any other information relating to its taxes that it deems confidential) to
any Loan Party or any other Person.
(g) Survival. Each
party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent
or any assignment of rights by, or the replacement of, a Lender or an L/C Issuer, the termination of the Commitments and the repayment,
satisfaction or discharge of all other Obligations.
3.02 Illegality.
(a) If
any Lender determines in good faith that any Change in 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 perform any of its obligations hereunder or make, maintain or fund
or charge interest with respect to any Credit Extension or to determine or charge interest rates based upon SOFR, Term SOFR or a Relevant
Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, Dollars or any Alternative Currency in the applicable interbank market, then, on notice thereof by such Lender to the Company
through the Administrative Agent, (i) any obligation of such Lender to issue, make, maintain, fund or charge interest with respect
to any such Credit Extension or to make or continue Term SOFR Loans or Alternative Currency Loans, as applicable, in the affected currency
or currencies or, in the case of Loans denominated in Dollars, to convert Base Rate Loans to Term SOFR Loans, or, in the case of Loans
denominated in Canadian Dollars, to convert Canadian Prime Rate Loans to Alternative Currency Term Rate 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 the 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 the Term SOFR component of the Base Rate, in
each case until such Lender notifies the Administrative Agent and the Company that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, (x) the Borrowers shall, upon demand from such Lender (with a copy to the Administrative
Agent), prepay all Alternative Currency Loans in the affected currency or currencies or, if applicable and such Loans are denominated
in Dollars, convert all Term 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 Term SOFR component
of the Base Rate), or if applicable and such Loans are denominated in Canadian Dollars, convert all Alternative Currency Term Rate Loans
of such Lender to Canadian Prime Rate Loans, in each case, either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans
and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon Term SOFR, the Administrative
Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the 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 Term SOFR. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest
on the amount so prepaid or converted.
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(b) If,
in any applicable jurisdiction, the Administrative Agent, any L/C Issuer or any Lender or any Designated Lender determines in good faith:
(i) that any Change in Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for the Administrative
Agent, any L/C Issuer or any Lender or its applicable Designated Lender to (A) perform any of its obligations hereunder or under
any other Loan Document, (B) to fund or maintain its participation in any Loan or Letter of Credit or (C) issue, make, maintain,
fund or charge interest or fees with respect to any Credit Extension to a Non-U.S. Borrower, or (ii) the making, funding, maintaining
or continuance of any Loan is or becomes unlawful or impossible as a result of compliance by such Lender with any Sanctions, such Person
shall promptly notify the Administrative Agent, then, upon the Administrative Agent notifying the Company, and until such notice by such
Person is revoked, any obligation of such Person to issue, make, maintain, fund or charge interest or fees with respect to any such Credit
Extension shall be suspended, and to the extent required by applicable Law, cancelled. Upon receipt of such notice, the Loan Parties shall,
(A) repay that Person’s participation in the Loans or other applicable Obligations on the last day of the Interest Period for
each Loan or other Obligation occurring after the Administrative Agent has notified the Company or, if earlier, the date specified by
such Person in the notice delivered to the Administrative Agent (being no earlier than the last day of any applicable grace period permitted
by applicable Law), (B) to the extent applicable to an L/C Issuer, Cash Collateralize that portion of applicable L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized and (C) take all reasonable
actions requested by such Person to mitigate or avoid such illegality.
(c) Notwithstanding
anything contained in this Article III to the contrary, a Lender shall not be entitled to exercise the rights under Section 3.02
to the extent such Lender is not generally exercising such rights against other similarly situated borrowers under similar circumstances.
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3.03 Inability
to Determine Rates.
(a) If
in connection with any request for a Term SOFR Loan or an Alternative Currency Loan or (to the extent applicable) a conversion to or
continuation thereof, (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that
(A) deposits (whether in Dollars, Canadian Dollars or another Alternative Currency) are not being offered to banks in the applicable
interbank market for such currency, for the applicable amount and Interest Period of such Term SOFR Loan or Alternative Currency Loan,
for the applicable amount and Interest Period of such Term SOFR Loan or Alternative Currency Loan, (B)(1) in the case of any Alternative
Currency Loan, no Alternative Currency Successor Rate for the Relevant Rate for the applicable Alternative Currency has been determined
in accordance with Section 3.07(b) and the circumstances under Section 3.07(b)(i) or the Alternative
Currency Scheduled Unavailability Date has occurred with respect to such Relevant Rate (as applicable), or (2) in the case of any
Term SOFR Loan, no Term SOFR Successor Rate has been determined in accordance with Section 3.07(c) and the circumstances
under Section 3.07(c)(i) or the Term SOFR Scheduled Unavailability Date has occurred, (C) adequate and reasonable
means do not exist for determining Term SOFR, the Alternative Currency Term Rate or the Alternative Currency Daily Rate, as applicable,
for any requested Interest Period with respect to a proposed Term SOFR Loan or Alternative Currency Term Rate Loan, or in connection
with an existing or proposed Base Rate Loan or Alternative Currency Daily Rate Loan, or (D) a fundamental change has occurred in
the foreign exchange or interbank markets with respect to an Alternative Currency (including changes in national or international financial,
political or economic conditions or currency exchange rates or exchange controls) (in each case with respect to clause (i), “Impacted
Loans”) or (ii) the Administrative Agent or the Required Lenders determine that for any reason Term SOFR or the Alternative
Currency Term Rate, as applicable, for any requested Interest Period with respect to a proposed Term SOFR Loan or Alternative Currency
Term Rate Loan, or the Alternative Currency Daily Rate with respect to a proposed Alternative Currency Daily Rate Loan for any requested
determination date, does not adequately and fairly reflect the cost to such Lenders of funding such Term SOFR Loan or Alternative Currency
Loan, as applicable, the Administrative Agent will promptly so notify the Company and each Lender. Thereafter, (x) the obligation
of the Lenders to make or maintain Loans in the affected currency or currencies shall be suspended, (to the extent of the affected Loans, Interest
Periods or determination dates, as applicable), and (y) in the event of a determination described in the preceding sentence with
respect to the Term SOFR component of the Base Rate, the utilization of the Term SOFR component in determining the Base Rate shall be
suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt
of such notice, (1) the Company may revoke any pending request for a Borrowing of, conversion to or continuation (as applicable)
of Term SOFR Loans or Alternative Currency Loans (in each case to the extent of the affected Loans, Interest Periods or determination
dates, as applicable), or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans
in the Dollar Equivalent of the amount specified therein and (2) any outstanding affected Loans denominated in an Alternative Currency,
at the Company’s election, shall either (I) be converted into a Borrowing of Base Rate Loans in the Dollar Equivalent of the
amount of such outstanding Alternative Currency Loan immediately, in the case of an Alternative Currency Daily Rate Loan or Canadian
Prime Rate Loan or at the end of the applicable Interest Period, in the case of an Alternative Currency Term Rate Loan, or (II) be
prepaid in full immediately, in the case of an Alternative Currency Daily Rate Loan or Canadian Prime Rate Loan or at the end of the
applicable Interest Period, in the case of an Alternative Currency Term Rate Loan; provided that if no election is made by the
applicable Borrower (x) in the case of an Alternative Currency Daily Rate Loan or Canadian Prime Rate Loan, by the date that is
three (3) Business Days after receipt by the applicable Borrower of such notice or (y) in the case of an Alternative Currency
Term Rate Loan, by the last day of the current Interest Period for the applicable Alternative Currency Term Rate Loan, the Borrower shall
be deemed to have elected clause (I) above.
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(b) Notwithstanding
the foregoing, if the Administrative Agent has made the determination described in clause (a)(i) of this Section 3.03,
the Administrative Agent, in consultation with the Company and the Required Lenders, 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 clause (a)(i) of this Section 3.03,
(ii) the Administrative Agent or the Required Lenders notify the Administrative Agent and the Company 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 Change in 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 Company written notice thereof.
3.04 Increased
Costs; Reserves.
(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 (except any reserve requirement contemplated by Section 3.04(e))
or any L/C Issuer;
(ii) subject
any Recipient to any Taxes (other than (A) Indemnified Taxes,
(B) Taxes
described in clauses (b) through (e) of the definition of Excluded Taxes and
(C) Connection
Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities
or capital attributable thereto; or
(iii) impose
on any Lender or any L/C Issuer or the applicable interbank market any other condition, cost or expense affecting this Agreement, Term
SOFR Loans or Alternative Currency 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, converting to, continuing or maintaining any Loan (or of
maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such 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 such L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or such L/C Issuer, in each case in an amount deemed by such Lender or such L/C Issuer to be
material, the Company will pay (or cause the applicable Designated Borrower to pay) to such Lender or such L/C Issuer, as the case may
be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs
incurred or reduction suffered; provided that the Borrowers shall not be required to compensate a Lender or an L/C Issuer pursuant
to this Section 3.04(a) for any additional amounts incurred more than ninety (90) days prior to the date that such Lender
or such L/C Issuer notifies the Borrowers of the Change in Law giving rise to such additional amounts and of such Lender’s or such
L/C Issuer’s intention to claim compensation therefor; provided that, if the Change in Law giving rise to such additional
amounts is retroactive, then such 90-day period referred to above shall be extended to include the period of retroactive effect thereof.
(b) Capital
Requirements. If any Lender or any L/C Issuer determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending
Office of such Lender or such Lender’s or such 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 such L/C Issuer’s capital or on the capital
of such Lender’s or such 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 or Swing Line Loans held by, such Lender, or the Letters of Credit
issued by such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s
holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C Issuer’s
policies and the policies of such Lender’s or such L/C Issuer’s holding company with respect to capital adequacy), in each
case in an amount deemed by such Lender or such L/C Issuer to be material, then from time to time the Company will pay (or cause the
applicable Designated Borrower to pay) to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or such L/C Issuer or such Lender’s or such 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 an L/C Issuer (i) setting forth in reasonable detail the amount or amounts necessary
to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in clauses (a) or (b) of
this Section 3.04 and (ii) setting forth in reasonable detail the manner in which such amount was deferred, which shall
be conclusive absent manifest error, and shall be delivered to the Company. The Company shall pay (or cause the applicable Designated
Borrower to pay) such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten (10) days
after receipt thereof. Notwithstanding anything contained in this Article III to the contrary, a Lender shall not be entitled
to any compensation pursuant to Section 3.04 to the extent such Lender is not generally imposing such charges or requesting
such compensation from other similarly situated borrowers under similar circumstances.
(d) Delay
in Requests. Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions
of this Section 3.04 shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such
compensation; provided that no Borrower shall be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions
of this Section 3.04 for any increased costs incurred or reductions suffered more than nine (9) months prior to the
date that such Lender or such L/C Issuer, as the case may be, notifies the Company of the Change in Law giving rise to such increased
costs or reductions and of such Lender’s or such 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).
(e) Additional
Reserve Requirements. The Company shall pay (or cause the applicable Designated Borrower to pay) to each Lender, as long as such Lender shall be required to comply with any reserve ratio requirement
or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments
or the funding of Alternative Currency Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary,
to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable
on such Loan; provided the Company shall have received at least ten (10) days’ prior notice (with a copy to the Administrative
Agent) of such additional interest or costs from such Lender. If a Lender fails to give notice ten (10) days prior to the relevant
Interest Payment Date, such additional interest or costs shall be due and payable ten (10) days from receipt of such notice.
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3.05 Compensation
for Losses. The Company shall compensate (or cause the applicable Designated Borrower to 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 Loan other than a Base Rate Loan, Alternative Currency Daily Rate Loan or Canadian
Prime Rate 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 any Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan, Alternative Currency Daily Rate Loan or Canadian Prime Rate Loan on the date or in the amount notified
by the Company or the applicable Designated Borrower;
(c) any
failure by any Borrower to make payment of any Loan or drawing under any Letter of Credit (or interest due thereon) denominated in an
Alternative Currency on its scheduled due date or any payment thereof in a different currency; or
(d) any
assignment of a Term SOFR Loan or Alternative Currency Term Rate Loan on a day other than the last day of the Interest Period therefor
as a result of a request by the Company pursuant to Section 10.13;
including any foreign exchange losses and any
loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate
the deposits from which such funds were obtained or from the performance of any foreign exchange contract, but in any event, excluding
loss of anticipated profit. The Company will (or will cause the applicable Borrower to), within ten (10) Business Days after the
Company’s (or applicable Borrower’s) receipt of a certificate of the type described in Section 3.04(c), pay such
Lender such additional amounts as will compensate such Lender for such losses, costs and expenses.
For purposes of calculating
amounts payable by the Company (or the applicable Designated Borrower) to the Lenders under this Section 3.05, (x) [reserved],
(y) each Lender shall be deemed to have funded each Term SOFR Loan made by such Lender at Term SOFR for such Loan by a matching deposit
or other borrowing in the interbank market for such currency for a comparable amount and for a comparable period, whether or not such
Term SOFR Loan was in fact so funded, and (z) each Lender shall be deemed to have funded each Alternative Currency Term Rate Loan
made by such Lender at the Alternative Currency Term Rate for such Loan by a matching deposit or other borrowing in the interbank market
for such currency for a comparable amount and for a comparable period, whether or not such Alternative Currency Term Rate Loan was in
fact so funded.
3.06 Mitigation
Obligations; Replacement of Lenders.
(a) Designation
of a Different Lending Office. If any Lender requests compensation under Section 3.04, or requires any Borrower to pay
any Indemnified Taxes or additional amounts to any Lender, any L/C Issuer, or any Governmental Authority for the account of any Lender
or any L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at
the request of the Company such Lender or such 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 such 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 such L/C Issuer,
as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or such L/C Issuer,
as the case may be. The Company hereby agrees to pay (or cause the applicable Designated Borrower to pay) all reasonable costs and expenses
incurred by any Lender or any 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 any Borrower is required to pay any Indemnified Taxes or additional amounts 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(a), the Company may replace such Lender in accordance
with Section 10.13.
3.07 Replacement
of Rates.
(a) [Reserved].
(b) Relevant
Rate for Alternative Currencies. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including
Section 10.01 hereof), if the Administrative Agent determines (which determination shall be conclusive absent manifest error),
or the Company or Required Revolving Lenders notify the Administrative Agent (with, in the case of the Required Revolving Lenders, a copy
to the Company) that the Company or the Required Revolving Lenders (as applicable) have determined, that:
(i) adequate
and reasonable means do not exist for ascertaining the Relevant Rate for an Alternative Currency because none of the tenors of such Relevant
Rate (including any forward-looking term rate thereof) is available or published on a current basis and such circumstances are unlikely
to be temporary; or
(ii) the
Applicable Authority has made a public statement identifying a specific date after which all tenors of the Relevant Rate for an Alternative
Currency (including any forward-looking term rate thereof) shall or will no longer be representative or made available, or used for determining
the interest rate of loans denominated in such Alternative Currency, or shall or will otherwise cease; provided that, in each case,
at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent that will continue
to provide such representative tenor(s) of the Relevant Rate for such Alternative Currency (the latest date on which all tenors of
the Relevant Rate for such Alternative Currency (including any forward-looking term rate thereof) are no longer representative or available
permanently or indefinitely, the “Alternative Currency Scheduled Unavailability Date”); or
(iii) syndicated
loans currently being executed and agented in the U.S., are being executed or amended (as applicable) to incorporate or adopt a new benchmark
interest rate to replace the Relevant Rate for an Alternative Currency;
or if the events or circumstances of
the type described in Section 3.07(b)(i), (ii) or (iii) have occurred with respect to an Alternative
Currency Successor Rate then in effect, then, the Administrative Agent and the Company may amend this Agreement solely for the purpose
of replacing the Relevant Rate for an Alternative Currency or any then current Alternative Currency Successor Rate for an Alternative
Currency in accordance with this Section 3.07(b) with an alternative benchmark rate giving due consideration to any
evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in such Alternative
Currency for such alternative benchmarks, and, in each case, including any mathematical or other adjustments to such benchmark giving
due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated
in such Alternative Currency for such benchmarks (and any such proposed rate, including for the avoidance of doubt, any adjustment thereto,
an “Alternative Currency Successor Rate”), and any such amendment shall become effective at 5:00 p.m. on the
fifth (5th) Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Company
unless, prior to such time, Lenders comprising the Required Revolving Lenders have delivered to the Administrative Agent written notice
that the Required Revolving Lenders object to such amendment.
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The Administrative
Agent will promptly (in one or more notices) notify the Company and each Lender of the implementation of any Alternative Currency Successor
Rate.
Any Alternative
Currency Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice
is not administratively feasible for the Administrative Agent, such Alternative Currency Successor Rate shall be applied in a manner as
otherwise reasonably determined by the Administrative Agent.
Notwithstanding
anything else herein to the contrary, if at any time any Alternative Currency Successor Rate as so determined would otherwise be less
than zero, the Alternative Currency Successor Rate will be deemed to be zero for purposes of this Agreement and the other Loan Documents.
In connection with
the implementation of an Alternative Currency Successor Rate, the Administrative Agent will have the right to make Conforming Changes
from time to time in consultation with the Borrowers 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; provided that, with respect to any such amendment so effected, the Administrative Agent shall post each such amendment
implementing such Conforming Changes to the Company and the Lenders reasonably promptly after such amendment becomes effective.
For purposes of
this Section 3.07(b), those Lenders that either have not made, or do not have an obligation under this Agreement to make,
Loans denominated in the applicable Alternative Currency shall be excluded from any determination of Required Revolving Lenders for purposes
of the establishment of an Alternative Currency Successor Rate with respect to such Alternative Currency.
(c) Term
SOFR Replacement Setting. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including Section 10.01
hereof), if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Company or Required
Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Company) that the Company or Required
Lenders (as applicable) have determined that:
(i) adequate
and reasonable means do not exist for ascertaining one (1) month, three (3) month and six (6) month interest periods of
Term SOFR, including because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely
to be temporary; or
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(ii) CME
or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent
or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement
identifying a specific date after which one (1) month, three (3) month and six (6) month interest periods of Term SOFR
or the Term SOFR Screen Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of Dollar
denominated syndicated loans, or shall or will otherwise cease; provided that at the time of such statement, there is no successor
administrator that is satisfactory to the Administrative Agent that will continue to provide such interest periods of Term SOFR after
such specific date (the latest date on which one (1) month, three (3) month, and six (6) month interest periods of Term
SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Term SOFR Scheduled Unavailability
Date”);
then, on a date and time determined
by the Administrative Agent (any such date, a “Term SOFR Replacement Date”), which date shall be at the end of an Interest
Period or on the relevant Interest Payment Date, as applicable, for interest calculated and, solely with respect to clause (ii)
of this Section 3.07(c), no later than the Term SOFR Scheduled Unavailability Date, Term SOFR will be replaced hereunder
and under any Loan Document with Daily Simple SOFR for any payment period for interest calculated that can be determined by the Administrative
Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document
(any such successor rate established pursuant to this Section 3.07(c), a “Term SOFR Successor Rate”, and
together with the Alternative Currency Successor Rate, each a “Successor Rate”).
If the Term SOFR Successor Rate is Daily
Simple SOFR, all interest payments will be payable on a quarterly basis.
Notwithstanding
anything to the contrary herein, (A) if the Administrative Agent determines that Daily Simple SOFR is not available on or prior to
the Term SOFR Replacement Date or (B) if the events or circumstances of the type described in clauses (i) or (ii) of
this Section 3.07(c) have occurred with respect to the Term SOFR Successor Rate then in effect, then, in each case, the
Administrative Agent and the Company may amend this Agreement solely for the purpose of replacing Term SOFR or any then-current Term SOFR
Successor Rate in accordance with this Section 3.07(c) at the end of any Interest Period, relevant Interest Payment Date
or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving
or then-existing convention for similar Dollar denominated credit facilities syndicated and agented in the United States for such alternative
benchmark and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving
or then-existing convention for similar Dollar denominated credit facilities syndicated and agented in the United States for such benchmark.
For the avoidance of doubt, any such proposed rate and adjustments shall constitute a “Term SOFR Successor Rate”. Any such
amendment shall become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent shall have
posted such proposed amendment to all Lenders and the Company unless, prior to such time, Lenders comprising the Required Lenders have
delivered to the Administrative Agent written notice that such Required Lenders object to such amendment.
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The Administrative
Agent will promptly (in one or more notices) notify the Company and each Lender of the implementation of any Term SOFR Successor Rate.
Any Term SOFR Successor
Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively
feasible for the Administrative Agent, such Term SOFR Successor Rate shall be applied in a manner as otherwise reasonably determined by
the Administrative Agent.
Notwithstanding
anything else herein, if at any time any Term SOFR Successor Rate as so determined would otherwise be less than zero, such Term SOFR Successor
Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.
In connection with
the implementation of a Term SOFR Successor Rate, the Administrative Agent will have the right to make Conforming Changes from time to
time in consultation with the Borrowers 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;
provided that with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing
such Conforming Changes to the Company and the Lenders reasonably promptly after such amendment becomes effective.
For purposes of
this Section 3.07(c), those Lenders that either have not made, or do not have an obligation under this Agreement to make,
Term SOFR Loans (or Loans accruing interest by reference to a Term SOFR Successor Rate, as applicable) shall be excluded from any determination
of Required Lenders.
3.08 Survival. All
obligations of the Loan Parties under this Article III shall survive termination of the Aggregate Commitments, repayment
of all other Obligations hereunder, resignation of the Administrative Agent and the Facility Termination Date.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions
of Initial Credit Extension. The obligation of each 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 reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed
counterparts of this Agreement and each other Loan Document;
(ii) as
to each Borrower, a Note executed by such Borrower in favor of each Lender requesting Notes;
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(iii) searches
of filings made under the UCC, the PPSA, the Bank Act (Canada) or other applicable Law, in each case in the jurisdiction of formation
of each Loan Party and each other jurisdiction reasonably deemed appropriate by the Administrative Agent;
(iv) such
UCC and PPSA financing statements or similar documents required under any other applicable Law in the name of each Loan Party for each
appropriate jurisdiction as is necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s
security interest in the Collateral;
(v) except
as provided in Section 6.19, all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent
pursuant to the Security Agreements, together with duly executed in blank, undated stock powers attached thereto (unless, with respect
to the pledged Equity Interests of any Non-U.S. Subsidiary, such stock powers are deemed unnecessary by the Administrative Agent in its
reasonable discretion under the law of the jurisdiction of organization of such Person);
(vi) searches
of ownership of, and Liens on, United States and Canadian intellectual property registrations and applications of each Loan Party in the
appropriate governmental offices;
(vii) duly
executed notices of grant of security interest in the form required by the Security Agreements as are necessary, in the Administrative
Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States and Canadian intellectual
property registrations and applications of the Loan Parties;
(viii) 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 reasonably 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;
(ix) 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 Borrowers and the Restricted Subsidiaries is validly existing and in good standing in its jurisdiction of
organization or formation;
(x) except
as provided in Section 6.19, a favorable opinion of each of (A) Arnold & Porter Kaye Scholer LLP, U.S. counsel
to the Loan Parties, (B) Blake, Cassels & Graydon LLP, Canadian counsel to the Loan Parties and (C) local counsel to
the Loan Parties (or, where consistent with local practice, counsel to the Administrative Agent) in each other jurisdiction for which
the Administrative Agent has requested a legal opinion, in each case addressed to the Administrative Agent and each Lender, as to such
matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(xi) a
certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.01(b),
4.01(c), 4.02(a) and 4.02(b) have been satisfied and (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;
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(xii) a
certificate signed by the chief financial officer of the Company certifying that the Company and its Subsidiaries are Solvent on a consolidated
basis after giving effect to the Credit Extensions to be made hereunder on the Closing Date;
(xiii) a
perfection certificate in form and substance reasonably satisfactory to the Administrative Agent and signed by a Responsible Officer of
the Company;
(xiv) evidence
reasonably satisfactory to the Administrative Agent that all insurance required to be maintained pursuant to the Loan Documents has been
obtained and is in effect;
(xv) copies
of (A) the audited consolidated balance sheets of the Company and its Subsidiaries for the fiscal year ended December 31, 2023
and the related consolidated statements of operations, comprehensive income, changes in equity and cash flows for such fiscal years of
the Company and its Subsidiaries, including the notes thereto, (B) unaudited consolidated financial statements of the Company and
its Subsidiaries for the fiscal quarter ended March 31, 2024, including balance sheets and statements of income or operations, shareholders’
equity and cash flows (the “Interim Financial Statements”) and annual projections for the Company and its Subsidiaries
for the five (5) full fiscal years ending after the Closing Date; and
(xvi) with
respect to the Irish Loan Parties and/or any Collateral Documents governed by Irish law:
(A) evidence
that any process agent has accepted its appointment;
(B) a
written authorization from the Irish Loan Parties, authorizing each solicitor that is serving as Irish counsel to the Administrative Agent
to sign on behalf of the Irish Loan Parties all required security related registration forms required to be delivered to the Companies
Registration Office of Ireland in connection with all or any of the Collateral; and
(C) a
certificate of a Responsible Officer of each Irish Loan Party confirming that (1) Section 82 of the Irish Companies Act has
no application to the entry by such Irish Loan Party into the Loan Documents and to the performance of its obligations thereunder; and
(2) such Irish Loan Party and each other Loan Party constitute a “group of companies” for the purposes of Section 243
of the Irish Companies Act.
(b) Substantially
concurrently herewith, all obligations under the Existing Credit Agreement shall have been repaid in full (other than contingent indemnification
obligations for which no claim or demand has yet been made) and all commitments thereunder shall have been terminated; provided
that the loans and commitments of lenders under the Existing Credit Agreement that will be Lenders hereunder may be “rolled”
into the Loans hereunder or otherwise settled through any cashless settlement mechanism approved by the Borrowers, the Administrative
Agent and the applicable Lender.
(c) There
shall not exist any action, suit, investigation or proceeding pending or, to the knowledge of the Company or any other Loan Party, threatened
in writing in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse
Effect.
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(d) The
Company shall have used commercially reasonable efforts (it being understood and agreed that “commercially reasonable efforts”
shall in any event include the payment by the Company of customary rating agency fees and cooperation with information and data requests
by Moody’s and S&P in connection with their ratings process) to provide to the Administrative Agent (i) a public corporate
family rating of the Company from Moody’s, (ii) a public corporate credit rating of the Company from S&P and (iii) a
current, non-credit-enhanced, senior secured long-term debt rating with respect to the Term B Loan from each of S&P and Moody’s
(but not, in the case of any of clauses (i) through (iii), a particular rating).
(e) The
Administrative Agent and the Lenders shall have completed due diligence of the Loan Parties and their respective Subsidiaries in scope,
and with results, reasonably satisfactory to the Administrative Agent and the Lenders, including OFAC, FCPA and Corruption of Foreign
Public Officials Act (Canada).
(f) The
Administrative Agent and the Lenders shall have received all documentation and other information with respect to each Loan Party requested
in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that any Lender determines is required
by regulatory authorities under applicable Law, including without limitation the PATRIOT Act, the Canadian AML Acts and applicable U.S.
and Canadian law regarding anti-money laundering, anti-terrorist financing, government sanction and “know your customer” matters.
(g) At
least three (3) Business Days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under
the Beneficial Ownership Regulation shall have delivered to each Lender that so requests a Beneficial Ownership Certification in relation
to such Borrower.
(h) Unless
waived by the Administrative Agent, the Company shall have paid (i) all fees and expenses required to be paid on the Closing Date
pursuant to the Fee Letters or other writing between or among the Company and any lender(s) and (ii) 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 and as shall be identified in the invoice provided at least three (3) Business Days prior to the Closing Date (provided
that such estimate shall not thereafter preclude a final settling of accounts between the Company 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.
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4.02 Conditions
to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (including a Request for Credit
Extension relating to an advance under an Incremental Facility but excluding a Loan Notice requesting only a conversion of Loans to another
Type or a continuation of Term SOFR Loans, Alternative Currency Term Rate Loans) is subject to the following conditions precedent:
(a) The
representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in
each 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 in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects)
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 in all material respects (or, if qualified by materiality or reference to Material
Adverse Effect, in all respects) as of such earlier date, and except that for purposes of this Section 4.02, the representations
and warranties contained in clauses (a) and (b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(b) No
Default or Event of 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 applicable L/C Issuer(s) or the Swing Line Lender shall have received a Request for
Credit Extension in accordance with the requirements hereof.
(d) If
the applicable Borrower is a Designated Borrower, then the conditions of Section 2.15 to the designation of such Borrower
as a Designated Borrower shall have been met to the reasonable satisfaction of the Administrative Agent.
(e) In
the case of a Credit Extension to be denominated in an Alternative Currency, such currency remains an Eligible Currency.
(f) There
shall be no restriction, limitation, prohibition or material impediment imposed under Law or by any Governmental Authority as to the proposed
Credit Extension or the repayment thereof or as to rights created under any Loan Document or as to application of the proceeds of the
realization of any such rights.
Notwithstanding anything to
the contrary contained in this Agreement, the conditions set forth in clauses (a) and (b) of this Section 4.02
shall be subject to the provisions of Section 1.10 in the case of any Incremental Term Facility used to finance a Limited
Condition Acquisition.
Each Request for Credit Extension
(other than a Loan Notice requesting only a conversion of Loans to another Type or a continuation of Term SOFR Loans, Alternative Currency
Term Rate Loans) submitted by any Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Each Loan Party jointly and
severally represents and warrants to the Administrative Agent and the Lenders that:
5.01 Existence,
Qualification and Power. Each Loan Party and each Restricted Subsidiary (a) is (i) duly incorporated, organized or formed,
(ii) validly existing and (iii) in good standing (to the extent applicable) under the Laws of the jurisdiction of its incorporation
or organization (and, with respect to any Spanish Guarantor, is not in a situation which would require it to be dissolved according to
Article 363 of the Spanish Companies Law and, if so, the situation has been resolved for the purposes of removing the grounds for
winding up as provided in Article 365 of the Spanish Companies Law), (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and
(to the extent applicable) in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or
(c), to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.
5.02 Authorization;
No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party,
(a) have been duly authorized by all necessary corporate or other organizational action, and (b) do not and will not (i) contravene
the terms of any of such Person’s Organization Documents; (ii) conflict with or result in any breach or contravention of, or
the creation of any Lien (other than Liens under the Loan Documents) under, or require any payment to be made under (A) any material
Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any Restricted Subsidiary
or (B) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or
its property is subject; or (iii) violate any material Law.
5.03 Governmental
Authorization; Other Consents. No material approval, consent, exemption, authorization, or other material action by, or material notice
to, or material filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution,
delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document other than (a) those
that have already been obtained and are in full force and effect and (b) prior to the Collateral Release Date, filings to perfect
the Liens created by the Collateral Documents.
5.04 Binding
Effect. 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. This Agreement constitutes, and each other Loan Document when so delivered will constitute,
a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with
its terms, except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws or by general principles
of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
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5.05 Financial
Statements; No Material Adverse Effect.
(a) The
Audited Financial Statements (i) were prepared in accordance with the Applicable Accounting Standard consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the financial
condition of the Company and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in
accordance with the Applicable Accounting Standard consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Company and its Subsidiaries
as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.
(b) The
Interim Financial Statements (i) were prepared in accordance with the Applicable Accounting Standard consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial
condition of the Company and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject,
in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments and (iii) show
all material indebtedness and other liabilities, direct or contingent, of the Company and its consolidated Subsidiaries as of the date
of such financial statements, including liabilities for taxes, material commitments and Indebtedness.
(c) Since
the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has
had or would reasonably be expected to have a Material Adverse Effect.
5.06 Litigation.
There are not any actions, suits or proceedings at law or in equity or by or before any Governmental Authority now pending or, to
the knowledge of the Company, threatened (and reasonably likely to be commenced) in writing against the Company or any of its Restricted
Subsidiaries or any property or rights of the Company or any of its Restricted Subsidiaries as to which there is a reasonable likelihood
of an adverse determination and which, if adversely determined, would individually or in the aggregate result in a Material Adverse Effect.
5.07 No
Default. Neither any Loan Party nor any Restricted Subsidiary thereof is in default under or with respect to any Contractual Obligation
that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred
and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
5.08 Ownership
of Property; Liens. Each Loan Party and each Restricted Subsidiary has good record and marketable title in fee simple (or similar
concept under the Law of any applicable jurisdiction) to, or valid leasehold interests (or similar concept under the Law of any applicable
jurisdiction) in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of the Loan Parties and
the Restricted Subsidiaries is subject to no Liens, other than Permitted Liens.
5.09 Environmental
Compliance. The Loan Parties and their Restricted Subsidiaries conduct in the ordinary course of business a review of the effect of
existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their
respective businesses, operations and properties, and as a result thereof the Company has reasonably concluded that such Environmental
Laws and claims would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.10 Insurance.
The properties of the Company and the Restricted Subsidiaries are insured with financially sound and reputable insurance companies not
Affiliates of the Company, 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 applicable Loan Party operates.
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5.11 Taxes. The
Company and the Restricted Subsidiaries have filed all federal, state, provincial and territorial income tax returns and other tax returns
and reports required to be filed, except where such failure to file would not reasonably be likely to have a Material Adverse Effect,
and have paid all federal, state, provincial and territorial income and other taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with the Applicable
Accounting Standard as in effect on such date or in respect of which such failure to pay would not reasonably be likely to have a Material
Adverse Effect. To the knowledge of the Company and its Restricted Subsidiaries, there is no proposed Tax assessment against the Company
or any Restricted Subsidiary that would, if made, have a Material Adverse Effect. Neither the Company nor any Restricted Subsidiary is
party to any tax sharing agreement.
5.12 ERISA
and Canadian Pension Plan Compliance.
(a) Each
Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state laws. Each
Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination
letter from the IRS to the effect that the form of such Pension Plan is qualified under Section 401(a) of the Code and the trust
related thereto has been determined by the IRS to be exempt from federal income tax under Section 501(a) of the Code, or an
application for such a letter is currently being processed by the IRS. To the best knowledge of the Company, nothing has occurred that
would prevent or cause the loss of such tax-qualified status.
(b) There
are no pending or, to the best knowledge of the Company, threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or would reasonably be expected to
result in a Material Adverse Effect.
(c) Other
than as would not reasonably be expected to result in a Material Adverse Effect, (i) no ERISA Event has occurred, and neither the
Company nor, to the knowledge of the Borrowers, any ERISA Affiliate is aware of any fact, event or circumstance that would reasonably
be expected to constitute or result in an ERISA Event with respect to any Pension Plan or Multiemployer Plan; (ii) the Company and,
to the knowledge of the Borrowers, each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect
of each Pension Plan and Multiemployer Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has
been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage
(as defined in Section 430(d)(2) of the Code) is sixty percent (60%) or higher and neither the Company nor, to the knowledge
of the Borrowers, any ERISA Affiliate knows of any facts or circumstances that would reasonably be expected to cause the funding target
attainment percentage for any such plan to drop below sixty percent (60%) as of the most recent valuation date; (iv) neither the
Company nor, to the knowledge of the Borrowers any ERISA Affiliate has incurred any liability to the PBGC other than for the payment
of premiums, and there are no premium payments which have become due that are unpaid; (v) neither the Company nor any ERISA Affiliate
has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension
Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that
would reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.
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(d) As
of the Second Amendment Effective Date none of the Borrowers is or will be using “plan assets” (within the meaning of 29 CFR
§ 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters
of Credit or the Commitments.
(e) (i) Each
Canadian Pension Plan is in compliance in all material respects with the applicable provisions of all applicable Laws and (ii) each
Canadian Pension Plan has received a confirmation of registration from the Canada Revenue Agency and, to the best knowledge of the Company,
nothing has occurred which would prevent, or cause the loss of, such registration. Each Loan Party and each Subsidiary has made all required
contributions to each Canadian Pension Plan.
(f) There
are no pending or, to the best knowledge of the Company, threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Canadian Pension Plan that could reasonably be expected to have a Material Adverse Effect. There has been no violation
of fiduciary duty with respect to any Canadian Pension Plan that has resulted or would reasonably be expected to result in a Material
Adverse Effect.
(g) No
Loan Party or Subsidiary maintains, contributes to, or has any liability or contingent liability with respect to, a Canadian Defined Benefit
Pension Plan.
5.13 Subsidiaries;
Equity Interests. Set forth on Schedule 5.13 is a complete and accurate list as of the Second Amendment Effective Date of each
Subsidiary, together with (a) such Subsidiary’s jurisdiction of organization or incorporation (as the case may be), (b) the
number of shares of each class of Equity Interests of such Subsidiary outstanding, (c) the number and percentage of each class of
outstanding shares of such Subsidiary owned (directly or indirectly) by the Company or any Subsidiary and (d) an indication as to
whether such Subsidiary is a Restricted Subsidiary or an Unrestricted Subsidiary, an Excluded Subsidiary (and, if so, the type (e.g.,
an Immaterial Subsidiary) of such Excluded Subsidiary), a CFC Holdco and/or a CFC. The outstanding Equity Interests of each Restricted
Subsidiary are validly issued, fully paid and non-assessable (to the extent applicable) and are owned by a Loan Party in the amounts specified
on Schedule 5.13 free and clear of all Liens other than (x) prior to the Collateral Release Date, the Liens created pursuant
to the applicable Collateral Documents and (y) inchoate and other non-consensual Permitted Liens.
5.14 Margin
Regulations; Investment Company Act.
(a) No
Loan Party is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock
and the Credit Extensions hereunder will not be used to purchase or carry margin stock in violation of Regulation U or to extend credit
to others for the purpose of purchasing or carrying margin stock or for any purpose that would violate the provisions of Regulation X
issued by the FRB, as in effect from time to time.
(b) None
of the Company, any Person Controlling the Company, or any Restricted Subsidiary is or is required to be registered as an “investment
company” under the Investment Company Act of 1940.
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5.15 Disclosure.
No report, financial statement, certificate or other written information furnished (other than projected financial information and
information of a general economic or industry-specific nature) by or on behalf of any Loan Party to the Administrative Agent or any Lender
in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other
Loan Document (in each case, as modified or supplemented by other information so furnished), when taken as a whole, contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein not materially misleading in light of
the circumstances under which they were made; provided that, with respect to projected financial information, the Company represents
only that such projected financial information was prepared in good faith based upon assumptions believed to be reasonable at the time
and estimates as of the date of preparation (it being understood and agreed that such projections are as to future events and are not
to be viewed as facts and are subject to significant uncertainties and contingencies, many of which are beyond the control of the Company
and its Subsidiaries, that no assurance can be given that any particular projection will be realized, that actual results during the period
or periods covered by any such projected financial information may differ significantly from the projected results and such differences
may be material, and that such projected financial information is not a representation by the Company or any of its Subsidiaries that
such projections will be achieved). As of the Second Amendment Effective Date, to the knowledge of the Company the information included
in the Beneficial Ownership Certification, if applicable, is true and correct in all respects.
5.16 Compliance
with Laws. Each Loan Party and each Restricted Subsidiary is in compliance in all material respects with the requirements of all applicable
Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted
or (b) the failure to comply therewith, either individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
5.17 Taxpayer
Identification Number; Other Identifying Information. The true and correct U.S. taxpayer identification number of the Initial U.S.
Borrower and each Designated Borrower that is a U.S. Subsidiary and a party hereto on the Second Amendment Effective Date is set forth
on Schedule 5.17. The true and correct unique corporate or other identification number of each Canadian Borrower and each Designated
Borrower that is a Non-U.S. Subsidiary and a party hereto on the Second Amendment Effective Date that has been issued by its jurisdiction
of organization and the name of such jurisdiction are set forth on Schedule 5.17.
5.18 Casualty,
Etc. As of the Second Amendment Effective Date, neither the businesses nor the properties of any Loan Party or any of its Restricted
Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that, either individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
5.19 Solvency.
The Company and its Restricted Subsidiaries, on a consolidated basis, are Solvent.
5.20 Intellectual
Property; Licenses, Etc. The Company and its Restricted Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses except where and to the extent any
lack of ownership or possession would not reasonably be expected to have a Material Adverse Effect, without conflict with the rights
of any other Person except where and to the extent any such conflict would not reasonably be expected to have a Material Adverse Effect.
To the knowledge of the Company, no slogan or other advertising device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Company or any Loan Party infringes upon any rights held by any other Person that
would reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or,
to the knowledge of the Borrowers, threatened in writing (and reasonably likely to be commenced), which, either individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
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5.21 Labor
Matters. Except as set forth on Schedule 5.21, there are no collective bargaining agreements or Multiemployer Plans covering
the employees of the Company or any Restricted Subsidiary as of the Second Amendment Effective Date and neither the Company nor any Restricted
Subsidiary has suffered any material strikes, walkouts, work stoppages or other labor difficulty in the three (3) years preceding
the Second Amendment Effective Date.
5.22 OFAC.
Neither the Company, nor any of its Subsidiaries, nor, to the knowledge of the Company and its Subsidiaries, any director, officer,
employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by any individual
or entity that is (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially Designated
nationals, the Canadian Sanctions List, FCDO’s UK Sanctions List, or any similar list enforced by any other relevant sanctions authority
or (iii) located, organized or resident in a Designated Jurisdiction. The Loan Parties have instituted and maintained policies and
procedures designed to promote and achieve compliance with the foregoing.
5.23 Anti-Corruption
Laws.
To the extent applicable,
the Company and its Subsidiaries have conducted their businesses in compliance in all material respects with the United States Foreign
Corrupt Practices Act of 1977, the Corruption of Foreign Public Officials Act (Canada), the UK Bribery Act 2010, the Criminal Justice
(Corruption Offences) Act 2018 of Ireland, the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 to 2021 of Ireland,
and, to the extent applicable, other similar anti-corruption legislation in other jurisdictions and have instituted and maintained policies
and procedures designed to promote and achieve compliance with such laws.
5.24 Collateral
Documents.
Prior to the Collateral Release
Date, the Collateral Documents create valid security interests in, and Liens on, the Collateral purported to be covered thereby, which
security interests and Liens are currently (or, upon delivery of Collateral to the Administrative Agent and/or when the appropriate filings
or other actions required by the applicable Collateral Document or by applicable law have been filed or taken, will be) perfected security
interests and Liens (to the extent such security interests and Liens are required to be perfected under the terms of the Collateral Documents)
to the extent such security interests and Liens can be perfected by such delivery, filings and actions, prior to all other Liens other
than Permitted Liens.
5.25 Representations
as to Non-U.S. Obligors.
Each of the Company and each
Non-U.S. Obligor represents and warrants to the Administrative Agent and the Lenders that:
(a) Such
Non-U.S. Obligor is subject to civil and commercial Laws with respect to its obligations under this Agreement and the other Loan Documents
to which it is a party (collectively as to such Non-U.S. Obligor, the “Applicable Non-U.S. Obligor Documents”), and
the execution, delivery and performance by such Non-U.S. Obligor of the Applicable Non-U.S. Obligor Documents constitute and will constitute
private and commercial acts and not public or governmental acts. Neither such Non-U.S. Obligor nor any of its property has any immunity
from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment
in aid of execution, execution or otherwise) under the laws of the jurisdiction in which such Non-U.S. Obligor is organized or incorporated
(as the case may be) and existing in respect of its obligations under the Applicable Non-U.S. Obligor Documents.
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(b) The
Applicable Non-U.S. Obligor Documents are in proper legal form under the Laws of the jurisdiction in which such Non-U.S. Obligor is organized
or incorporated (as the case may be) and existing for the enforcement thereof against such Non-U.S. Obligor under the Laws of such jurisdiction,
and to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Non-U.S. Obligor Documents.
It is not necessary to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Non-U.S.
Obligor Documents that the Applicable Non-U.S. Obligor Documents be filed, registered or recorded with, or executed or notarized before,
any court or other authority in the jurisdiction in which such Non-U.S. Obligor is organized or incorporated (as the case may be) and
existing or that any registration charge or stamp or similar tax be paid on or in respect of the Applicable Non-U.S. Obligor Documents
or any other document, except for (i) any such filing, registration, recording, execution or notarization as has been or will promptly
be made or is not required to be made until the Applicable Non-U.S. Obligor Document or any other document is sought to be enforced and
(ii) any charge or tax as has been or will be timely paid.
(c) There
is no tax, levy, impost, duty, fee, assessment or other governmental charge, or any deduction or withholding, imposed by any Governmental
Authority in or of the jurisdiction in which such Non-U.S. Obligor is organized or incorporated (as the case may be) and existing on or
by virtue of the execution or delivery of the Applicable Non-U.S. Obligor Documents, except as has been disclosed to the Administrative
Agent.
(d) The
execution, delivery and performance of the Applicable Non-U.S. Obligor Documents executed by such Non-U.S. Obligor are, under applicable
foreign exchange control regulations of the jurisdiction in which such Non-U.S. Obligor is organized or incorporated (as the case may
be) and existing, not subject to any notification or authorization except (i) such as have been made or obtained or (ii) such
as cannot be made or obtained until a later date (provided that any notification or authorization described in clause (ii) shall
be made or obtained as soon as is reasonably practicable).
(e) With
respect to each Loan Party organized in Barbados (each, a “Barbados Loan Party”), all relevant licenses, approvals
and permits required under applicable Barbados Law for such Barbados Loan Party to make payments outside of Barbados, including any required
pursuant to any applicable Barbados exchange controls, have been obtained and are in place to the extent necessary to permit such Barbados
Loan Party to make all payments required thereof pursuant to this Agreement and the other Loan Documents to which it is required to be
a party.
(f) With
respect to each Loan Party incorporated in Malaysia (a “Malaysian Loan Party”), all consents, approvals, authorizations,
licenses, exemptions, permissions, and orders which are required by any Governmental Authority or any other party, including to the extent
applicable Bank Negara Malaysia (Central Bank of Malaysia), for such Malaysian Loan Party to execute, deliver and perform its obligations
under this Agreement and each other Loan Document to which it is required to be a party and to ensure that each such Loan Document shall
be legal, valid and enforceable against such Malaysian Loan Party, have been duly obtained and are in full force and effect.
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(g) With
respect to each Irish Loan Party, such Irish Loan Party is a member of the same group of companies consisting of the Company, as a holding
company, and its subsidiaries (each within the meaning of Section 8 of the Irish Companies Act) for the purposes of Section 239
of the Irish Companies Act.
5.26 Affected
Financial Institutions.
No Loan Party is an Affected Financial Institution.
5.27 Covered
Entities.
No Loan Party is a Covered Entity.
5.28 Centre
of Main Interests.
For the purposes of the EU
Insolvency Regulation, the centre of main interest (as that term is used in Article 3(1) of the EU Insolvency Regulation) of
each Loan Party which is organized or incorporated under the laws of a member state of the European Union is situated in its jurisdiction
of incorporation and it has no “establishment” (as that term is used in Article 2(10) of the EU Insolvency Regulation)
in any other jurisdiction.
5.29 Outbound
Investment Rules.
Neither the Company nor any
of its Subsidiaries is a “covered foreign person” as that term is used in the Outbound Investment Rules. Neither the Company
nor any of its Subsidiaries currently engages, or has any present intention to engage in the future, directly or indirectly, in (a) a
“covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules,
(b) any activity or transaction that would constitute a “covered activity” or a “covered transaction”, as
each such term is defined in the Outbound Investment Rules, if the Company or such Subsidiary were a U.S. Person (Outbound Investments),
or (c) any other activity that would cause the Administrative Agent or any Lender to be in violation of the Outbound Investment Rules or
cause the Administrative Agent or any Lender to be legally prohibited by the Outbound Investment Rules from performing under this
Agreement or any other Loan Document.
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ARTICLE VI.
AFFIRMATIVE COVENANTS
Each Loan Party hereby covenants
and agrees that such Loan Party shall, and shall cause each of its Restricted Subsidiaries (and, with respect to Section 6.16,
its Unrestricted Subsidiaries) to:
6.01 Financial
Statements. Deliver to the Administrative Agent (who will make such documents available to each Lender), in form and detail reasonably
satisfactory to the Administrative Agent and the Required Lenders:
(a) as
soon as available, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company a consolidated
balance sheet of the Company and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations,
comprehensive income, changes in shareholders’ equity, and cash flows for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year (it being understood and agreed that, for the first audited financial statements delivered
after the Accounting Change Date, such financial statements shall be in comparative form against GAAP Adjusted Financial Statements for
the fiscal year ended immediately preceding the fiscal year covered by such audited financial statements delivered after the Accounting
Change Date), all in reasonable detail and prepared in accordance with the Applicable Accounting Standard, audited and accompanied by
a report and opinion of KPMG LLP or another independent certified public accountant of nationally recognized standing reasonably acceptable
to the Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall
not be subject to any “going concern” or like qualification or exception (other than any qualification or exception in the
last year of this Agreement and due solely to the impending maturity of the Loans and Commitments hereunder) or any qualification or
exception as to the scope of such audit; and
(b) as
soon as available, but in any event within sixty (60) days after the end of each of the first three (3) fiscal quarters of each fiscal
year of the Company, a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal quarter, the related
consolidated statements of operations, comprehensive income, shareholders’ equity and cash flows for such fiscal quarter and for
the portion of the Company’s fiscal year then ended, in each case setting forth in comparative form the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year (it being understood and agreed that,
for the quarterly financial statements delivered for the fiscal quarters ending March 31, June 30 and September 30 occurring
in the fiscal year in which the Accounting Change Date shall have occurred, such financial statements shall be in comparative form against
GAAP Adjusted Financial Statements for such fiscal quarters ending March 31, June 30 and September 30 in the fiscal year
occurring immediately prior to the Accounting Change Date, as applicable), all in reasonable detail, certified by a Responsible Officer
of the Company as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Company
and its Restricted Subsidiaries in accordance with the Applicable Accounting Standard, subject only to normal year-end audit adjustments
and the absence of footnotes.
As to any information
contained in materials furnished pursuant to Section 6.02(c), the Company shall not be separately required to furnish such
information under subsection (a) or (b) above, but the foregoing shall not be in derogation of the obligation
of the Company to furnish the information and materials described in subsections (a) and (b) above at the times
specified therein.
6.02 Certificates;
Other Information. Deliver to the Administrative Agent (who will make such documents available to each Lender), in form and detail
reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently
with the delivery of the financial statements referred to in Sections 6.01(a) and (b), (i) a duly completed Compliance
Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Company (which delivery may,
unless the Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email and shall
be deemed to be an original authentic counterpart thereof for all purposes) and (ii) a report signed by a Responsible Officer of
the Company that supplements Schedule 5.13 such that, as supplemented, such Schedule would be accurate and complete in all material
respects as of the last day of the period covered by the Compliance Certificate described in the foregoing clause (i) (provided
that if no supplement is required to cause such Schedule to be accurate and complete in all material respects as of such date, then the
Company shall not be required to deliver such a report);
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(b) concurrently
with the delivery of the financial statements referred to in Sections 6.01(a) and (b), for any period in which there
exist any Unrestricted Subsidiaries, unaudited consolidating financial statements reflecting adjustments necessary to eliminate the accounts
of Unrestricted Subsidiaries (if any) from such financial statements delivered pursuant to Section 6.01(a) or (b),
as applicable, all in reasonable detail and certified by a Responsible Officer of the Company as fairly presenting in all material respects
the financial condition, results of operations, comprehensive income, shareholders’ equity and cash flows of the Company and its
Restricted Subsidiaries in accordance with the Applicable Accounting Standard, subject only to normal year-end audit adjustments and the
absence of footnotes;
(c) promptly
after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the
stockholders of the Company, and copies of all annual, regular, periodic and special reports and registration statements which the Company
may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, or under any
other applicable securities Laws, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly
following any request therefor, provide information and documentation reasonably requested by the Administrative Agent or any Lender for
purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including,
without limitation, the PATRIOT Act, the Beneficial Ownership Regulation and the Canadian AML Acts;
(e) (i) prior
to, or contemporaneously with, delivery of financial statements pursuant to Section 6.01(a) for the fiscal year of the
Company immediately preceding the fiscal year of the Company in which the Accounting Change Date occurs, deliver to the Administrative
Agent the GAAP Adjusted Annual Financial Statements and (ii) prior to, or contemporaneously with, delivery of financial statements
pursuant to Section 6.01(b) for each fiscal quarter of the Company during the fiscal year in which the Accounting Change
Date occurs, deliver to the Administrative Agent GAAP Adjusted Interim Financial Statements for the applicable corresponding fiscal quarter
of the fiscal year of the Company immediately preceding the Accounting Change Date; and
(f) promptly,
such additional information regarding the business, financial or corporate affairs of the Company or any Subsidiary, or compliance with
the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request.
Documents required
to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to the extent any
such documents are included in materials otherwise filed with the SEC or any national securities exchange) may be delivered electronically
and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides
a link thereto on the Company’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on
which such documents (A) are available on the website of the SEC at http://www.sec.gov, (B) are available on the website of
the Canadian Securities Administrators at https://www.sedar.com or (C) are posted on the Company’s behalf on another
Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided that, in the case of documents that are not available on http://www.sec.gov
or https://www.sedar.com, (x) the Company shall deliver paper copies (which may include .pdf files) of such documents to
the Administrative Agent or any Lender upon its request to the Company to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and (y) the Company shall notify (which may be by facsimile
or electronic mail) the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents. The Administrative
Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Company with any such request by a Lender for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
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The Company hereby
acknowledges that (a) the Administrative Agent and/or each Arranger may, but shall not be obligated to, make available to the Lenders
and any L/C Issuer materials and/or information provided by or on behalf of the Company hereunder (collectively, “Borrower Materials”)
by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “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 Company 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 Company 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 Company shall be deemed to have authorized the Administrative Agent, the Arranger,
the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to
the Company or its securities for purposes of Canadian federal and provincial securities laws and 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 Arrangers 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.” Notwithstanding the foregoing, the Company shall not be under any obligation
to mark any Borrower Materials “PUBLIC.”
6.03 Notices.
Promptly notify the Administrative Agent (who will make such notice available to each Lender):
(a) of
the occurrence of any Default;
(b) of
any matter that has resulted or would reasonably be expected to result in a Material Adverse Effect;
(c) of
the occurrence of any ERISA Event or any material failure by any Loan Party or any Subsidiary to perform its obligations under a Canadian
Pension Plan;
(d) of
the acquisition, as a result of the consummation of a Permitted Acquisition, of any Canadian Defined Benefit Pension Plan and copies of
all documentation relating thereto and, thereafter, promptly after any request by the Administrative Agent or any Lender, copies of all
actuarial valuation reports in respect thereof;
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(e) of
any material change in accounting policies or financial reporting practices by the Company or any Subsidiary;
(f) the
entering into by the Company or any Subsidiary of any Permitted Securitization Transaction (together with such information regarding such
Permitted Securitization Transaction as the Administrative Agent or any Lender may reasonably request);
(g) of
the Accounting Change Date; and
(h) of
any announcement by S&P, Moody’s or Fitch of the establishment of, or any change in, a Corporate Rating.
Each notice pursuant to this
Section 6.03 (other than Section 6.03(h)) shall be accompanied by a statement of a Responsible Officer of the
Company setting forth details of the occurrence referred to therein and stating what action the Company has taken and proposes to take
with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions
of this Agreement and any other Loan Document that have been breached.
6.04 Payment
of Obligations. Pay and discharge as the same shall become due and payable, all its material obligations and liabilities, including
(a) all Tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are
being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with the Applicable
Accounting Standard are being maintained by the Company or such Restricted Subsidiary or in respect of which such failure to pay would
not reasonably be likely to have a Material Adverse Effect; and (b) all lawful claims which, if unpaid, would by law become a Lien
upon its property (other than Permitted Liens).
6.05 Preservation
of Existence, Etc.
(a) Preserve,
renew and maintain in full force and effect its legal existence and good standing (to the extent applicable) under the Laws of the jurisdiction
of its organization except in a transaction permitted by Sections 7.04 or 7.05;
(b) take
all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect; and
(c) preserve
or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which would reasonably be expected
to have a Material Adverse Effect.
6.06 Maintenance
of Properties.
(a) Maintain,
preserve and protect all of its material properties and equipment necessary in the normal operation of its business in good working order
and condition, ordinary wear and tear and damage by casualty or condemnation excepted; and
(b) make
all necessary repairs thereto and renewals and replacements thereof, except to the extent that (i) any of such properties or equipment
are obsolete or are being replaced in the ordinary course of business, (ii) the Company or any of its Restricted Subsidiaries reasonably
determine that the continued maintenance, repaid, renewal or replacement of any of its properties or equipment is no longer commercially
practicable and is not in the best interests of the Company or any of its Restricted Subsidiaries, or (iii) where the failure to
do so would not reasonably be expected to have a Material Adverse Effect.
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6.07 Maintenance
and Evidence of Insurance.
(a) Maintenance
of Insurance. Maintain with financially sound and reputable insurance companies not Affiliates of the Company or any Subsidiary, insurance with respect to its properties and business against loss
or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts
as are customarily carried under similar circumstances by such other Persons, including, without limitation, liability, casualty, property,
terrorism and business interruption insurance.
(b) Evidence
of Insurance. (i) Prior to the Collateral Release Date, cause the Administrative Agent to be named as lenders’ loss payable or loss payee (other than with respect to business interruption insurance)
and as mortgagee, as its interest may appear, and/or additional insured with respect of any such insurance providing liability coverage
or coverage in respect of any Collateral, and (ii) cause, unless otherwise agreed to by the Administrative Agent and, to the extent
available and customarily agreed to by the relevant insurance provider, each provider of any such insurance to agree, by endorsement
upon the policy or policies issued by it or by independent instruments furnished to the Administrative Agent that it will give the Administrative
Agent thirty (30) days’ prior written notice before any such policy or policies shall be altered or cancelled (or ten (10) days’
prior notice in the case of cancellation due to the nonpayment of premiums or, with respect to insurance premiums issued by non-U.S.
insurance companies, to the extent available, as substantially similar notice as is practicable). Annually, upon expiration of current
insurance coverage, the Loan Parties shall provide, or cause to be provided, to the Administrative Agent, such evidence of insurance
as required by the Administrative Agent, including, but not limited to: (i) evidence of such insurance policies, (ii) declaration
pages for each insurance policy and (iii) prior to the Collateral Release Date and to the extent available from the relevant
insurance provider, lender’s loss payable endorsement (or other evidence that the Administrative Agent has substantially the same
or similar standing under any insurance policies issued by non-U.S. insurance companies) if the Administrative Agent for the benefit
of the Secured Parties (or in its own name as creditor of Parallel Debt, as applicable) is not on the declarations page for such
policy. As requested by the Administrative Agent, the Loan Parties agree to deliver to the Administrative Agent an Authorization to Share
Insurance Information.
6.08 Compliance
with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which
(a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently
conducted; or (b) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect.
6.09 Books
and Records. (a) Maintain proper books of record and account, in which full, materially true and correct entries in conformity with the Applicable Accounting Standard as in effect on such date consistently applied
shall be made of all material financial transactions and matters involving the assets and business of the Company or such Restricted Subsidiary,
as the case may be, and (b) maintain such books of record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over the Company or such Restricted Subsidiary, as the case may be.
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6.10 Inspection
Rights. Upon the request of the Administrative Agent on behalf of any Lender, permit representatives and independent contractors of
the Administrative Agent (which may include representatives of Lenders) to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with
its directors, officers, and independent public accountants (provided, that one or more representatives of the Company shall be
invited (with reasonable advance notice) to attend any such meetings with such independent public accountants (provided that the
failure of any such representatives of the Company to attend any such meeting shall not preclude such meeting from occurring)), all at
the expense of the Lenders when no Event of Default exists, and at such reasonable times during normal business hours, upon reasonable
advance notice to the Company and no more than once per year; provided, however, that when an Event of Default exists, the
Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing
at the expense of the Company at any time during normal business hours and without advance notice; provided, further that
notwithstanding anything to the contrary herein, neither the Company nor any of its Restricted Subsidiaries shall be required to disclose,
permit the inspection, examination or making of copies of or taking abstracts from, or discuss any document, information, or other matter
(a) that constitutes non-financial trade secrets or non-financial proprietary information of the Company and its Restricted Subsidiaries
and/or any of its customers and/or suppliers, (b) in respect of which disclosure to the Administrative Agent or any Lender (or any
of their respective representatives or agents) is prohibited by applicable Law, (c) that is subject to attorney-client or similar
privilege or constitutes attorney work product or (d) in respect of which the Company or any Subsidiary owes confidentiality obligations
to any third party (it being understood that the Company or any of its Subsidiaries shall inform the Administrative Agent of the existence
and nature of the confidential records, documents or other information not being provided and, following a reasonable request from the
Administrative Agent, use commercially reasonable efforts to request consent from an applicable contractual counterparty to disclose such
information (but shall not be required to incur any cost or expense or pay any consideration of any type to such party in order to obtain
such consent)).
6.11 Use
of Proceeds. Use the proceeds of the Credit Extensions to refinance Indebtedness outstanding as of the Second Amendment Effective
Date (including Indebtedness outstanding under this Agreement), to pay professional fees and other expenses associated therewith and for
general corporate purposes of the Company and its Subsidiaries (including for capital expenditures, Permitted Acquisitions, working capital
needs, the payment of transaction fees and expenses, Investments, Restricted Payments and any other purpose not prohibited by the
terms of the Loan Documents) not in contravention of any Law or of any Loan Document.
6.12 Compliance
with Environmental Laws. Comply, in all material respects, with all applicable Environmental Laws and Environmental Permits and obtain
and renew all Environmental Permits necessary for its operations and properties; provided, however, that neither the Company
nor any of its Restricted Subsidiaries shall be required to undertake any action under any Environmental Laws and Environmental Permits
to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances in accordance with the Applicable Accounting Standard as in effect on such date.
6.13 Maintenance
of Ratings. Use commercially reasonable efforts (it being understood and agreed that “commercially reasonable efforts”
shall in any event include the payment by the Company of customary rating agency fees and cooperation with information and data requests
by Moody’s and S&P in connection with their ratings process) to obtain and maintain (a) a public corporate family rating
of the Company and a rating of the credit facilities provided under this Agreement, in each case from Moody’s, (b) a public
corporate credit rating of the Company and a rating of the credit facilities provided under this Agreement, in each case from S&P
and (c) a current, non-credit-enhanced, senior secured long-term debt rating with respect to the Term B Loan from each of S&P
and Moody’s; provided, that in no event shall the Company be required to maintain a specific rating with any such agency.
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6.14 Covenant
to Guarantee Obligations.
(a) Within
forty-five (45) days (or such later date as the Administrative Agent may agree in its sole discretion) after (x) the acquisition
or formation of any Restricted Subsidiary (other than an Excluded Subsidiary) or (y) the date on which any Excluded Subsidiary ceases
to be an Excluded Subsidiary, cause such Restricted Subsidiary to (i) become a U.S. Guarantor (if such Subsidiary is a U.S. Subsidiary
and not a CFC Holdco) or a Non-U.S. Guarantor (if such Subsidiary is a Non-U.S. Subsidiary or a CFC Holdco), as applicable, by executing
and delivering to the Administrative Agent a Joinder Agreement or such other documents as the Administrative Agent shall deem appropriate
for such purpose and (ii) upon the request of the Administrative Agent in its reasonable discretion, deliver to the Administrative
Agent such Organization Documents, resolutions (which with respect to any corporation incorporated in Spain, shall be raised to the status
of a Spanish Public Document) and favorable opinions of counsel, all in form, content and scope reasonably satisfactory to the Administrative
Agent; provided that notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, no Specified
Subsidiary shall be required to provide a Guarantee in respect of any of the Obligations other than the Non-U.S. Obligations.
(b) If
any Subsidiary (including, to the extent permitted by applicable Law, any Excluded Subsidiary other than any Special Purpose Subsidiary
or any other Subsidiary with respect to which the Administrative Agent and the Company reasonably agree that the burden or cost of such
Person providing the Guaranty shall outweigh the benefits to be obtained by the Lenders therefrom) that is not a Guarantor provides a
Guarantee in respect of any Additional Indebtedness issued by a Loan Party, cause such Subsidiary to, concurrently with providing such
Guarantee in respect of such Additional Indebtedness (or at such later date that the Administrative Agent may agree in its sole discretion),
(i) become a U.S. Guarantor (if such Subsidiary is a U.S. Subsidiary and not a CFC Holdco) or a Non-U.S. Guarantor (if such Subsidiary
is a Non-U.S. Subsidiary or a CFC Holdco), as applicable, by executing and delivering to the Administrative Agent a Joinder Agreement
or such other documents as the Administrative Agent shall deem reasonably appropriate for such purpose and (ii) upon the request
of the Administrative Agent in its reasonable discretion, deliver to the Administrative Agent such Organization Documents, resolutions
(which with respect to any corporation incorporated in Spain, shall be raised to the status of a Spanish Public Document) and favorable
opinions of counsel, all in form, content and scope reasonably satisfactory to the Administrative Agent; provided that notwithstanding
anything to the contrary contained in this Agreement or any other Loan Document, no Specified Subsidiary shall be required to provide
a Guarantee in respect of any of the Obligations other than the Non-U.S. Obligations.
Notwithstanding anything to the contrary
contained herein, (x) the Company may from time to time, upon notice to the Administrative Agent, elect to cause any Subsidiary that
would otherwise be an Excluded Subsidiary to become a U.S. Guarantor (if such Subsidiary is a U.S. Subsidiary and not a CFC Holdco)
or a Non-U.S. Guarantor (if such Subsidiary is a Non-U.S. Subsidiary or a CFC Holdco), as applicable; provided that the requirements
set forth in the foregoing clause (a) applicable to any Subsidiary that is required to provide the Guaranty pursuant to such
clause are satisfied and (y) the Subsidiaries set forth on Part A of Schedule 6.19 shall not be required to comply with
this Section 6.14 until the Post-Closing Compliance Date.
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6.15 Covenant
to Give Security. Prior to the Collateral Release Date and except with respect to Excluded Property:
(a) Cause
each U.S. Obligor that is not a Specified U.S. Obligor (in each case, whether now or hereafter existing) to grant or cause to be granted
a first priority perfected (or similar concept under any applicable non-U.S. Laws) security interest (subject to Permitted Liens) in the
following (to the extent not constituting Excluded Property), in each case to secure the Obligations pursuant to the Domestic U.S. Security
Agreement, in each case on the Closing Date or, if acquired thereafter, within forty-five (45) days (or such later date as the Administrative
Agent may agree in its sole discretion) of the acquisition thereof:
(i) (A) one
hundred percent (100%) of the issued and outstanding Equity Interests of any Restricted Subsidiary that is a U.S. Subsidiary and not a
CFC Holdco directly owned by such U.S. Obligor; (B) sixty-five percent (65%) of the issued and outstanding Equity Interests entitled
to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of any Restricted Subsidiary that is (x) a CFC directly owned
by such U.S. Obligor or (y) a CFC Holdco directly owned by such U.S. Obligor; and (C) one hundred percent (100%) of the issued
and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of any Restricted
Subsidiary that is (x) a CFC directly owned by such U.S. Obligor or (y) a CFC Holdco directly owned by such U.S. Obligor; and
(ii) all
personal property of such U.S. Obligor;
(b) Cause
each Non-U.S. Obligor that is not a Specified Non-U.S. Obligor (in each case, whether now or hereafter existing) to grant or cause to
be granted a first priority perfected (or similar concept under any applicable non-U.S. Laws) security interest (subject to Permitted
Liens) in the following (to the extent not constituting Excluded Property), in each case to secure the Obligations pursuant to the Canadian
Security Agreement or, upon the request of the Administrative Agent, another Security Agreement, in each case on the Closing Date or,
if acquired thereafter, within forty-five (45) days (or such later date as the Administrative Agent may agree in its sole discretion)
of the acquisition thereof:
(i) (A) except
to the extent the following clause (B) applies, one hundred percent (100%) of the issued and outstanding Equity Interests
of any Restricted Subsidiary directly owned by such Non-U.S. Obligor; (B) sixty-five percent (65%) of the issued and outstanding
Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of any Restricted Subsidiary that is
a CFC Holdco directly owned by such Non-U.S. Obligor; and (C) one hundred percent (100%) of the issued and outstanding Equity Interests
not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of any Restricted Subsidiary that is a CFC Holdco
directly owned by such Non-U.S. Obligor; provided that the foregoing clauses (B) and (C) shall not apply
with respect to any security interest granted to secure the Non-U.S Obligations; and
(ii) all
personal property of such Non-U.S. Obligor;
(c) Cause
each Specified U.S. Obligor (whether now or hereafter existing) to grant a first priority perfected security interest (subject to Permitted
Liens) in the following (to the extent not constituting Excluded Property), in each case to secure the Non-U.S. Obligations pursuant
to the Specified U.S. Security Agreement or, upon the request of the Administrative Agent, another pledge and/or security agreement in
favor of the Administrative Agent, for the benefit of the Secured Parties (or in its own name as creditor of Parallel Debt, as applicable),
in form and substance reasonably acceptable to the Administrative Agent, in each case on the Closing Date or, if acquired thereafter,
within thirty (30) days (or such later date as the Administrative Agent may agree in its sole discretion exercised reasonably) of the
acquisition thereof:
(i) one
hundred percent (100%) of the issued and outstanding Equity Interests of any Restricted Subsidiary directly owned by such Specified U.S.
Obligor; and
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(ii) all
personal property of such Specified U.S. Obligor;
(d) Cause
each Specified Non-U.S. Obligor (whether now or hereafter existing) to grant a first priority perfected security interest (subject to
Permitted Liens) in the following (to the extent not constituting Excluded Property), in each case to secure the Non-U.S. Obligations
pursuant to the Canadian Security Agreement or, upon the request of the Administrative Agent, another pledge and/or security agreement
in favor of the Administrative Agent, for the benefit of the Secured Parties (or in its own name as creditor of Parallel Debt, as applicable),
in form and substance reasonably acceptable to the Administrative Agent, in each case on the Closing Date or, if acquired thereafter,
within thirty (30) days (or such later date as the Administrative Agent may agree in its sole discretion, exercised reasonably) of the
acquisition thereof:
(i) one
hundred percent (100%) of the issued and outstanding Equity Interests of any Restricted Subsidiary directly owned by such Specified Non-U.S.
Obligor; and
(ii) all
personal property of such Specified Non-U.S. Obligor;
(e) At
any time upon reasonable request of the Administrative Agent (but, for the avoidance of doubt, subject to any applicable time periods
set forth in Section 6.14 and this Section 6.15), promptly execute and deliver any and all further instruments
and documents and take all such other action (including promptly completing any registration or stamping of documents as may be applicable)
as the Administrative Agent reasonably may deem necessary or desirable to maintain in favor of the Administrative Agent, for the benefit
of the Secured Parties (or in its own name as creditor of Parallel Debt, as applicable), Liens and insurance rights on the Collateral
that are duly perfected in accordance with the requirements of, or the obligations of the Loan Parties under, the Loan Documents and all
applicable Laws.
Notwithstanding
anything to the contrary contained herein, the Subsidiaries set forth on Part A of Schedule 6.19 shall not be required to
comply with this Section 6.15 until the Post-Closing Compliance Date.
6.16 Anti-Corruption
Laws; Sanctions. Conduct its business in material compliance with the United States Foreign Corrupt Practices Act of 1977, the Corruption
of Foreign Public Officials Act (Canada), the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions
applicable to the Company and its Subsidiaries and with all applicable Sanctions, and maintain policies and procedures designed to promote
and achieve compliance with such laws and Sanctions; provided that no Non-U.S. Subsidiary shall be required to comply with anti-corruption
legislation of any jurisdiction other than the Laws applicable in its jurisdiction of organization if such compliance would cause such
Person to violate the laws of its jurisdiction of organization.
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6.17 Further
Assurances. Promptly upon request by the Administrative Agent, or any Lender through the Administrative Agent, (a) correct any
material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof,
and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts,
deeds, certificates, assurances and other instruments (including promptly completing any registration or stamping of documents as may
be applicable) as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time
in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) prior to the Collateral Release Date, to
the fullest extent permitted by applicable Law, subject any Loan Party’s or any of its Subsidiaries’ properties, assets,
rights or interests (other than, in each case, Excluded Property) to the Liens now or hereafter intended to be covered by any of the
Collateral Documents, (iii) prior to the Collateral Release Date, perfect and maintain the validity, effectiveness and priority
of any of the Collateral Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign,
transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to
be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document
to which any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so.
6.18 Pari
Passu Ranking. Ensure that the payment obligations of the Loan Parties under the Loan Documents rank and continue to rank at least
pari passu with the claims of all of the Loan Parties’ other unsecured and unsubordinated creditors, except for obligations
mandatorily preferred by law applying to companies generally.
6.19 Post-Closing
Obligations.
(a) By
no later than the date that is thirty (30) days after the Closing Date (or such later date as the Administrative Agent may agree in its
sole discretion) (the “Post-Closing Compliance Date”), cause the Subsidiaries set forth on Part A of Schedule
6.19 to comply with the requirements of Sections 6.14 and 6.15.
(b) Undertake
all actions listed on Part B of Schedule 6.19, in each case as promptly as practicable and in any event within the time periods
set forth on such Schedule (or such longer periods of time as may be agreed to by the Administrative Agent in its sole discretion).
6.20 Designation
of Subsidiaries.
(a) The
Company may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted
Subsidiary; provided that (i) no Default or Event of Default shall exist immediately prior or immediately after giving effect
to such designation; (ii) the Company shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating
that after giving effect to such designation on a Pro Forma Basis, the Loan Parties would be in Pro Forma Compliance; (iii) no Restricted
Subsidiary may be designated as an Unrestricted Subsidiary if such Restricted Subsidiary or any of its Subsidiaries (A) owns any
Equity Interests or Indebtedness of, or owns or holds any Liens on, any property of the Company or any Restricted Subsidiary (or otherwise
has any obligation that is secured, directly or indirectly, by a Lien on any asset of the Company or any Restricted Subsidiary), (B) Guarantees
or holds any Indebtedness owing by the Company or any Restricted Subsidiary, or incurs any Indebtedness provided by the Company or any
Restricted Subsidiary, (C) owns or has an exclusive license on any IP Rights that are material to the Company and its Restricted
Subsidiaries or (D) has the benefit, directly or indirectly, of any credit support (including any Guarantee) provided by the Company
or any Restricted Subsidiary; (iv) any Unrestricted Subsidiary that has been designated as a Restricted Subsidiary may not subsequently
be re-designated as an Unrestricted Subsidiary; (v) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if
such Person were a Restricted Subsidiary on the Second Amendment Effective Date; and (vi) no Restricted Subsidiary may be designated
as an Unrestricted Subsidiary unless concurrent with such designation such Restricted Subsidiary is designated as an “unrestricted
subsidiary” (or otherwise not be subject to the covenants) under any Additional Indebtedness.
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(b) The
designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Company in such Subsidiary
on the date of such designation in an amount equal to the outstanding amount of all Investments by the Company and its Restricted Subsidiaries
in such Subsidiary on such date. Accordingly, such designation shall be permitted only if the Investment represented thereby would be
permitted under Section 7.02.
(c) The
designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence on the date of such designation
of any Investment, Indebtedness or Liens of such Subsidiary existing on such date and (ii) for purposes of calculating the outstanding
amount of Investments by the Company and its Restricted Subsidiaries in all Unrestricted Subsidiaries, a return on all Investments by
the Company and its Restricted Subsidiaries in such Subsidiary in an amount equal to the outstanding amount of all such Investments in
such Subsidiary on the date of such designation.
(d) If
at any time any Unrestricted Subsidiary (i) owns any Equity Interests or Indebtedness of, or owns or holds any Liens on, any property
of the Company or any Restricted Subsidiary (or otherwise has any obligation that is secured, directly or indirectly, by a Lien on any
asset of the Company or any Restricted Subsidiary), (ii) Guarantees or holds any Indebtedness owing by the Company or any Restricted
Subsidiary, or incurs any Indebtedness provided by the Company or any Restricted Subsidiary, (iii) owns or has an exclusive license
on any IP Rights that are material to the Company and its Restricted Subsidiaries, (iv) has the benefit, directly or indirectly,
of any credit support (including any Guarantee) provided by the Company or any Restricted Subsidiary or (v) ceases to be an “unrestricted
subsidiary” (or otherwise becomes subject to the covenants) under any Additional Indebtedness, then the Company shall, concurrently
therewith, re-designate such Unrestricted Subsidiary as a Restricted Subsidiary (or, in the case of clause (iii), transfer such
IP Rights to the Company or a Restricted Subsidiary).
6.21 Financial
Assistance. Cause each Irish Loan Party to comply in all respects with Section 82 of the Irish Companies Act in relation to the
execution of the Loan Documents to which that Irish Loan Party is a party and the performance by that Irish Loan Party of its obligations
thereunder.
6.22 Investment
Grade Collateral Release.
(a) Collateral
Release. Notwithstanding anything to the contrary set forth herein, effective on the first date after the Second Amendment Effective
Date on which all of the Collateral Release Conditions have been satisfied (such date, the “Collateral Release Date”),
(i) all Liens of the Administrative Agent (for the benefit of itself and the Secured Parties) on the Collateral (other than, for
the avoidance of doubt, on Cash Collateral pursuant to Section 2.17) created by each Security Agreement and any other Collateral
Document shall be terminated and released and (ii) each Security Agreement and each other Collateral Document shall be terminated,
in each case, automatically and without the need for any further action, and all rights to the Collateral shall revert to the Loan Parties
(the “Collateral Release”). At the request and sole expense of the Company following any such Collateral Release,
the Administrative Agent shall promptly (1) execute and deliver to the Company (or such Person as the Company may designate) any
and all release or termination documents and take such other action, in each case, as the Company may reasonably request to evidence
the foregoing termination and release of such Liens of the Administrative Agent on behalf of itself and the Secured Parties and termination
of the Collateral Documents and (2) prepare and file UCC and PPSA termination statements (or similar documents required under any
other applicable Law for each appropriate jurisdiction as necessary) and intellectual property notice releases in the United States and
Canada terminating such Liens.
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(b) Conditions
Precedent to Collateral Release. The Collateral Release shall be effective upon the satisfaction of each of the following conditions (collectively, the “Collateral Release Conditions”):
(i) Investment
Grade Ratings. The Administrative Agent shall have received evidence provided by the Company confirming that the Company has obtained at least two (2) of the following three (3) Corporate
Ratings: (a) a public corporate family rating of the Company of Baa3 or higher from Moody’s, (b) a public corporate credit
rating of the Company of BBB- or higher from S&P and/or (c) a public corporate credit rating of the Company of BBB- or higher
from Fitch.
(ii) Repayment
in Full of Term B Loan and all Incremental Tranche B Term Loans. The Company shall have, or shall have caused, the repayment in full of all outstanding principal of, accrued interest on, and
prepayment premiums and all other amounts in respect of the Term B Loan and any Incremental Tranche B Term Loan outstanding at such time.
(iii) Officer’s
Certificate. The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Company certifying that, as of the Release Date after giving effect to this Section 6.22,
no Default or Event of Default exists under this Agreement.
ARTICLE VII.
NEGATIVE COVENANTS
Each Loan Party hereby covenants
that no Loan Party shall, nor shall it permit any of its Restricted Subsidiaries (and, with respect to Section 7.16, Section 7.17
and Section 7.18, its Unrestricted Subsidiaries) to, directly or indirectly:
7.01 Liens.
Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:
(a) Liens
pursuant to any Loan Document;
(b) Liens
existing on the Second Amendment Effective Date and listed on Schedule 7.01 and any renewals or extensions thereof; provided
that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except
as contemplated by Section 7.03(b), (iii) the direct or any contingent obligor with respect thereto is not changed,
and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b);
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(c) Liens
for Taxes that are (i) not yet due or (ii) being contested in good faith and by appropriate proceedings diligently conducted
and for which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with the Applicable
Accounting Standard as in effect on such date;
(d) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business
(i) which are not overdue for a period of more than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable
Person;
(e) Liens
incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA or in respect of a Canadian Pension Plan;
(f) deposits
and other Liens to secure the performance of bids, trade contracts and leases (other than Indebtedness), tenders, statutory obligations,
surety bonds (other than bonds related to judgments or litigation), leases, performance bonds, government contracts and other obligations
of a like nature incurred in the ordinary course of business;
(g) easements,
rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person;
(h) Liens
securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of
Default under Section 8.01(h);
(i) Liens
securing Indebtedness permitted under Section 7.03(e); provided that (i) such Liens do not at any time encumber
any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the
cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(j) licenses
(including licenses of intellectual property), sublicenses, leases or subleases granted to third parties in the ordinary course of business
not interfering with the business of the Company or any Restricted Subsidiary in any material respect;
(k) Liens
in favor of customs and revenue authorities arising as a matter of law which secure payment of customs duties in connection with the importation
of goods;
(l) any
interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements
in foreign jurisdictions) relating to, leases permitted by this Agreement;
(m) normal
and customary rights of setoff or bankers’ liens upon deposits of cash in favor of banks or other depository institutions;
(n) Liens
securing Acquired Indebtedness; provided that (i) such Liens do not at any time encumber any property other than the property
financed by such Indebtedness and (ii) such Liens existed prior to the applicable Permitted Acquisition and were not incurred in
connection with, or in anticipation or contemplation of, the applicable Permitted Acquisition;
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(o) Liens
securing Junior Secured Indebtedness and Pari Passu Indebtedness, in each case, to the extent such Indebtedness is permitted under Section 7.03(h);
(p) Liens
on Securitized Assets created or deemed to exist in connection with (i) any Permitted Securitization Transaction or (ii) the
Specified Receivables Purchase Agreement;
(q) Liens
pursuant to any Loan Document securing (x) Secured Cash Management Agreements and (y) Secured Swap Contracts;
(r) purported
Liens evidenced by the filing of UCC financing statements in respect of consignment of goods;
(s) with
respect to any real property occupied, owned or leased by any Borrower or any of their Subsidiaries, leases, subleases, tenancies, options,
concession agreements, rental agreements occupancy agreements, franchise agreements, access agreements and any other agreements, whether
or not of record and whether now in existence or hereafter entered into, of the real properties of any Loan Party or any Restricted Subsidiary
granted by such Person to third parties, in each case entered into in the ordinary course of such Person’s business and so long
as, to the extent such real properties are subject to Liens, such Liens do not materially interfere with the ordinary conduct of business
of the Loan Parties or their Restricted Subsidiaries, taken as a whole, and do not materially impair the use of such property for its
intended purposes;
(t) Liens
arising by operation of law under Article 4 of the Uniform Commercial Code in connection with collection of items provided for therein
or under Article 2 of the Uniform Commercial Code in favor of a reclaiming seller of goods or buyer of goods;
(u) Liens
attaching solely to (i) cash earnest money deposits in connection with any letter of intent or purchase agreement and (ii) proceeds
of an asset disposition permitted hereunder that are held in escrow to secure obligations under the sale documentation relating to such
disposition;
(v) any
laws, regulations or ordinances now or hereafter in effect (including, but not limited to, zoning, building and environmental protection)
as to the use, occupancy, subdivision or improvement of real property occupied, owned or leased by the Company or any of its Restricted
Subsidiaries adopted or imposed by any Governmental Authority;
(w) Liens
of landlords under leases where the Company or any of its Restricted Subsidiaries is the tenant, securing performance by the tenant under
the lease arising by statute or under any lease or related contractual obligation entered into in the ordinary course of business;
(x) (i) Liens
that are customary contractual rights of setoff or netting relating to (A) the establishment of depositary relations with banks
not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of the Company or any Restricted
Subsidiary to permit satisfaction of overdraft or similar obligations or to secure negative cash balances in local accounts of foreign
Restricted Subsidiaries incurred in the ordinary course of business of the Company or any Restricted Subsidiary, (C) purchase orders
and other agreements entered into with customers of the Company or any Restricted Subsidiary in the ordinary course of business and (D) commodity
trading or other brokerage accounts incurred in the ordinary course of business, (ii) Liens encumbering reasonable customary initial
deposits and margin deposits and (iii) Liens on the proceeds of any Indebtedness incurred in connection with any transaction permitted
hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application
of proceeds to finance such transaction;
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(y) Liens
securing insurance premium financing arrangements; provided, that such Liens only encumber the insurance premiums, policies or
dividends with respect to the policies that were financed with the funds advanced under such arrangements;
(z) Liens
on cash or cash equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness;
(aa) Liens
arising out of conditional sale, title retention, consignment, bailment or similar arrangements for the purchase, sale or shipment of
goods entered into in the ordinary course of business;
(bb) Liens
(i) on cash advances or escrow deposits in favor of the seller of any property to be acquired by the Company or any Restricted Subsidiary
to be applied against the purchase price therefor or otherwise in connection with any escrow arrangements with respect thereto or any
disposition permitted under Section 7.05 and (ii) consisting of an agreement to dispose of any property in a disposition
permitted under Section 7.05 solely to the extent such disposition, as the case may be, would have been permitted on the date
of the creation of such Lien;
(cc) Liens
on securities which are the subject of repurchase agreements referred to in the definition of “Cash Equivalents” granted under
such repurchase agreements in favor of the counterparties thereto;
(dd) undetermined
or inchoate Liens and charges arising or potentially arising under statutory provisions incidental to current operations which have not
at the time been filed or registered in accordance with applicable Law or of which written notice has not been duly given in accordance
with applicable Law, or which although filed or registered, relate to obligations not due or delinquent;
(ee) Liens
on (i) inventory sold pursuant to a Permitted Inventory Financing Arrangement and (ii) payments and other proceeds in respect
of inventory sold pursuant to a Permitted Inventory Financing Arrangement; and
(ff) Liens
not otherwise permitted by this Section 7.01 securing obligations in an aggregate principal amount not to exceed at any one
time outstanding the greater of (x) $700,000,000 and (y) 10.0% of Consolidated Total Assets (determined as of the date of incurrence
of such obligations).
Notwithstanding anything to
the contrary in this Section 7.01 or otherwise, on and after the Collateral Release Date, all Liens securing Indebtedness
of the Company or any of its Restricted Subsidiaries (other than Liens securing purchase money obligations permitted under Section 7.01(i))
must secure only Permitted Priority Indebtedness.
7.02 Investments.
Make any Investments, except:
(a) Investments
held by the Company or such Restricted Subsidiary in the form of Cash Equivalents;
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(b) advances
to officers, directors and employees of the Company and Subsidiaries in an aggregate amount not to exceed $10,000,000 at any time outstanding,
for travel, entertainment, relocation and analogous ordinary business purposes;
(c) Investments
in the Company or any Loan Party; provided that in the case of any such Investment by a Restricted Subsidiary that is not a Loan
Party in a Loan Party, (i) such Investment shall be subordinated to the Obligations in a manner and to an extent reasonably acceptable
to the Administrative Agent and (ii) such Investment shall not be repaid unless no Event of Default exists;
(d) Investments
of any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary that is not a Loan Party;
(e) Investments
consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in
the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit loss;
(f) Guarantees
permitted by Section 7.03;
(g) Permitted
Acquisitions;
(h) Investments
of any Person in existence at the time such Person becomes a Subsidiary pursuant to a Permitted Acquisition; provided such Investment
was not made in connection with or anticipation of such Person becoming a Subsidiary;
(i) to
the extent constituting Investments, deposit accounts maintained in the ordinary course of business and cash pooling arrangements in the
ordinary course of business;
(j) Investments
of the Company or any Restricted Subsidiary in any Special Purpose Subsidiary in connection with any Permitted Securitization Transaction;
provided that such Investments are customary in Securitization Transactions;
(k) to
the extent constituting Investments, Restricted Payments permitted under Section 7.06;
(l) Investments
existing on, or contractually committed to as of, the Second Amendment Effective Date and described in Schedule 7.02 or consisting
of intercompany Investments between or among the Company and its Subsidiaries outstanding on the Second Amendment Effective Date and any
modification, replacement, renewal or extension thereof so long as such modification, renewal or extension thereof does not increase the
amount of such Investment except, in the case of any such Investment described on Schedule 7.02, by the terms thereof as in effect
on the Second Amendment Effective Date and described on Schedule 7.02 or as otherwise permitted by this Section 7.02;
(m) Swap
Contracts permitted under Section 7.03(d).
(n) Investments
(including debt obligations and Equity Interests) (i) received by the Company or any of its Subsidiaries as a creditor pursuant
to a bankruptcy, insolvency, receivership, administration, winding-up or plan of reorganization under any Debtor Relief Law of any Person
or a composition or readjustment of the debts of such Person, (ii) in settlement of a dispute or delinquent account, (iii) upon
foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment and/or (iv) as
a result of the settlement, compromise, resolution of litigation, arbitration or other disputes;
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(o) Investments
consisting of (i) deposits or prepaid expenses or (ii) endorsements for collection or deposit and customary trade arrangements,
in each case made or incurred in the ordinary course of business;
(p) any
Investment received as non-cash consideration from any Disposition permitted by Section 7.05;
(q) Investments
comprised of notes payable, or Equity Interests issued by account debtors to the Company or any Restricted Subsidiary pursuant to negotiated
agreements with respect to settlement of such account debtor’s account in the ordinary course of business;
(r) Investments
by a Loan Party and/or any Subsidiary that is not a Loan Party in any Restricted Subsidiary which is not a Loan Party consisting of (i) the
contribution or Disposition of the Equity Interests of any Restricted Subsidiary which is not a Loan Party or (ii) any non-cash Investments
arising as a result of any in-kind settlement transaction (including but not limited to loans made or deemed made in the course of settling
the distribution of any Restricted Payment) entered into by and among a Loan Party and/or any Subsidiary that is not a Loan Party, on
the one hand, and any Restricted Subsidiary which is organized or formed under the Laws of the Kingdom of Thailand, on the other hand;
(s) Investments
consisting of Indebtedness to the extent permitted under Section 7.03 (other than clause (g) thereof), Permitted
Liens, transactions to the extent permitted by Section 7.04, and Restricted Payments and Junior Payments to the extent permitted
by Section 7.06;
(t) Investments
in any Subsidiary in connection with reorganizations and activities related to tax planning; provided that after giving effect
to any such reorganization and related activities, (x) prior to the Collateral Release Date, the security interest of the Administrative
Agent in the Collateral, taken as a whole, is not materially impaired and (y) after giving effect to such Investment, the Company
and its Subsidiaries shall otherwise be in compliance with Section 7.02;
(u) Investments
comprised of notes owing to any Loan Party or any wholly owned Subsidiary in connection with the Disposition of the Toronto Property;
(v) Guarantees
by the Company in respect of obligations not constituting Indebtedness which are owed by Restricted Subsidiaries to their respective suppliers,
customers, landlords, franchisees and/or licensees;
(w) Investments
as valued at cost at the time each such Investment is made and including all related commitments for future Investments, in an amount
not exceeding the Available Amount; provided that at the time of any such Investment, no Event of Default shall have occurred and
be continuing or would result therefrom; and
(x) other
Investments in an aggregate amount not to exceed at any time outstanding the sum of (i) the greater of (x) $700,000,000 and
(y) 10.0% of Consolidated Total Assets (determined as of the date of the making of such Investment) plus (ii) an unlimited
amount so long as after giving effect to such Investment on a Pro Forma Basis, the Consolidated Total Net Leverage Ratio (without giving
effect to the cap on cash netting in the definition thereof) shall be less than 3.50:1.00 (for purposes of clarity, the amount of any
Investment made in reliance on the immediately preceding clause (ii) and permitted thereunder at such time shall not be included
in any calculation of the amount available in the immediately preceding clause (i)).
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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, but in each case, net of any return in respect thereof, including dividends, interest, distributions, returns of principal,
profits on sale, repayments, income and similar amounts.
7.03 Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness
under the Loan Documents, Secured Cash Management Agreements and Secured Swap Contracts;
(b) Indebtedness
outstanding on the Second Amendment Effective Date and listed on Schedule 7.03 and any refinancings, refundings, renewals or extensions
thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or
extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred,
in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder;
(c) Guarantees
of the Company or any Loan Party in respect of Indebtedness otherwise permitted hereunder of the Company or any Loan Party; provided
that if such Indebtedness is subordinated to the Obligations, such Guarantee shall be subordinated to the Obligations on terms at least
as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(d) obligations
(contingent or otherwise) of the Company or any Loan Party existing or arising under any Swap Contract; provided that such obligations
are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities
issued by such Person, and not for purposes of speculation or taking a “market view”;
(e) Indebtedness
in respect of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations
set forth in the proviso to Section 7.01(i); provided, however, that the aggregate amount of all such Indebtedness
at any one time outstanding shall not exceed the greater of (x) $500,000,000 and (y) 7.5% of Consolidated Total Assets (determined
as of the date of incurrence of such Indebtedness);
(f) Indebtedness
in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion
guarantees provided by the Company and its Restricted Subsidiaries in the ordinary course of business;
(g) intercompany
Indebtedness permitted under Section 7.02 (other than clause (s) thereof); provided that in the case of
Indebtedness owing by a Loan Party to any Subsidiary that is not a Loan Party, such Indebtedness shall be unsecured and subordinated in
right of payment to the Obligations on a basis, and pursuant to an agreement, reasonably acceptable to the Administrative Agent;
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(h) Pari
Passu Indebtedness, Junior Secured Indebtedness and unsecured Indebtedness (any such Indebtedness, “Additional Indebtedness”);
provided in each case that (i) after giving effect to the incurrence of such Indebtedness and the application of the proceeds
thereof on a Pro Forma Basis (subject to the provisions of Section 1.10 in the case of any such Indebtedness incurred to finance
a Limited Condition Acquisition), (A) in the case of Pari Passu Indebtedness, the Consolidated First Lien Net Leverage Ratio would
be less than 3.00:1.00 (or, on and after the Collateral Release Date, the Consolidated Total Net Leverage Ratio (without giving effect
to the cap on cash netting in the definition thereof) would be less than 4.00:1.00), (B) in the case of Junior Secured Indebtedness,
the Consolidated Secured Net Leverage Ratio, would be less than 3.25:1.00 (or, on and after the Collateral Release Date, the Consolidated
Total Net Leverage Ratio (without giving effect to the cap on cash netting in the definition thereof) would be less than 4.00:1.00), and
(C) in the case of unsecured Indebtedness, the Consolidated Total Net Leverage Ratio (without giving effect to the cap on cash netting
in the definition thereof) would be less than 4.00:1.00, (ii) with respect to the incurrence of (A) any such Junior Secured
Indebtedness or unsecured Indebtedness, in each case, in excess of $100,000,000 or (B) any such Pari Passu Indebtedness, the Company
shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating compliance with the immediately preceding
sub-clauses (A), (B) and (C) of the immediately preceding clause (i), as applicable; (iii) no
Default or Event of Default shall exist at the time of, or would result from, the incurrence of, such Indebtedness; (iv) the maturity
date of such Indebtedness shall be at least ninety-one (91) days after the later of (A) the latest Maturity Date and (B) the
maturity date for any Incremental Term Loan; (v) the Weighted Average Life of any such Indebtedness shall not be shorter than the
then remaining Weighted Average Life of any other Term Loan; provided, that the foregoing clauses (iv) and (v) of
this Section 7.03(h) shall not apply to (I) Inside Maturity Indebtedness and (II) bridge Indebtedness incurred,
so long as (1)(x) at the initial maturity of such bridge Indebtedness, such bridge Indebtedness shall automatically convert to (or
would be required to be exchanged for) Indebtedness that complies with the foregoing clauses (iv) and (v) or (y) such
bridge Indebtedness is incurred with the intent to convert such bridge Indebtedness to permanent financing that complies with the foregoing
clauses (iv) and (v), and (B) the only prepayments required to be made on such bridge Indebtedness shall be such
prepayments as are customary for similar bridge financings in light of then-prevailing market conditions (as determined by the Company
in consultation with the Administrative Agent), (vi) such Additional Indebtedness shall be subject to intercreditor or subordination
agreements, as applicable, reasonably acceptable to the Administrative Agent; (vii) no Additional Indebtedness shall be Guaranteed
by any Person other than the Guarantors or secured by any property other than the Collateral; and (viii) the terms and conditions
including such financial maintenance covenants (if any) applicable to such Additional Indebtedness shall not be, when taken as a whole,
materially more restrictive (as determined by the Administrative Agent acting reasonably) than those contained in the Loan Documents (unless
such terms are conformed (or added) in the Loan Documents for the benefit of the Lenders pursuant to an amendment hereto or thereto subject
solely to the reasonable satisfaction of the Company and the Administrative Agent);
(i) Indebtedness
of any Borrower or any Restricted Subsidiary assumed or acquired connection with Permitted Acquisition (any such Indebtedness, “Acquired
Indebtedness”); provided that (i) such Indebtedness shall exist prior to the applicable Permitted Acquisition and
was not incurred in connection with, in anticipation or contemplation of, the applicable Permitted Acquisition and (ii) the aggregate
principal amount of all such Indebtedness shall not exceed the greater of (x) $350,000,000 and (y) 5.0% of Consolidated Total
Assets (determined as of the date of incurrence of such Indebtedness);
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(j) (i) Attributable
Indebtedness under any Securitization Transaction (other than, for the avoidance of doubt, any Permitted Receivables Transaction or the
Specified Receivables Purchase Agreement, each of which is governed by the provisions of the immediately succeeding clauses (ii) and
(iii)), (ii) to the extent constituting Indebtedness, the obligations of the Company or any Restricted Subsidiary pursuant
to any Permitted Receivables Transaction and (iii) to the extent constituting Indebtedness, the obligations of the Company or any
Restricted Subsidiary pursuant to the Specified Receivables Purchase Agreement; provided that the aggregate amount of all Indebtedness
and all outstanding sales of receivables permitted pursuant to this clause (j) shall not exceed at any time outstanding (A) so
long as (I) the Company maintains a current public corporate family rating of BB- or better from S&P or Ba3 or better from Moody’s,
(II) no Credit Extension (other than Letters of Credit and Term Loans) shall be outstanding and (III) no extension of credit
shall be outstanding under any other credit facility under which the Company or any Restricted Subsidiary is a borrower (other than any
letter of credit issued in the ordinary course of business), fifty percent (50%) or (B) under all other circumstances, thirty percent
(30%), in each case, of the aggregate book value of the trade accounts receivable of or owing to the Loan Parties, determined on a consolidated
basis prior to giving effect to prior Securitization Transactions, prior Permitted Receivables Transactions and the Specified Receivables
Purchase Agreement, in each case to the extent not collected on or prior to the date on which the relevant transaction is completed; provided,
further, that solely with respect to any Securitization Transaction entered into pursuant to sub-clause (i) of this
clause (j), (x) no Default or Event of Default shall exist immediately prior to or immediately after giving effect to such
Securitization Transaction, (y) prior to entering into such Securitization Transaction, the Company shall have delivered to the Administrative
Agent a Pro Forma Compliance Certificate demonstrating that, after giving effect to such Securitization Transaction on a Pro Forma Basis,
the Loan Parties would be in Pro Forma Compliance and (z) such Securitization Transaction shall be non-recourse to the Company and
its Restricted Subsidiaries other than with respect to purchase or repurchase obligations for breaches of representations and warranties,
performance guaranties and indemnity obligations and other similar undertakings in each case that are customary for similar standard market
accounts receivable securitizations;
(k) accrued
expenses (including salaries, accrued vacation and other compensation), current trade or other accounts payable and other current liabilities
arising in the ordinary course of business and not past due more than 90 days except to the extent being contested in good faith and by
appropriate proceedings;
(l) Indebtedness
arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out
obligations) incurred in connection with any disposition permitted hereunder, any acquisition or other purchase of assets or Equity Interests
permitted hereunder, and Indebtedness arising from surety bonds, performance bonds or similar instruments securing the performance of
the Company or any Restricted Subsidiary pursuant to such agreement;
(m) Indebtedness
arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(n) Indebtedness
in respect of premium financing arrangements; provided that the aggregate principal amount of such Indebtedness shall not exceed
the annual premium amount and shall be secured only by the Liens described in Section 7.01(y);
(o) Indebtedness
consisting of unsecured guarantees by the Company or any of its Restricted Subsidiaries of operating leases of any Loan Party (other than
the Company);
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(p) Indebtedness
in respect of commercial credit cards, stored value cards, employee credit cards, purchasing cards and treasury management services and
other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement,
ACH transactions, return items, interstate depository network service, Society for Worldwide Interbank Financial Telecommunication transfers,
cash pooling and operational foreign exchange management, and, in each case, similar arrangements and otherwise in connection with cash
management or customary banking arrangements, and deposit accounts, in each case to the extent incurred in the ordinary course of business;
provided that, to the extent any such arrangements create Indebtedness obligations or liabilities by a Loan Party to or with respect
to any Subsidiary that is not a Loan Party, such Indebtedness obligations or liabilities must be permitted under Section 7.02
(other than under Section 7.02(s) by reference to, or in reliance on, this clause (p));
(q) Indebtedness
representing deferred compensation to employees of the Company and its Subsidiaries;
(r) (i) Indebtedness
in respect of guarantees of the obligations of suppliers, customers and licensees in the ordinary course of business and (ii) Indebtedness
incurred in the ordinary course of business in respect of obligations of the Company or any Subsidiary to pay the deferred purchase price
of goods or services or progress payments in connection with such goods and services;
(s) unfunded
pension fund and other employee benefit plan obligations and liabilities incurred in the ordinary course of business to the extent that
the unfunded amounts would not otherwise cause an Event of Default;
(t) Indebtedness
consisting of obligations owing under any dealer, customer or supplier incentive, supply, license or similar agreements entered into in
the ordinary course of business;
(u) Indebtedness
consisting of (i) take-or-pay obligations contained in supply arrangements and/or (ii) obligations to reacquire assets or inventory
in connection with customer financing arrangements, in each case, in the ordinary course of business;
(v) (i) Indebtedness
of any Non-U.S. Subsidiary under (A) any Specified Local Facility or (B) any other local overdraft, working capital, letter
of credit or other facility or extension of credit, in each case incurred in the ordinary course of business of such Non-U.S. Subsidiary,
in an aggregate amount for all such Indebtedness incurred pursuant to this clause (v)(i) not to exceed at any time outstanding
the greater of (x) $500,000,000 and (y) 7.5% of Consolidated Total Assets (determined as of the date of incurrence of such Indebtedness);
provided that, in the event that any such facility is secured, to the extent deemed necessary or appropriate by the Administrative
Agent in its sole discretion, any such secured Indebtedness shall be subject to an intercreditor agreement in form and substance reasonably
acceptable to the Administrative Agent and (ii) Guarantees by the Company or any other Loan Party in respect of Indebtedness incurred
pursuant to the foregoing clause (v)(i);
(w) to
the extent constituting Indebtedness, customer deposits and advance payments received in the ordinary course of business from customers
for goods and services purchased in the ordinary course of business; and
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(x) other
Indebtedness in an aggregate principal amount not to exceed at any time outstanding the greater of (x) $700,000,000 and (y) 10.0%
of Consolidated Total Assets (determined as of the date of incurrence of such Indebtedness).
Notwithstanding anything to
the contrary in this Section 7.03 or otherwise, no Special Purpose Subsidiary shall contract, create, incur, assume or permit
to exist any Indebtedness other than Indebtedness existing from time to time under any Permitted Securitization Transaction.
Notwithstanding anything to
the contrary in this Section 7.03 or otherwise, on and after the Collateral Release Date, the aggregate principal amount of
Priority Indebtedness outstanding at any time shall not exceed the greater of (x) $1,000,000,000 and (y) 12.5% of Consolidated
Total Assets (determined as of the date of incurrence of such Indebtedness) (“Permitted Priority Indebtedness”).
7.04 Fundamental
Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction
or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Event of Default exists or would result therefrom:
(a) (i) the
Company may merge, amalgamate or consolidate with any of its Subsidiaries; provided that the Company is the continuing or surviving
Person, and (ii) any Restricted Subsidiary may merge, amalgamate or consolidate with (or engage in any similar transaction, including
to be acquired by or wound up into) any of the Company or one or more other Restricted Subsidiaries; provided that (x) if
a Guarantor is a party thereto, the continuing or surviving Person is a Borrower or a Guarantor, (y) if any Borrower is a party thereto,
a Borrower is the continuing or surviving Person and (z) if any Canadian Borrower is a party to any amalgamation, the new created
“amalgamated” Person shall provide to the Administrative Agent customary documents and other deliverables with respect to
the such Person;
(b) the
Company or any Restricted Subsidiary may merge or amalgamate with any other Person in connection with a Permitted Acquisition; provided
that (i) if the Company is a party thereto, the Company is the continuing or surviving Person, (ii) if a Borrower is a party
thereto, a Borrower is the continuing or surviving Person and (iii) if a Guarantor is a party thereto, such surviving Person shall
be a Borrower or a Guarantor;
(c) any
Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or
to another Restricted Subsidiary; provided that (i) if the transferor in such a transaction is a Loan Party, then the transferee
must be a Loan Party and (ii) if the transferor in such a transaction is a Borrower, the transferee must be a Borrower;
(d) (i) each
of the dissolutions, liquidations, consolidations and other Dispositions that are in process or slated to occur and described in Schedule
7.04, as of the Second Amendment Effective Date, may be consummated and (ii) any Subsidiary that is an Immaterial Subsidiary
or an Unrestricted Subsidiary may be dissolved, liquidated, or consolidated with or into another Person; provided that (A) with
respect to any such consolidation with or into another Person pursuant to this clause (d), (1) if a Borrower is a party thereto,
a Borrower is the continuing or surviving Person, (2) if a Guarantor is a party thereto, such surviving Person shall be a Borrower
or a Guarantor and (3) if a Restricted Subsidiary is a party thereto, such surviving Person shall be a Restricted Subsidiary, (B) with
respect to any such dissolution or liquidation pursuant to this clause (d), the assets of such Person so dissolved or liquidated
shall be transferred to (1) if such Person so dissolved or liquidated is a Borrower, a Borrower (2) if such Person so dissolved
or liquidated is a Guarantor, a Borrower or a Guarantor and (3) if such Person so dissolved or liquidated is a Restricted Subsidiary,
another Restricted Subsidiary and (C) with respect to any such Disposition pursuant to clause (d)(i), the assets so Disposed
shall be transferred to (1) if the Person making such Disposition is a Borrower, another Borrower, (2) if the Person making
such Disposition is a Guarantor, a Borrower or a Guarantor and (3) if the Person making such Disposition is a Restricted Subsidiary,
another Restricted Subsidiary; and
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(e) any Disposition
to the extent permitted by Section 7.05 (other than, for the avoidance of doubt, pursuant to clause (e) of such Section) shall be permitted under this Section 7.04.
7.05 Dispositions.
Make any Disposition or enter into any agreement to make any
Disposition, except:
(a) Dispositions
of used, obsolete, damaged, worn-out or surplus equipment, or property no longer useful in the conduct of the business or otherwise economically
impracticable to maintain, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Disposition
of inventory, goods held for sale and other assets and licenses of intellectual property (including on an intercompany basis), in each
case in the ordinary course of business;
(c) Dispositions
of equipment or real property to the extent that such property is exchanged for credit against, or the net cash proceeds of such Disposition
are reasonably promptly applied to, the purchase price of property useful in the business of the Company and its Restricted Subsidiaries
as conducted on the Closing Date;
(d) Dispositions
of property (including, for the avoidance of doubt, owned Equity Interests) to the Company or to another Restricted Subsidiary; provided
that if the transferor of such property is a Loan Party, the transferee thereof must be a Loan Party;
(e) Dispositions
permitted by Section 7.04 (other than clause (e) thereof) or Section 7.06;
(f) non-exclusive
licenses of IP Rights in the ordinary course of business and substantially consistent with past practice for terms not exceeding five
(5) years, so long as such non-exclusive license does not have a material adverse impact on the operation of business of the Company
and its Restricted Subsidiaries, or, prior to the Collateral Release Date, a material adverse impact on the value of the Collateral; provided,
that, this clause (f) shall not permit the granting of any license of IP Rights to any Unrestricted Subsidiary;
(g) Dispositions
of accounts receivable in connection with the collection or compromise thereof;
(h) licenses,
sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Company and its Restricted
Subsidiaries;
(i) Dispositions
of Cash Equivalents in the ordinary course of business;
(j) to
the extent constituting Dispositions, Recovery Events;
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(k) Dispositions
of Securitized Assets by (i) any Special Purpose Subsidiary in connection with any Permitted Securitization Transaction or (ii) the
Specified Receivables Purchase Agreement;
(l) the
Disposition of each of (i) the Toronto Property, (ii) all or any part of the Valencia Property, and (iii) the assets described
on Schedule 7.05, in the case of each of the foregoing clauses (i), (ii) and (iii), to any Person(s) other
than a Subsidiary in a single transaction or series of related transactions;
(m) the
Disposition of non-core or non-strategic assets acquired in connection with a Permitted Acquisition or similar Investment; provided
that (x) to the extent required by Section 2.06(b)(ii), such Net Cash Proceeds from any such sale are reinvested
or applied in prepayment of the Loans in accordance with the provisions of Section 2.06(b)(v), (y) immediately after
giving effect thereto, no Event of Default would exist and (z) the fair market value of such non-core or non-strategic assets (determined
as of the date of acquisition thereof by the applicable Loan Party or Restricted Subsidiary, as the case may be) so Disposed shall not
exceed twenty-five percent (25%) of the purchase price paid for all such assets acquired in such Permitted Acquisition;
(n) the
termination of a lease due to the default of the landlord thereunder or pursuant to any right of termination of the tenant under the lease;
(o) Dispositions
of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such similar
replacement property;
(p) the
lease or sub-lease of any real or personal property in the ordinary course of business and the termination or non-renewal of any real
property lease not used or not necessary to the operations of the Company or any Restricted Subsidiary;
(q) Dispositions
in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination
of the Company, are not material to the conduct of the business of the Company and its Subsidiaries, taken as a whole;
(r) Dispositions
of Investments in joint ventures or any Restricted Subsidiaries that are not wholly owned Subsidiaries to the extent required by, or made
pursuant to, buy/sell arrangements between joint venture or similar parties set forth in the relevant joint venture arrangements and/or
similar binding arrangements;
(s) Dispositions
or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that
are temporarily not in use, held for sale or closed;
(t) Dispositions
in connection with the termination or unwinding of Swap Contracts;
(u) Dispositions
of Equity Interests or Indebtedness of Unrestricted Subsidiaries;
(v) exchanges
or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction),
of property or assets so long as the exchange or swap is made for fair value (as reasonably determined by the Company) for like property
or assets; provided that (i) within ninety (90) days of any such exchange or swap, in the case of any Loan Party and to the
extent such property does not constitute Excluded Property, the Administrative Agent has a perfected Lien having the same priority as
any Lien held on the property so exchanged or swapped and (ii) any Net Cash Proceeds received as a “cash boot” in connection
with any such transaction shall be applied and/or reinvested as (and to the extent) required by Section 2.06;
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(w) any
merger, consolidation, Disposition or conveyance, the sole purpose and effect of which is to reincorporate or reorganize (i) any
U.S. Subsidiary in another jurisdiction in the U.S. or (ii) any Non-U.S. Subsidiary in the U.S. or any other jurisdiction; provided,
that any Loan Party involved in such transaction does not become an Excluded Subsidiary (except to the extent that it is or becomes an
Immaterial Subsidiary so long as it remains a Loan Party hereunder) as a result of such transaction and any Restricted Subsidiary does
not become an Unrestricted Subsidiary as a result of such transaction unless the designation of such Restricted Subsidiary as an Unrestricted
Subsidiary is permitted under Section 6.20 at such time;
(x) Dispositions
of accounts receivable due from any customer of the Company or any Restricted Subsidiary in connection with such customer’s supplier
financing program pursuant to a customary receivables sale agreement (each such Disposition, a “Permitted Receivables Transaction”);
provided that (i) any such sale is made on a nonrecourse basis to the Company and its Restricted Subsidiaries other than with
respect to the representations given by the Company or the applicable Restricted Subsidiary, as the case may be, in connection with such
receivables, (ii) if the Company or such Restricted Subsidiary, as the case may be, receives an updated pricing schedule that provides
for a total “discount rate” resulting in more than a five percent (5%) discount on the total amount of each account receivable
sold pursuant to such receivables sale agreement (i.e., discounting any such receivable so that the receivables would be sold for
less than “95 cents on the dollar”), the Company or such Restricted Subsidiary, as the case may be, does not permit any such
receivables to be sold at such discount rate for more than five (5) Business Days after its receipt of such updated pricing schedule
and (iii) any lien release and UCC-3 financing statement amendment to be filed in connection with such lien release shall be reasonably
satisfactory (including with respect to the terms and conditions thereof in the case of any such lien release) to the Administrative Agent
and such UCC-3 financing statement amendment shall be promptly filed by the Administrative Agent after entering into such lien release;
(y) Dispositions
of inventory pursuant to any Permitted Inventory Financing Arrangement; and
(z) Dispositions
not otherwise permitted under this Section 7.05, so long as (i) no Default or Event of Default has occurred and is continuing,
(ii) solely with respect to any individual Disposition (or series of related Dispositions) for consideration exceeding $100,000,000,
at least seventy-five percent (75%) of the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneously
with consummation of the transaction, (iii) the consideration paid in connection therewith shall be in an amount not less than the
fair market value of the property disposed of (as reasonably determined by the Company), (iv) such transaction does not involve the
Disposition of a minority Equity Interest in any Loan Party (other than the Company), and (v) such Disposition does not involve a
Disposition of receivables other than receivables owned by or attributable to other property concurrently being disposed of in a Disposition
otherwise permitted under this Section 7.05.
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7.06 Restricted
Payments and Junior Payments. Declare or make, directly or indirectly, any Restricted Payment or any Junior Payment, or incur any
obligation (contingent or otherwise) to do so, except:
(a) each
Restricted Subsidiary may make Restricted Payments to the Company, the Guarantors and any other Person that owns an Equity Interest in
such Restricted Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted
Payment is being made;
(b) the
Company and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other
common Equity Interests of such Person;
(c) the
Company and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the
substantially concurrent issue of new shares of its common stock or other common Equity Interests;
(d) to
the extent constituting Restricted Payments, (i) transactions contemplated by or required under any of (A) the Long Term Incentive
Plan of the Company, (B) the Celestica Share Unit Plan of the Company or (C) the Directors’ Share Compensation Plan of
the Company or any replacement or successor plan thereto, and (ii) transactions contemplated by or required under any other employment,
compensation or separation agreement or arrangement entered into by the Company or any Restricted Subsidiary in the ordinary course of
business;
(e) the
Company may make Restricted Payments and Junior Payments (including, without limitation, normal-course issuer bids) in an aggregate amount
not exceeding the Available Amount; provided that (i) at the time of any such Restricted Payment or Junior Payment, no Event
of Default then exists or would arise therefrom and (ii) after giving effect to such Restricted Payment or Junior Payment, as applicable,
on a Pro Forma Basis, the Consolidated Total Net Leverage Ratio (without giving effect to the cap on cash netting in the definition thereof)
shall not exceed 3.75:1.00; and
(f) the
Company may make Restricted Payments and Junior Payments (including, without limitation, normal-course issuer bids) in an aggregate amount
during the term of this Agreement not to exceed the sum of (i) the greater of (x) $700,000,000 and (y) 10.0% of Consolidated
Total Assets (determined as of the date of the making of such Restricted Payment), plus (ii) an unlimited amount so long as
after giving effect to such Restricted Payment or Junior Payment, as applicable, on a Pro Forma Basis, (x) prior to the Collateral
Release Date, the Consolidated Secured Net Leverage Ratio shall be less than 3.00:1.00 or (y) on and after the Collateral Release
Date, the Consolidated Total Net Leverage Ratio shall be less than 3.00:1.00; provided that no Default or Event of Default then
exists or would arise therefrom (for purposes of clarity, the amount of any Restricted Payment made in reliance on the immediately preceding
clause (ii) and permitted thereunder at such time shall not be included in any calculation of the amount available in the
immediately preceding clause (i)).
7.07 Change
in Nature of Business. Engage in any material line of business other than those lines of business conducted by the Company and its
Restricted Subsidiaries on the Closing Date and/or any business similar, complementary, ancillary, adjacent, reasonably related or incidental
thereto.
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7.08 Transactions
with Affiliates. Enter into any transaction of any kind with any Affiliate (other than the Company or a Restricted Subsidiary) of
the Company, whether or not in the ordinary course of business, other than (a) reasonable and customary compensation and reimbursement
expenses of officers and directors, (b) stock option plans for officers, management and other employees, (c) transactions solely
between or among the Company and/or one or more Restricted Subsidiaries or any Person that becomes a Restricted Subsidiary as a result
of such transaction, (d) any dividends or distributions on account of shares of any Equity Interests issued by Subsidiaries of the
Company ratably to the holders thereof, (e) transactions between or among the Company and/or one or more Restricted Subsidiaries
and their Affiliates that are required under applicable Law or by any Governmental Authority, (f) transactions entered into on or
prior to the Second Amendment Effective Date and described on Schedule 7.08 and (g) other transactions on terms not materially
less favorable to the Company or such Restricted Subsidiary as would be obtainable by the Company or such Restricted Subsidiary at the
time in a comparable arm’s length transaction with a Person other than an Affiliate.
7.09 Burdensome
Agreements. Enter into any Contractual Obligation (other than this Agreement or any other Loan Document) that (a) limits the
ability (i) of any Restricted Subsidiary to make Restricted Payments to the Company or any Loan Party or to otherwise transfer property
to the Company or any Loan Party, (ii) of any Restricted Subsidiary to Guarantee the Indebtedness of the Borrowers or (iii) of
the Company or any Restricted Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person; provided,
however, that this clause (iii) shall not prohibit any negative pledge (x) incurred or provided in favor of any
holder of Indebtedness permitted under Section 7.03(e) solely to the extent any such negative pledge relates to the
property financed by or the subject of such Indebtedness or (y) contained in the Specified Receivables Purchase Agreement or in any
document or instrument governing any Permitted Securitization Transaction or any Permitted Receivables Transaction; provided that
any such restriction relates only to the applicable Securitized Assets or, in the case of any Permitted Receivables Transaction, accounts
receivable actually sold, conveyed, pledged, encumbered or otherwise contributed pursuant to the Specified Receivables Purchase Agreement,
to such Permitted Securitization Transaction or to such Permitted Receivables Transaction, as applicable; or (b) requires the grant
of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person, in the case of each
of clauses (a) and (b), other than Contractual Obligations:
(a) set
forth in any agreement evidencing (i) Indebtedness of a Restricted Subsidiary that is not a Loan Party permitted by Section 7.03,
(ii) Indebtedness permitted by Section 7.03 that is secured by a Permitted Lien if the relevant restriction applies only
to the Person obligated under such Indebtedness and its Restricted Subsidiaries or the property or assets intended to secure such Indebtedness
(provided that, in each case, prior to the Collateral Release Date, such restrictions do not restrict the Liens securing the Obligations
or the first priority status thereof) and (iii) Indebtedness permitted pursuant to clauses (e), (j) and/or (w) of
Section 7.03 (including any refinancings or replacements of any of the foregoing);
(b) that
are or were created by virtue of any Lien granted upon, Disposition of, transfer of, agreement to transfer or grant of, any option or
right with respect to any property, assets or Equity Interests not otherwise prohibited under this Agreement; provided that such
Lien is only on or with respect to the property, assets or Equity Interests subject to such Disposition, transfer, agreement to transfer
or option or right;
(c) arising
under or as a result of applicable Law or the requirements of any Governmental Authority or the terms of any license, authorization, concession
or permit obtained in the ordinary course of business;
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(d) arising
under customary non-assignment provisions with respect to assignments, leases, subletting or other transfers (including the granting
of any Lien) contained in leases, subleases, licenses, sublicenses, joint venture agreements and other agreements, in each case entered
into in the ordinary course of business;
(e) imposed
by customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements
and other similar agreements but solely with respect to the Equity Interests of such partnership, limited liability company or joint venture;
(f) that
are assumed in connection with any acquisition of property or the Equity Interests of any Person, so long as the relevant encumbrance
or restriction relates solely to the Person and its subsidiaries (including the Equity Interests of the relevant Person or Persons) and/or
property so acquired and was not created in connection with or in anticipation of such acquisition;
(g) set
forth in any agreement for any Disposition of any Restricted Subsidiary (or all or substantially all of the property and/or assets thereof)
that restricts the payment of dividends or other distributions or the making of cash loans or advances by such Restricted Subsidiary pending
such Disposition;
(h) set
forth in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any class
of Equity Interests of a Person other than on a pro rata basis;
(i) set
forth in documents which exist on the Second Amendment Effective Date and were not created in contemplation thereof and which are set
forth on Schedule 7.09;
(j) on
cash, other deposits or net worth or similar restrictions imposed by Persons under contracts entered into in the ordinary course of business
or for whose benefit such cash, other deposits or net worth or similar restrictions exist;
(k) arising
in any Swap Contract and/or any agreement relating to any Swap Obligation or obligations of the type referred to in Section 7.03(d);
(l) arising
pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred hereunder if (x) the relevant restrictions,
taken as a whole, are not materially less favorable to the Lenders than the restrictions contained in this Agreement, taken as a whole
(as determined in good faith by the Company) and (y) prior to the Collateral Release Date, the relevant restrictions do not restrict
the Liens securing the Obligations or the first priority status thereof;
(m) relating
to any asset (or all of the assets) of and/or the Equity Interests of any Restricted Subsidiary which are imposed pursuant to an agreement
entered into in connection with any Disposition of such asset (or assets) and/or all or a portion of the Equity Interests of the relevant
Person that is permitted or not restricted by this Agreement;
(n) set
forth in any agreement relating to any Permitted Lien that limits the right of the Company or any Restricted Subsidiary to Dispose of
or encumber the assets subject thereto; and
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(o) imposed
by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (a) through (n) above; provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancing are, in the reasonable judgment
of the Company, not materially more restrictive with respect to such encumbrances and other restrictions, taken as a whole, than those
in effect prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
7.10 Use
of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately,
to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing
or carrying margin stock or to refund indebtedness originally incurred for such purpose.
7.11 Financial
Covenants.
(a) Consolidated
Interest Coverage Ratio. Except with the consent of the Required Pro Rata Facilities Lenders, permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of the Company to be less than 3.25:1.00.
(b) Consolidated
Total Net Leverage Ratio. Except with the consent of the Required Pro Rata Facilities Lenders, permit the Consolidated Total Net
Leverage Ratio at any time during any period of four (4) fiscal quarters of the Company to be greater than 4.00:1.00; provided,
that, upon the occurrence of a Qualified Acquisition, for the four (4) fiscal quarters commencing with the fiscal quarter
during which such Qualified Acquisition closes (each such period, a “Leverage Increase Period”), the required ratio
set forth above may, upon receipt by the Administrative Agent of a Qualified Acquisition Notice, be increased to 4.50:1.00; provided
further, that (i) the maximum Consolidated Total Net Leverage Ratio permitted pursuant to this Section 7.11(b) shall
revert to 4.00:1.00 following the end of each Leverage Increase Period, (ii) for at least two (2) fiscal quarters ending immediately
following each Leverage Increase Period, the Consolidated Total Net Leverage Ratio as of the end of each such fiscal quarter shall not
be permitted to be greater than 4:00:1.00 prior to giving effect to another Leverage Increase Period and (iii) the Leverage Increase
Period shall apply for purposes of determining compliance with this Section 7.11(b), for purposes of any Qualified Acquisition
Pro Forma Determination and for purposes of determining Pro Forma Compliance in connection with the incurrence of Indebtedness to finance
such Qualified Acquisition under Section 2.16 or Section 7.03(h).
7.12 Organization
Documents; Fiscal Year; Legal Name, Jurisdiction of Formation and Form of Entity.
(a) Amend,
modify or change its Organization Documents in a manner materially adverse to the Lenders;
(b) Change
the Company’s fiscal year;
(c) Without
providing ten (10) days (or such lesser period as the Administrative Agent may agree) prior written notice to the Administrative
Agent, change its name, jurisdiction of formation or form of organization; or
(d) Make
any change in accounting policies or reporting practices, except (i) as required by the Applicable Accounting Standard as in effect
on such date, and (ii) for the Accounting Standard Change.
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7.13 Sale
Leasebacks. Enter into any Sale and Leaseback Transaction; provided that any Sale and Leaseback Transaction shall be permitted
so long as in connection with such Sale and Leaseback Transaction (1) cash consideration is received by the Company or any of its
Restricted Subsidiaries for the property subject thereto, (2) the Company or its applicable Restricted Subsidiary would otherwise
be permitted to enter into, and remain liable under, the applicable underlying lease and (3) the aggregate fair market value of the
property sold pursuant to all such Sale and Leaseback Transactions under this Section 7.13 shall not exceed $250,000,000.
7.14 Amendments
to and Prepayments of Additional Indebtedness.
(a) Amend
or modify any of the terms of any Additional Indebtedness if after giving effect to such amendment or modification the terms of such Additional
Indebtedness would not satisfy the requirements of clauses (iv) through (viii) of Section 7.03(h);
(b) Make
(or give any notice with respect thereto) any voluntary prepayment or redemption or acquisition for value of (including without limitation,
by way of depositing money or securities with the trustee with respect thereto before due for the purpose of paying when due), or refund,
refinance or exchange, any Additional Indebtedness except for (i) Junior Payments permitted by Section 7.06 and (ii) in
the case of the giving of notice with respect to any such voluntary prepayment, redemption, acquisition for value, refund, refinance or
exchange, any such notice given in connection with the repayment in full of all Obligations and the termination of the Aggregate Commitments;
(c) Amend
or modify any of the subordination provisions applicable to any Subordinated Indebtedness without the prior written consent of the Administrative
Agent; or
(d) Make
any payments in respect of any Subordinated Indebtedness or Junior Secured Indebtedness in violation of the subordination provisions applicable
to such Subordinated Indebtedness or Junior Secured Indebtedness, as applicable.
7.15 Canadian
Pension Matters. Maintain, contribute to, or incur any liability or contingent liability in respect of a Canadian Defined Benefit
Pension Plan, except as a result of the consummation of a Permitted Acquisition, or with the prior written consent of the Administrative
Agent.
7.16 Sanctions.
Directly or knowingly indirectly, use any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make
available such Credit Extension or the proceeds of any Credit Extension to any Person, to fund any activities of or business with any
Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that
will result in a violation by any Person (including any Person participating in the transaction, whether as Lender, Arranger, Sustainability
Coordinator, Administrative Agent, L/C Issuer, Swing Line Lender, or otherwise) of Sanctions.
7.17 Anti-Corruption
Laws. Directly or knowingly indirectly use any Credit Extension or the proceeds of any Credit Extension for any purpose which would
breach the United States Foreign Corrupt Practices Act of 1977, the Corruption of Foreign Public Officials Act (Canada), the UK Bribery
Act 2010, and other similar anti-corruption legislation in other jurisdictions in which a Borrower or any of its Subsidiaries conducts
business or owns property.
7.18 Outbound
Investment Rules. Directly or indirectly, (a) be or become a “covered foreign person”, as that term is defined
in the Outbound Investment Rules, or (b) engage in (i) a “covered activity” or a “covered
transaction”, as each such term is defined in the Outbound Investment Rules, (ii) any activity or transaction that would
constitute a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound
Investment Rules, if the Company or such Subsidiary were a U.S. Person (Outbound Investments), or (iii) any other activity that
would cause the Administrative Agent or any Lender to be in violation of the Outbound Investment Rules or cause the
Administrative Agent or any Lender to be legally prohibited by the Outbound Investment Rules from performing under this
Agreement or any other Loan Document.
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7.19 Transfers
to Non-Loan Parties. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document, consummate any
transaction that results (whether by way of a Restricted Payment, Investment, Disposition, designation of a Restricted Subsidiary
as an Unrestricted Subsidiary, or otherwise, and whether in a single transaction or a series of transactions) in the transfer (including
an exclusive license) of any IP Rights that are material to the Company and its Restricted Subsidiaries (or the Equity Interests in any
Subsidiary that owns any such IP Rights) from the Company or any Restricted Subsidiary to (x) any Restricted Subsidiary that is not
a Loan Party (other than any such transfer from a Restricted Subsidiary that is not a Loan Party to a Restricted Subsidiary that is not
a Loan Party) or (y) any Affiliate that is not the Company or a Restricted Subsidiary unless, in the case of this clause (y),
such transfer is made on an arm’s length basis and, if the transferee is an Unrestricted Subsidiary, such transfer complies with
Section 6.20.
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.
Any Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, and in the currency required hereunder,
any amount of principal of any Loan or any L/C Obligation, or (ii) within five (5) Business Days after the same becomes due,
any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five (5) Business Days after the
same becomes due, any other amount payable hereunder or under any other Loan Document; or
(b) Specific
Covenants. Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Section 6.01,
6.02, 6.03(a), 6.05(a) or 6.10 or Article VII; provided that any such failure to observe
or perform any of the covenants set forth in Section 7.11 shall not constitute an Event of Default for purposes of the Term
B Loan or any Incremental Tranche B Term Facility unless and until the Administrative Agent or the Required Pro Rata Facilities Lenders
first exercise any remedy in accordance with this Article VIII in respect of such breach (and until such time, the failure
to comply with Section 7.11 shall only constitute an Event of Default with respect to the Aggregate Revolving Commitments,
the Term A Loan and any Incremental Tranche A Term Facilities); provided, further, that any Event of Default under any of
the covenants set forth in Section 7.11 may be amended, waived or otherwise modified from time to time by the Required Pro
Rata Facilities Lenders pursuant to Section 10.01; or
(c) Other
Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in clauses (a) or
(b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30)
days after the earlier of (i) a Responsible Officer of a Loan Party having actual knowledge of such failure, or (ii) receipt
by a Responsible Officer of the Company of notice from the Administrative Agent or any Lender of such failure; or
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(d) Representations
and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Company
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 respect (or in any material respect if such representation or warranty is not by its terms already qualified
as to materiality or Material Adverse Effect) when made or deemed made; or
(e) Cross-Default.
(i) The Company or any Restricted Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness
under Swap Contracts) having an aggregate principal amount (including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount and the continuation of such failure beyond any applicable grace or cure period,
or (B) after giving effect to any applicable grace or cure period, fails to observe or perform any other agreement or condition relating
to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other
event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary
or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity,
or such Guarantee to become payable or cash collateral in respect thereof to be demanded (provided that any breach of any covenant
or agreement contained in Section 7.11 that may give rise to an event described in clause (B) above shall not,
by itself, constitute an Event of Default for purposes of the Term B Loan or any Incremental Tranche B Term Facility unless and until
the Administrative Agent or Required Pro Rata Facilities Lenders shall first exercise any remedy in accordance with this Article VIII
as a result of such breach); or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which the Company or any Restricted Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Company
or any Restricted Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Company
or such Restricted Subsidiary as a result thereof is greater than the Threshold Amount and, in the case of any Termination Event not arising
out of a default by the Company or any Restricted Subsidiary, such Swap Termination Value has not been paid by the Company or such Restricted
Subsidiary when due; or
(f) Insolvency
Proceedings, Etc. Any Loan Party or any Material Restricted Subsidiary institutes or consents
to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; makes a
proposal to its creditors or files notice of its intention to do so, institutes any other proceeding under applicable Law seeking to
adjudicate it a bankrupt or an insolvent, or seeking liquidation, dissolution, winding-up, reorganization, compromise, arrangement,
adjustment, protection, moratorium, relief, stay of proceedings of creditors, composition of it or its debts, examinership, rescue
process or any other similar relief; or applies for or consents to the appointment of any receiver, receiver-manager, trustee,
custodian, conservator, liquidator, provisional liquidator, restructuring officer, rehabilitator, judicial manager, administrator,
examiner, process adviser or similar officer for it or for all or any material part of its property; or any receiver,
receiver-manager, trustee, custodian, conservator, liquidator, provisional liquidator, restructuring officer, rehabilitator,
judicial manager, administrator, examiner, process adviser or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for sixty (60) consecutive 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 sixty (60) calendar days, or an order for relief is entered in any such
proceeding; or
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(g) Inability
to Pay Debts; Attachment. (i) Subject to the immediately succeeding clause (iii), any Loan Party or any Material Restricted
Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, (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 thirty (30) days after its issue or levy, or (iii) any Singapore Entity
that is a Loan Party or a Material Restricted Subsidiary becomes or will be unable or admits in writing its inability or fails generally
to pay its debts as they become due; or
(h) Judgments.
There is entered against the Company or any Restricted Subsidiary
(a) 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 Threshold
Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any
one or more non-monetary final judgments that have, or would reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there
is a period of thirty (30) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise,
is not in effect; or
(i) ERISA
and Canadian Pension Plan Events. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted
or would reasonably be expected to result in liability of the Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan
or the PBGC in an aggregate amount in excess of the Threshold Amount, (ii) the Company 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 in an aggregate amount in excess of the Threshold Amount or (iii) any failure by any Loan Party
or any Subsidiary to perform its obligations under, or the incurrence by any Loan Party or any Subsidiary of any liability or contingent
liability in respect of, a Canadian Pension Plan which has resulted or could reasonably be expected to result in liability of any Loan
Party in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity
of Loan Documents. Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted
hereunder or satisfaction in full of all the Obligations (other than contingent indemnification obligations for which no claim or demand
has yet been made), ceases to be in full force and effect; or any Loan Party or any Subsidiary contests in any manner the validity or
enforceability of any Loan Document for any reason other than satisfaction in full of all the Obligations (other than contingent indemnification
obligations for which no claim or demand has yet been made); 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 provision of any Loan Document (other than upon satisfaction
in full of the Obligations (other than contingent indemnification obligations for which no claim or demand has yet been made)); or
(k) Change
of Control. There occurs any Change of Control; or
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(l) Subordinated
Indebtedness. The subordination provisions applicable to any Subordinated Indebtedness shall, in each case, in whole or in part,
terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of such Subordinated
Indebtedness; or
(m) Declared
Company. Any Loan Party is declared by the Minister of Finance of Singapore to be a company to which Part 9 of the Companies
Act, 1967 of Singapore applies.
8.02 Remedies
Upon Event of Default. If any Event of Default occurs and is continuing:
(a) if
such Event of Default is an Event of Default specified in Section 8.01(b) above as a result of any Loan
Party’s failure to perform or observe Section 7.11, the Administrative Agent shall, at the request of, or may,
with the consent of, the Required Pro Rata Facilities Lenders, take any or all of the following actions:
(i) declare
the commitment of each Revolving Lender to make Revolving Loans, the commitment of each Lender in respect of any unfunded Incremental
Tranche A Term Loan, any obligation of the Swing Line Lender to make Swing Line Loans and any obligation of the L/C Issuers to make L/C
Credit Extensions to be terminated, whereupon such commitments and obligations shall be terminated;
(ii) declare
the unpaid principal amount of all outstanding Revolving Loans, Swing Line Loans, Incremental Tranche A Term Loans, the Term A Loan,
all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document in respect
of the Revolving Commitments, Term A Loan and Incremental Tranche A Term Loans to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly waived by each Borrower; and
(iii) require
that the Borrowers Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto);
or
(b) if
such Event of Default is any Event of Default other than an Event of Default specified in Section 8.01(b) above as
a result of any Loan Party’s failure to perform or observe Section 7.11 (or, if (x) such Event of Default is
an Event of Default specified in Section 8.01(b) above as a result of any Loan Party’s failure to perform or
observe Section 7.11 and (y) the Administrative Agent has taken any of the actions described in the immediately
preceding clause (a)), 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:
(i) declare
the commitment of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit Extensions to be terminated, whereupon
such commitments and obligation shall be terminated;
(ii) 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 each Borrower;
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(iii) require
that the Borrowers Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto);
and
(iv) exercise
on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable law
or equity;
provided, however, that
upon the occurrence of an event described in Section 8.01(f) or an actual or deemed entry of an order for relief with
respect to any Borrower under the Bankruptcy Code (or any similar occurrence in any other Debtor Relief Laws), the obligation of each
Lender to make Loans and any obligation of the L/C Issuers 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 Borrowers 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.
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 Issuers (including fees, charges and disbursements of counsel to the respective Lenders and applicable
L/C Issuers payable in accordance with the terms of this Agreement and any of the other Loan Documents 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
(i) that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans and L/C Borrowings
and (ii) accrued and unpaid interest and fees with respect to any Specified Local Facility, all ratably among Bank of America or
any of its Affiliates (with respect to any Specified Local Facility), the Lenders and the L/C Issuers in proportion to the respective
amounts described in this clause Third payable to them;
Fourth, to payment
of that portion of the Obligations constituting (i) unpaid principal of the Loans and L/C Borrowings, (ii) Swap Termination
Values under any Secured Swap Contract (to the extent such Secured Swap Contract shall have been terminated and as to which the Administrative
Agent shall have received notice of such termination and the Swap Termination Value thereof), (iii) amounts owing under any Secured
Cash Management Agreements, (iv) obligations to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn
amount of Letters of Credit and (v) payment of the unpaid principal of any Specified Local Facility, all ratably among Bank of America
or any of its Affiliates (with respect to any Specified Local Facility), the Lenders (and in the case of Secured Swap Contracts, any Affiliate
of a Lender) and the L/C Issuers in proportion to the respective amounts described in this clause Fourth held by them;
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Fifth, to the Administrative
Agent for the account of each L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount
of Letters of Credit issued by it to the extent not otherwise Cash Collateralized by the Company pursuant to Sections 2.03 and
2.17; and
Last, the balance,
if any, after all of the Obligations have been indefeasibly paid in full (other than contingent indemnification obligations for which
no claim or demand has been made), to the applicable Loan Party or Loan Parties or as otherwise required by Law.
Subject to Sections 2.03(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. Notwithstanding the foregoing, payments and Cash Collateral provided by a Designated Borrower shall only
be applied to the Obligations of such Designated Borrower. Excluded Swap Obligations with respect to any Loan Party shall not be paid
with amounts received from such Loan Party or such Loan Party’s assets, but appropriate adjustments shall be made with respect to
payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section.
Notwithstanding anything in
this Section 8.03 to the contrary, amounts received from any Specified Non-U.S. Obligor or Specified U.S. Obligor with respect
to the Obligations shall only be applied to satisfy Non-U.S. Obligations.
Notwithstanding the foregoing,
Obligations arising under Secured Cash Management Agreements and Secured Swap Contracts shall be excluded from the application described
above if the Administrative Agent has not received a Secured Party Designation Notice, together with such supporting documentation as
the Administrative Agent may request, from the applicable Lender or Affiliate thereof, as the case may be (unless such Lender or Affiliate
is the Administrative Agent or an Affiliate thereof, in which case no Secured Party Designation Notice is required). Each Affiliate of
a Lender that is not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice,
be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX
for itself and its Affiliates as if a “Lender” party hereto. Notwithstanding the foregoing, payments and Cash Collateral provided
by a Designated Borrower shall only be applied to the Obligations of such Designated Borrower. Excluded Swap Obligations with respect
to any Loan Party shall not be paid with amounts received from such Loan Party or such Loan Party’s assets, but appropriate adjustments
shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in
this Section.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment
and Authority. Each of the Lenders and each of the L/C Issuers hereby irrevocably appoints Bank of America 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 (including, for the avoidance of doubt, representing each
of the Lenders before a Spanish notary in connection with the notarization of this Agreement (or any novation, amendment,
supplement, restatement, replacement or assignment) into a Spanish Public Document). The provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and neither the Company 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.
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The Administrative Agent shall,
prior to the Collateral Release Date, also act as the “collateral agent” under the Loan Documents, and each of the Lenders
(in its capacities as a Lender, Swing Line Lender (if applicable), party to any Secured Swap Contract and party to any Secured Cash Management
Agreement), each of the L/C Issuers and other Secured Parties hereby irrevocably appoints and authorizes the Administrative Agent to act
as the agent (including, in respect of any Collateral Documents governed under the laws of England and Wales, as security agent and security
trustee, and accordingly, any reference to “collateral agent” in this Agreement shall include the Administrative Agent acting
as security agent and security trustee) of such Lender, such L/C Issuer and the other Secured Parties for purposes of acquiring, holding
(and including, in respect of any Collateral Documents governed under the laws of England and Wales, holding on trust on behalf of the
Secured Parties on the terms contained in the Loan Documents) and enforcing any and all Liens on Collateral, together with such powers
and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and
any agent, co-agents, attorneys, delegates, co-trustees, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant
to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the
Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled
to the benefits of all provisions of this Article IX and Article X (including Section 10.04(c)), as
though such agent, co-agents, attorneys, delegates, co-trustees, sub-agents and attorneys-in-fact were the “collateral agent”
under the Loan Documents as if set forth in full herein with respect thereto.
Without limiting the powers
of the collateral agent pursuant to the terms hereof or of the other Loan Documents, prior to the Collateral Release Date, for the purposes
of holding any Liens granted by any of the Loan Parties under the laws of the Province of Quebec pursuant to the Collateral Documents,
each of the Lenders and each of the L/C Issuers hereby acknowledges that the collateral agent shall be and act as the hypothecary representative
of all present and future Lenders (in its capacities as a Lender, Swing Line Lender (if applicable), party to any Secured Swap Contract
and party to any Secured Cash Management Agreement) and L/C Issuers for all purposes of Article 2692 of the Civil Code of Quebec
(the “Hypothecary Representative”). Each of the Secured Parties therefore appoints, to the extent necessary, the collateral
agent as its Hypothecary Representative to hold the Liens created pursuant to such Collateral Documents in order to secure the Obligations.
The collateral agent accepts to act as Hypothecary Representative of all present and future Secured Parties for all purposes of Article 2692
of the Civil Code of Quebec.
Further, without
limiting the powers of the collateral agent pursuant to the terms hereof or of the other Loan Documents, prior to the Collateral
Release Date, for the purposes of holding any Liens granted by any of the Loan Parties under the laws of Ireland and/or England and
Wales pursuant to the Collateral Documents, the Administrative Agent declares itself as trustee of the Collateral created thereby
and each of the Lenders, the Swing Line Lender, each L/C Issuer and each other Secured Party hereby acknowledges that the collateral
agent shall be and act as trustee of that Collateral (whereby such trust is to be recognized under the laws of Ireland and/or
England and Wales, as applicable). Each of the Secured Parties therefore appoints, to the extent necessary, the collateral agent as
trustee to hold the Liens created pursuant to such Collateral Documents in order to secure the Obligations. On acting as trustee of
the Collateral, the Administrative Agent (together with any agents, co-agents, attorneys, delegates, co-trustees, sub-agents and
attorneys-in-fact appointed by the Administrative Agent in accordance with the terms of the Loan Documents) shall have the
protections, immunities, rights, powers, authorizations, indemnities and benefits conferred on it under and by this Agreement and
the other Loan Documents.
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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, own securities of,
act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Loan Party 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. Neither the Administrative Agent, any Arranger, nor any Sustainability Coordinator, as applicable, shall have any duties
or obligations except those expressly set forth herein and in the other Loan Documents, and their duties hereunder shall be administrative
in nature. Without limiting the generality of the foregoing, the Administrative Agent, each Arranger, or each Sustainability Coordinator,
as applicable, and their Related Parties:
(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, including for the avoidance
of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification
or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(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 any Loan Party or any of its Affiliates that is communicated to or obtained by the Person
serving as the Administrative Agent, an Arranger, a Sustainability Coordinator or any of their 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 as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative
Agent by the Company, a Lender or an L/C Issuer.
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.
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None of the Sustainability
Coordinators shall be responsible for (or have any liability in respect of) reviewing, auditing, or otherwise evaluating any calculation
by the Company of the relevant SPTs and/or KPIs (or any of the data or computations that are part of or related to any such calculation)
in connection herewith or with any other Loan Documents.
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, extension,
renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the Administrative
Agent may presume that such condition is satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall have received
notice to the contrary from such Lender or such 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 Company), 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 agents, sub-agents, attorneys, delegates or co-trustees appointed by the Administrative
Agent. The Administrative Agent and any such agent, sub-agent, attorney, delegate or co-trustee 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 agent, sub-agent, attorney, delegate or co-trustee and to the Related Parties of the Administrative Agent and any such
agent, sub-agent, attorney, delegate or co-trustee 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 agents,
sub-agents, attorneys, delegates or co-trustees.
9.06 Resignation
of Administrative Agent.
(a) The
Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Company. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company, and, at all times other
than during the existence of an Event of Default, with the Company’s consent (such consent not to be unreasonably withheld),
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 thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as
shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative
Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent
meeting the qualifications set forth above; provided that in no event shall any such successor Administrative Agent be a
Defaulting Lender. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such
notice on the Resignation Effective Date.
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(b) If
the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required
Lenders may, to the extent permitted by applicable Law, by notice in writing to the Company and such Person remove such Person as Administrative
Agent and, in consultation with the Company and, at all times other than during the existence of an Event of Default, with the Company’s
consent (such consent not to be unreasonably withheld), appoint a successor. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required
Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such
notice on the Removal Effective Date.
(c) With
effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative
Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the
retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative
Agent is appointed) and (ii) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative
Agent, 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 each L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor Administrative
Agent as provided for above. 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 removed) Administrative Agent
(other than as provided in Section 3.01(g) and other than any rights to indemnity payments or other amounts owed to the
retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring
or removed 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 9.06). The fees payable by the Company to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor.
After the retiring or removed Administrative Agent’s resignation or removal 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 or removed 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 (A) while
the retiring or removed Administrative Agent was acting as Administrative Agent and (B) after such resignation or removal for as
long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including (1) prior to the Collateral
Release Date, acting as collateral agent or otherwise holding any collateral security on behalf of any of the Lenders and (2) in
respect of any actions taken in connection with transferring the agency to any successor Administrative Agent.
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(d) Any
resignation by or removal of Bank of America as Administrative Agent pursuant to this Section shall also constitute its
resignation as an L/C Issuer and Swing Line Lender. If Bank of America resigns as an L/C Issuer, it shall retain all the rights,
powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date
of its resignation as an L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make
Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c). If Bank of America
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 Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.05(c). Upon the
appointment by the Company of a successor L/C Issuer or Swing Line Lender hereunder (which successor shall in all cases be a Lender
other than a Defaulting Lender) and the consent thereto by such successor, (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 applicable,
(b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (c) 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 Bank of America
to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
9.07 Non-Reliance
on Administrative Agent, Arrangers, Sustainability Coordinators and Other Lenders. Each Lender and each L/C Issuer expressly
acknowledges that none of the Administrative Agent, any Arranger nor any Sustainability Coordinator has made any representation or
warranty to it, and that no act by the Administrative Agent, any Arranger or any Sustainability Coordinator hereafter taken,
including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof,
shall be deemed to constitute any representation or warranty by the Administrative Agent, any Arranger or any Sustainability
Coordinator to any Lender or any L/C Issuer as to any matter, including whether the Administrative Agent, any Arranger or any
Sustainability Coordinator has disclosed material information in its (or its Related Parties’) possession. Each Lender and
each L/C Issuer represents to the Administrative Agent, each Arranger and each Sustainability Coordinator that it has, independently
and without reliance upon the Administrative Agent, any Arranger, any Sustainability Coordinator, 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 of, appraisal
of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the
Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrowers hereunder. Each Lender and each
L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Arranger, any
Sustainability Coordinator, 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 credit analysis, appraisals and 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, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and each L/C Issuer represents and
warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in
making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or L/C Issuer
for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be
applicable to such Lender or L/C Issuer, and not for the purpose of purchasing, acquiring or holding any other type of financial
instrument, and each Lender and each L/C Issuer agrees not to assert a claim in contravention of the foregoing. Each Lender and each
L/C Issuer represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans
and to provide other facilities set forth herein, as may be applicable to such Lender or such L/C Issuer, and either it, or the
Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other
facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities.
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9.08 No
Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the bookrunners or Arrangers listed on the cover page hereof,
nor any Sustainability Coordinator, 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, an Arranger, a Sustainability Coordinator, a Lender or an L/C Issuer
hereunder.
9.09 Administrative
Agent May File Proofs of Claim; Credit Bidding. 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 any 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 Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts
due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.03(h) and (i), 2.09 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, provisional liquidator, restructuring officer, sequestrator, administrator or other similar official in
any such judicial proceeding is hereby authorized by each Lender and each 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 Issuers,
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 2.09 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 any L/C Issuer
any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer
to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer in any such proceeding.
Prior to the Collateral
Release Date, the holders of the Obligations hereby irrevocably authorize the Administrative Agent, at the direction of the Required
Lenders, to credit bid all or any portion of the Obligations (including accepting some or all of the Collateral in satisfaction of
some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly
or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the
provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar Debtor Relief
Laws in any other jurisdictions to which a Loan Party is subject, (b) at any other sale or foreclosure or acceptance of
collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial
action or otherwise) in accordance with any applicable Law. In connection with any such credit bid and purchase, the Obligations
owed to the holders thereof shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to
contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the
liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the
contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle
or vehicles that are used to consummate such purchase). In connection with any such bid (i) the Administrative Agent shall be
authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the
acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or
vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote
of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions
by the Required Lenders contained in clauses (a)(i) through (a)(x) of Section 10.01 of this
Agreement), and (iii) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire
Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the
acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall
automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any
acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be
cancelled, without the need for any Lender or any acquisition vehicle to take any further action.
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9.10 Collateral
and Guaranty Matters. Without limiting the provisions of Section 9.09, each of the Lenders (including in its capacities
as a party to any Secured Cash Management Agreement and a party to any Secured Swap Contract) and each of the L/C Issuers irrevocably
authorize the Administrative Agent, at its option and in its discretion:
(a) to
release or authorize the release of any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon
the occurrence of the Facility Termination Date, (ii) upon the Collateral Release Date, (iii) that is sold or otherwise disposed
of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder or under
any other Loan Document, or (iv) subject to Section 10.01, if approved, authorized or ratified in writing by the Required
Lenders;
(b) to
subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien
on such property that is permitted by Section 7.01(i);
(c) to
release any Guarantor from its obligations under any Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction
permitted under the Loan Documents;
(d) upon
the Collateral Release Date, to release any Lien granted to or held by the Administrative Agent under any Loan Document on the Equity
Interests of any Unrestricted Subsidiary;
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(e) at
any time the Specified Receivables Purchase Agreement or any Permitted Securitization Transaction is outstanding, release any Lien granted
to or held by the Administrative Agent under any Loan Document on (i) any Securitized Asset that is subject thereto and (ii) the
Equity Interests of any Special Purpose Subsidiary for such Permitted Securitization Transaction;
(f) to
subordinate or release any Lien granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such
property that is permitted by Section 7.01(dd); and
(g) to
enter into and perform each intercreditor agreement or subordination agreement contemplated hereby.
Upon request by the Administrative
Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its
interest in particular types or items of property, or to release any Guarantor (other than, for the avoidance of doubt, any Borrower)
from its obligations under the Guaranty pursuant to this Section 9.10.
The Administrative Agent shall
not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability
of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared
by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure
to monitor or maintain any portion of the Collateral.
9.11 Secured
Cash Management Agreements and Secured Swap Contracts. No Lender or Affiliate thereof party to a Secured Swap Contract or Secured
Cash Management Agreement that obtains the benefit of Section 8.03, any Guaranty or, prior to the Collateral Release Date,
any Collateral by virtue of the provisions hereof or any Collateral Document shall have any right to notice of any action or to consent
to, direct or object to any action hereunder or under any other Loan Document or otherwise (x) prior to the Collateral Release Date,
in respect of the Collateral (including the release or impairment of any Collateral) or (y) to notice of or to consent to any amendment,
waiver or modification of the provisions hereof or of any Guaranty or, prior to the Collateral Release Date, any Collateral Document (including
any release or impairment with respect to any Guarantor) other than in its capacity as a Lender and, in such case, only to the extent
expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Administrative
Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations
arising under Secured Cash Management Agreements and Secured Swap Contracts except to the extent expressly provided herein and unless
the Administrative Agent has received a Secured Party Designation Notice of such Obligations, together with such supporting documentation
as the Administrative Agent may request, from the applicable Lender or Affiliate thereof, as the case may be. The Administrative Agent
shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising
under Secured Cash Management Agreements and Secured Swap Contracts in the case of the date that (a) all Commitments have terminated,
(b) all Obligations arising under the Loan Documents have been paid in full (other than contingent indemnification obligations for
which no claim or demand has yet been made), and (c) all Letters of Credit have terminated or expired (other than Letters of Credit
that have been Cash Collateralized).
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 each Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the
benefit of the Company or any other Loan Party, that at least one of the following is and will be true:
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(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,
(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) 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 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 each other Arranger and their respective Affiliates, and not, for the avoidance
of doubt, to or for the benefit of the Company or any other Loan Party, that none of the Administrative Agent, any Arranger or any of
their respective Affiliates is 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, each Arranger and their respective Affiliates, in each case
under this Agreement, any Loan Document or any documents related hereto or thereto).
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9.13 Spanish
Formalities.
(a) At
the reasonable request of the Administrative Agent, upon a Spanish Guarantor becoming a party to this Agreement, this Agreement shall
be raised to public by means of the execution of a Spanish Public Document by the Spanish Guarantor and the Administrative Agent for the
purposes contemplated in Article 517 et seq. of the Spanish Civil Procedural Act and other related provisions. Such Spanish Public
Document will include an authorization in favor of the Administrative Agent, on behalf of each Secured Party, to determine the amounts
due and payable under this Agreement, in accordance with this Agreement, that may be claimable in any executive proceeding for the purposes
of Articles 571 et seq. of the Spanish Civil Procedural Act.
(b) Each
party hereto hereby expressly authorizes the Administrative Agent, on behalf of the Secured Parties, to request and obtain from the Spanish
notary before whom this Agreement is raised to the status of a Spanish Public Document any further copy of this notarized Agreement. The
relevant Spanish Guarantor shall only bear the cost of the first authorized copy with or without enforcement effects (“primera
copia con o sin fuerza ejecutiva”) of such documents.
9.14 Spanish
Calculations; Executive Enforcement.
(a) The
parties hereto expressly agree that in the event of executive judicial enforcement (“acción ejecutiva”) in Spain,
the amount, solely for such purposes, due and payable (“líquido y exigible”) by the Borrowers to the Lenders
will be the balance reflected in the Register as provided in Section 10.06(c). The parties hereto expressly agree that such
balance shall be considered as an acknowledgement of debt and may be claimed pursuant to the same provisions of the Spanish Civil Code.
(b) The
balances shown in the Register, duly certified by the Administrative Agent, shall be admissible as evidence in any enforcement proceedings
in Spain, and in the absence of manifest error shall provide conclusive evidence (“dar fe”) of the liquid amounts due
and payable by the Borrowers under this Agreement under any such proceedings.
(c) The
Administrative Agent may start executive proceedings by presenting to any relevant Spanish court the following:
(i) an
original notarial first or authentic copy of this Agreement;
(ii) a
notarial document (“acta notarial”) incorporating the certificate of the Administrative Agent referred to in clause
(b) above, evidencing that the determination of the amounts due and payable by each of the Borrowers have been calculated as
agreed in this Agreement and that such amounts coincide with the balance shown in the Register maintained by the Administrative Agent
in connection with this Agreement and the Loan Documents in respect of each of the Borrowers; and
(iii) a
notarial document (“acta notarial”) or a confirmatory fax (“burofax”) evidencing that the Spanish
obligor has been served notice for the amount that is due and payable.
Each Spanish Guarantor hereby
authorizes the Administrative Agent (and each Lender, as appropriate) to request and obtain certificates and documents issued by the
Spanish notary which formalizes this Agreement in order to evidence its compliance with the entries of his registry-book and the
relevant entry date for the purpose of Number 5º of Article 517 of the Spanish Civil Procedural Act, as well as to request
and obtain from the Spanish notary before whom this Agreement has been formalized, any notarial copy of such notarized documents.
The cost of such certificates, documents and copies will be for the account of the relevant Spanish Guarantor. The relevant Spanish
Guarantor shall only bear the cost of the first authorized copy with or without enforcement effects (“primera copia con o
sin fuerza ejecutiva”) of such documents.
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9.15 Recovery
of Erroneous Payments. Without limitation of any other provision in this Agreement, if at any time the Administrative Agent makes
a payment hereunder in error to any Credit Party, whether or not in respect of an Obligation due and owing by any Borrower at such time,
where such payment is a Rescindable Amount, then in any such event, each Credit Party receiving a Rescindable Amount severally agrees
to repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such Credit Party in Same Day Funds in the
currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by 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. Each Credit Party irrevocably waives any and all defenses,
including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid
by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Administrative
Agent shall inform each Credit Party promptly upon determining that any payment made to such Credit Party comprised, in whole or in part,
a Rescindable Amount.
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc.
(a) Except
as otherwise provided in this Section 10.01, no amendment or waiver of any provision of this Agreement or any other Loan Document,
and no consent to any departure by the Company or any other Loan Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Company 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:
(i) except
as provided in Section 4.01, waive any condition set forth in Section 4.01(a) without the written consent
of each Lender;
(ii) 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 whose Commitment is being extended, increased or reinstated (it being understood and agreed that a waiver of any
condition precedent set forth in Section 4.02 or of any Default or of a mandatory reduction in Commitments is not considered
an extension, increase or reinstatement in Commitments of any Lender);
(iii) postpone
any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest,
fees or other amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction of the Aggregate Commitments hereunder
or under any other Loan Document without the written consent of each Lender directly affected thereby;
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(iv) reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (b) of this
Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of
each Lender entitled to receive such amount (it being understood that neither of the following constitutes a reduction in the rate of
interest on any Loan or L/C Borrowing or any fees or other amounts: (A) any amendment to the definition of “Default Rate”
or waiver of any obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default Rate or (B) any amendment to
or waiver of any financial covenant hereunder (or any defined term or component defined term used therein) even if the effect of such
amendment or waiver would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder); provided
that (x) with respect to any MFN Protection for the benefit of the Term B Loan, only the consent of the Lenders holding in the aggregate
more than fifty percent (50%) of the outstanding amount of the Term B Loan shall be necessary to waive the benefit of the MFN Protection
for the Term B Loan and (y) with respect to any MFN Protection for the benefit of any then-outstanding Incremental Tranche B Term
Facility Commitments or Incremental Tranche B Term Loans, only the consent of the Lenders holding in the aggregate more than fifty percent
(50%) of the sum of the unfunded Incremental Tranche B Term Facility Commitments at such time, plus the outstanding Incremental
Tranche B Term Loans shall be necessary to waive the benefit of the MFN Protection for such Incremental Tranche B Term Facility Commitments
or Incremental Tranche B Term Loans;
(v) (A) change
Section 2.07, Section 2.14 or Section 8.03 in a manner that would alter the pro rata sharing
of commitment reductions or payments required thereby without the written consent of each Lender directly affected thereby, (B) subordinate,
or amend or make any other modification having the effect of subordinating, the Obligations to any other Indebtedness or other obligation,
without the written consent of each Lender or (C) except as permitted pursuant to Section 9.10(b) and (f),
subordinate, or amend or make any other modification having the effect of subordinating, the Liens securing the Obligations to Liens securing
any other Indebtedness or other obligations, without the written consent of each Lender;
(vi) change
any provision of this Section 10.01 or the definition of “Required Lenders”, “Required Pro Rata Facilities
Lenders”, “Required Revolving 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;
(vii) release
any Borrower without the consent of each Lender, or, except in connection with a transaction permitted under Section 7.04
or Section 7.05, release all or substantially all of the value of the Guaranty without the written consent of each Lender
whose Obligations are guaranteed thereby, except, in either case, to the extent any such release is permitted pursuant to Section 9.10
(in which case such release may be made by the Administrative Agent acting alone);
(viii) prior
to the Collateral Release Date, release or authorize the release of all or substantially all of the Collateral under the Collateral Documents
without the written consent of each Lender whose Obligations hereunder are secured by such Collateral, it being understood that to the
extent that Collateral comprises assets which are permitted to be sold pursuant to Section 7.05 or released pursuant to Section 9.10,
such Collateral may be released without the consent of any of the Lenders;
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(ix) amend
Section 1.06 without the written consent of each Lender and L/C Issuer obligated to make Credit Extensions in Alternative
Currencies;
(x) change
Section 2.15 in a manner that would alter the requirement that each of the Lenders obligated to make Credit Extensions to
an Applicant Borrower approve the addition thereof as a Designated Borrower, without the written consent of each such Lender;
(xi) prior
to the termination of the Aggregate Revolving Commitments, unless also signed by the Required Revolving Lenders, no such amendment, waiver
or consent shall (A) waive any Default or Event of Default for purposes of Section 4.02(b), (B) amend, change, waive,
discharge or terminate Sections 4.02 or 8.01 in a manner adverse to the Revolving Lenders or (C) amend, change, waive,
discharge or terminate this clause (xi);
(xii) unless
also signed by Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the aggregate Outstanding Amount
of the Term Loans entitled to receive prepayments pursuant to Section 2.06(b), no such amendment, waiver or consent shall
(A) amend, change, waive, discharge or terminate Section 2.06(b)(v) so as to alter the manner of application of
proceeds of any mandatory prepayment required by Section 2.06(b)(ii), (iii), (iv), or (v) (other
than to allow the proceeds of such mandatory prepayments to be applied ratably with other Term Loans under this Agreement) or (B) amend,
change, waive, discharge or terminate this clause (xii) (other than to provide Lenders of other Term Loans with proportional
rights under this clause (xii));
(xiii) unless
in writing and signed by each L/C Issuer in addition to the Lenders required above, no amendment, waiver or consent shall affect the rights
or duties of the L/C Issuers under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it;
(xiv) unless
in writing and signed by the Swing Line Lender in addition to the Lenders required above, no amendment, waiver or consent shall affect
the rights or duties of the Swing Line Lender under this Agreement;
(xv) unless
in writing and signed by the Administrative Agent in addition to the Lenders required above, no amendment, waiver or consent shall affect
the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and
(xvi) unless
in writing and signed by each Sustainability Coordinator in addition to the Lenders required above, no amendment, waiver or consent shall
affect the rights or duties of the Sustainability Coordinators under this Agreement or any other Loan Document.
(b) Notwithstanding
anything to the contrary in this Section 10.01:
(i) any
amendment, waiver or consent with respect to (A) Section 7.11 (or any defined term or component defined term used
therein) or any Default or Event of Default or exercise of remedies by the Required Pro Rata Facilities Lenders in respect or as a
result thereof, (B) the second proviso in Section 8.01(b), (C) clause (a) of Section 8.02
or (D) the parenthetical provisions referencing Section 7.11 in Section 10.03 will not require the
consent of the Required Lenders but shall be effective if, and only if, signed by the Required Pro Rata Facilities Lenders and the
Loan Parties and acknowledged by the Administrative Agent;
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(ii) the
Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto;
(iii) any
amendment, waiver or consent with respect to the definitions of “Alternative Currency Sublimit”, “Canadian Dollar Sublimit”,
“Letter of Credit Sublimit” and “Swing Line Sublimit”, Section 1.06, Section 2.03, Section 2.05
and Section 2.15 will not require the consent of the Required Lenders but shall be effective if, and only if, signed by the
Required Revolving Lenders, the Loan Parties and any party whose consent is required pursuant to clauses (a)(ix), (a)(x),
(a)(xiii), (a)(xiv) or (a)(xv) above and acknowledged by the Administrative Agent;
(iv) only
the written consent of the Administrative Agent and the Loan Parties shall be required to amend this Agreement solely to implement requirements
reasonably deemed necessary by the Administrative Agent to add a Designated Borrower hereunder or, prior to the Collateral Release Date,
to obtain pledges of Equity Interests in Non-U.S. Obligors in accordance with this Agreement (including pursuant to additional Collateral
Documents);
(v) an
Incremental Facility Amendment shall be effective if signed only by Company (and any other applicable Borrower), the Administrative Agent
and each Person that agrees to provide a portion of the applicable Incremental Facility;
(vi) 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 (A) the Commitment of any Defaulting Lender may not be increased or extended
without the consent of such Lender and (B) any waiver, amendment or modification requiring the consent of all Lenders or each affected
Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the
consent of such Defaulting Lender;
(vii) each
Lender is entitled to vote as such Lender sees fit on any bankruptcy or insolvency reorganization plan that affects the Loans, and each
Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions
set forth herein;
(viii) the
Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding and such determination shall be binding on all of the Lenders;
(ix) this
Agreement may be amended with the written consent of only the Company, the Administrative Agent, the L/C Issuers and the Lenders
obligated to make Credit Extensions in Alternative Currencies to amend the definition of “Alternative Currency”,
“Alternative Currency Daily Rate” or “Alternative Currency Term Rate” solely to add additional currency
options and the applicable interest rate with respect thereto, in each case solely to the extent permitted pursuant to Section 1.06;
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(x) only
the written consent of the Administrative Agent and, subject to the applicable provisions of Section 3.07, the Company shall
be required to make amendments contemplated by Section 3.07;
(xi) this
Agreement may be amended and restated in accordance with this Section 10.01 but without the consent of a specific Lender if,
upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated),
the Commitments of such Lender shall have terminated, such Lender shall have no other commitment or other obligation hereunder and shall
have been paid in full all principal, interest and other amounts then owing to it or then accrued for its account under this Agreement;
(xii) only
the written consent of the Administrative Agent and the Company shall be required to amend, modify or supplement this Agreement or any
other Loan Document to cure or correct administrative errors or omissions, any ambiguity, omission, defect or inconsistency or to effect
administrative changes or to extend an existing Lien over additional property, and such amendment shall become effective without any further
consent of any other party to such Loan Document so long as (A) such amendment, modification or supplement does not adversely affect
the rights of any Lender or other holder of Obligations in any material respect and (B) the Lenders shall have received at least
five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business
Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to
such amendment;
(xiii) only
the written consent of the Administrative Agent and the Company shall be required to amend, modify or supplement this Agreement or any
other Loan Document to effect changes reasonably deemed necessary by the Administrative Agent and the Company in connection with the Accounting
Standard Change, and such amendment shall become effective without any further consent of any other party to such Loan Document so long
as (A) such amendment, modification or supplement does not affect the rights of any Lender or other holder of Obligations disproportionately
adversely relative to other affected Lenders or other holders of Obligations and (B) the Lenders shall have received at least five
(5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business
Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to
such amendment;
(xiv) in
connection with an amendment that addresses solely a repricing transaction in which any class of Term Loans is refinanced with a
replacement class of term loans under this Agreement bearing (or is modified in such a manner such that the resulting term loans
bear) a lower “effective yield” (including one or more of upfront fees, interest rate spreads, interest rate benchmark
floors, original issue discount and prepayment premiums, but excluding the effect of any arrangement, structuring, syndication or
other fees payable in connection therewith that are not shared with all lenders or holders of such new or modified term loans) (a
“Permitted Repricing Amendment”), such Permitted Repricing Amendment shall become effective if signed by the Loan
Parties, the Administrative Agent and the Lenders holding term loans subject to such permitted repricing transaction that will
continue as a Lender in respect of the repriced tranche of term loans or modified term loans (without the consent of any other party
to this Agreement or any other Loan Document); and
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(xv) in
order to implement any ESG Amendment, this Agreement and the other Loan Documents may be amended in accordance with Section 2.21.
(c) In
addition, notwithstanding anything to the contrary in this Section 10.01, the Company may, by written notice to the Administrative
Agent from time to time, make one or more offers (each, a “Loan Modification Offer”) to all the Lenders holdings Commitments
and/or Loans of a particular class or tranche to make one or more amendments or modifications to (i) allow the maturity of such Commitments
or Loans of the accepting Lenders to be extended, (ii) modify the Applicable Rate and/or fees payable with respect to such Loans
and Commitments of the accepting Lenders, (iii) modify any covenants or other provisions or add new covenants or provisions that
are agreed between the Company, the Administrative Agent and the Accepting Lenders; provided that such modified or new covenants
and provisions are applicable only during periods after the latest Maturity Date that is in effect on the effective date of such amendment,
and (iv) any other amendment to a Loan Document required to give effect to the amendments described in clauses (i), (ii) and
(iii) of this paragraph (“Permitted Amendments”, and any amendment to this Agreement to implement Permitted
Amendments, a “Loan Modification Agreement”) pursuant to procedures reasonably specified by the Administrative Agent
and reasonably acceptable to the Company. Such notice shall set forth (x) the terms and conditions of the requested Permitted Amendments
and (y) the date on which such Permitted Amendments are requested to become effective. Permitted Amendments shall become effective
only with respect to the applicable class or tranche of Commitments and/or Loans of the Lenders that accept the applicable Loan Modification
Offer (such Lenders, the “Accepting Lenders”) and, in the case of any Accepting Lender, only with respect to such Lender’s
Commitments and/or Loans as to which such Lender’s acceptance has been made. The Company, each other Borrower and each Accepting
Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative
Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof, and the Loan
Parties shall also deliver such resolutions, opinions and other documents as reasonably requested by the Administrative Agent. The Administrative
Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby
agrees that (1) upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but
only to the extent) necessary to reflect the existence and terms of the Permitted Amendments evidenced thereby and only with respect to
the applicable class or tranche of Commitments and Loans of the Accepting Lenders as to which such Lenders’ acceptance has been
made, (2) any applicable Lender who is not an Accepting Lender may be replaced by the Company in accordance with Section 10.13,
and (3) to the extent relating to Revolving Commitments and Revolving Loans, the Administrative Agent and the Company shall be permitted
to make any amendments or modifications to any Loan Documents necessary to allow any borrowings, prepayments, participations in Letters
of Credit and Swing Line Loans and commitment reductions to be ratable across each class of Revolving Commitments the mechanics for which
may be implemented through the applicable Loan Modification Agreement and may include technical changes related to the borrowing and repayment
procedures of the Lenders; provided that with the consent of the Accepting Lenders such prepayments and commitment reductions and
reductions in participations in Letters of Credit and Swing Line Loans may be applied on a non-ratable basis to the class of non-Accepting
Lenders.
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(d) In
addition, notwithstanding anything to the contrary in this Section 10.01, this Agreement and any other Loan Document may be
amended with only the consent of the Company and the Administrative Agent solely to the extent necessary to incorporate jurisdiction-specific
provisions deemed reasonably necessary or appropriate by the Company, the Administrative Agent and their respective legal counsel in connection
with the joinder of any Subsidiary as a Guarantor in accordance with the terms of Section 6.14 and, prior to the Collateral
Release Date, the granting of security interests by such Subsidiary in accordance with the terms of Section 6.15.
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 clause (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows, 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 Company or any other Loan Party, the Administrative Agent, an L/C Issuer or the Swing Line Lender, to the address, facsimile 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, facsimile 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 Company).
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 facsimile shall be deemed to have been given when sent (except that, if not given during normal
business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient).
Notices and other communications delivered through electronic communications to the extent provided in clause (b) below, shall
be effective as provided in such clause (b).
(b) Electronic
Communications. Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic
communication (including email, FpML messaging, and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices to any Lender or any L/C Issuer pursuant to Article II
if such Lender or such 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, the Swing Line Lender, any L/C Issuer or the Company may each,
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 email 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 email or other written acknowledgement), 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 email
address as described in the foregoing clause (i) of notification that such notice or communication is available and
identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice,
email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication
shall be deemed to have been sent at the opening of business on the next business day for the recipient.
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(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 any Borrower, any Lender, any 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 Company’s, any Loan Party’s or the Administrative Agent’s transmission of Borrower Materials or notices through
the platform, any other electronic platform or electronic messaging service, or through the Internet, except to the extent such losses,
claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence, bad faith or willful misconduct of such Agent Party; provided that in no event shall any Agent
Party have any liability to any Borrower or any Subsidiary, any Lender, any L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).
(d) Change
of Address, Etc. Each of the Borrowers, the Administrative Agent, each L/C Issuer and the Swing Line Lender may change its address,
facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender
may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Company, the Administrative
Agent, the L/C Issuers 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, facsimile 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
Canadian federal and provincial securities laws and 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 Company or its securities for purposes of Canadian federal and provincial securities laws or United States
federal or state securities laws.
(e) Reliance
by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to
rely and act upon any notices (including telephonic notices, Loan Notices, Letter of Credit Applications and Swing Line Loan
Notices) purportedly given by or on behalf of any Loan Party 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 Company shall indemnify the Administrative Agent,
each 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 any Loan Party, except to the extent that such
losses, costs, expenses or liabilities are determined by a court of competent jurisdiction in a final and non-appealable judgment to
have resulted from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement or any other Loan
Document by, the Administrative Agent, such L/C Issuer or such Lender, or, in each case, any of its Related Parties, or, such
Related Party, as applicable. 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.
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10.03 No Waiver; Cumulative
Remedies; Enforcement. No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder or under any other Loan Document 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, and provided under each other
Loan Document, 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 all the L/C Issuers (or in its own name as creditor of Parallel Debt, as applicable); 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) any 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 (or, in the case of any Event of
Default arising from a breach of Section 7.11, the Required Pro Rata Facilities Lenders shall have the rights otherwise
ascribed to the Administrative Agent pursuant to Section 8.02 with respect to the Aggregate Revolving Commitments, the
Term A Loan, the Incremental Tranche A Term Loans and the Obligations in respect thereof) 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 (or, in the case of any Event of Default arising from a breach of Section 7.11, any Lender with a
Revolving Commitment, Revolving Credit Exposure, portion of the Term A Loan or Incremental Tranche A Term Loan may, with the consent
of the Required Pro Rata Facilities Lenders, enforce any rights and remedies available to it with respect to the Aggregate Revolving
Commitments, the Term A Loan, the Incremental Tranche A Term Loans and the Obligations in respect thereof and as authorized by the
Required Pro Rata Facilities Lenders).
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10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs
and Expenses. The Company shall pay (i) all reasonable and documented out-of-pocket fees and expenses incurred by the Administrative
Agent, BofA Securities, in its capacity as a Sustainability Coordinator, each Arranger, each L/C Issuer and their respective Affiliates
(but limited, in the case of legal fees and expenses, to the reasonable and documented and invoiced fees and expenses of one firm of Canadian
counsel and one firm of U.S. counsel to the Administrative Agent, the Sustainability Coordinators, the Arrangers, the L/C Issuers and
their respective Affiliates, taken as a whole, and, if necessary, one firm of regulatory counsel and one firm of local counsel in each
applicable jurisdiction (which may be a single firm for multiple jurisdictions) to all such Persons, taken as a whole (and except allocated
costs of in-house counsel) (and, in the case of an actual or perceived conflict of interest between or among such Persons, of another
firm of Canadian counsel, another firm of U.S. counsel, another firm of regulatory counsel and another firm of local counsel in each applicable
jurisdiction for all such affected Persons taken as a whole, repeated until no such actual or perceived conflict exists among such Persons
taken as a whole)), 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 each 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 out-of-pocket expenses incurred by the Administrative Agent, any Lender or any L/C Issuer (but
limited, in the case of legal fees and expenses, to the reasonable and documented and invoiced fees and expenses of one firm of Canadian
counsel and one firm of U.S. counsel to the Administrative Agent, the Arrangers, the Lenders, the L/C Issuers and their respective Affiliates,
taken as a whole, and, if necessary, one firm of regulatory counsel and one firm of local counsel in each applicable jurisdiction (which
may be a single firm for multiple jurisdictions) to all such Persons, taken as a whole (and except allocated costs of in-house counsel)
(and, in the case of an actual or perceived conflict of interest between or among such Persons, of another firm of Canadian counsel, another
firm of U.S. counsel, another firm of regulatory counsel and another firm of local counsel in each applicable jurisdiction for all such
affected Persons taken as a whole, repeated until no such actual or perceived conflict exists among such Persons taken as a whole)) 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 Company. The Company shall indemnify the Administrative Agent (and any agent, sub-agent, co-agent, attorney or co-trustee
thereof or delegate, administrator, receiver or administrative receiver appointed by the Administrative Agent pursuant to the terms
of the Loan Documents), each Arranger, each Sustainability Coordinator, each Lender and each 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 reasonable, documented and invoiced out-of-pocket
expenses (limited, in the case of legal fees and expenses, to one firm of Canadian counsel and one firm of U.S. counsel for all
Indemnitees taken as a whole and, if necessary, one firm of regulatory counsel and one firm of local counsel in each applicable
jurisdiction (which may be a single firm for multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an
actual or perceived conflict of interest, of another firm of Canadian counsel, another firm of U.S. counsel, another firm of
regulatory counsel and another firm of local counsel in each applicable jurisdiction for all such affected Indemnitees taken as a
whole) (in each case, excluding allocated costs of in-house counsel)), incurred by any Indemnitee or asserted or awarded against any
Indemnitee by any Person (including the Company or any other Loan Party) other than such Indemnitee and its Related Parties 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 (including, without limitation, the Indemnitee’s reliance on any
Communication executed using an Electronic Signature, or in the form of an Electronic Record), 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 an 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 a Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to a Loan Party 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 Company 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 reasonable, documented and invoiced
out-of-pocket expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from (a) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Specified
Parties or (b) a material breach of such Indemnitee’s obligations (or any of its Related Specified Parties’
obligations) hereunder or under any other Loan Document, (y) arise solely out of, or result from, a claim, litigation,
investigation or proceeding brought by one Indemnitee against another Indemnitee except to the extent such claim (1) involves
any action or inaction by the Company or any Subsidiary or (2) relates to any action or inaction of such Indemnitee in its
capacity as Administrative Agent (or any sub-agent thereof), Arranger or similar title (including, without limitation, arranger,
bookrunner, syndication agent and documentation agent) or Sustainability Coordinator, or (z) relates to any settlement entered
into by such Indemnitee without the Company’s written consent (such consent not to be unreasonably withheld or delayed); provided
that if such settlement is reached with the Company’s written consent, or if there is a final and non-appealable judgment by a
court of competent jurisdiction in any related proceeding, the Company agrees to indemnify and hold harmless each Indemnitee in the
manner and to the extent set forth above; provided, further that the Company shall be deemed to have consented to any
such settlement unless the Company shall object thereto by written notice to the applicable Indemnitee within ten (10) Business
Days after having received notice thereof. Without limiting the provisions of Section 3.01(c), this Section 10.04(b) shall
not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax
claim.
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(c) Reimbursement
by Lenders. To the extent that the Company for any reason fails to indefeasibly pay any amount required under clauses
(a) or (b) of this Section 10.04 to be paid by it to the Administrative Agent (or any sub-agent
thereof), any L/C Issuer, the Swing Line Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to
the Administrative Agent (or any such sub-agent), such L/C Issuer, the Swing Line Lender 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 based on each Lender’s share of the Total Credit Exposure at such time) of such unpaid amount (including any such
unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such
Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is
sought); provided further 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 such L/C Issuer or the
Swing Line Lender 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), such L/C Issuer or the Swing Line Lender in connection with such capacity. The obligations of the Lenders
under this clause (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, no party hereto shall assert, and each party hereto
hereby waives, and acknowledges that no other Person shall have, any claim against any party hereto, 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; provided that nothing contained in this clause (d) shall
limit the Company’s indemnification obligations set forth above to the extent such special, indirect, consequential or punitive
damages are included in any third party claim in connection with which such Indemnitee is entitled to indemnification hereunder. No Indemnitee
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, bad faith 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 (10) Business Days after demand therefor.
(f) Survival.
The agreements in this Section and the indemnity provisions of Section 10.02(e) shall survive the resignation of
the Administrative Agent, an L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Aggregate Commitments,
the repayment, satisfaction or discharge of all the other Obligations and the Facility Termination Date.
10.05 Payments Set
Aside. To the extent that any payment by or on behalf of any Loan Party is made to the Administrative Agent, any L/C Issuer or
any Lender, or the Administrative Agent, any 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, such L/C Issuer or such Lender in its
discretion) to be repaid to a trustee, receiver, administrator 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 each 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 applicable Overnight Rate
from time to time in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders and the L/C
Issuers 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 Company 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 (other than to the extent expressly permitted under Section 2.16(k)(ii) or,
in the case of the Company or any other Loan Party, Section 7.04) except (i) to an assignee in accordance with the provisions
of clause (b) of this Section 10.06, (ii) by way of participation in accordance with the provisions of clause
(d) of this Section 10.06, or (iii) by way of pledge or assignment of a security interest subject to the restrictions
of clause (f) of this Section 10.06, (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 clause (d) of this
Section 10.06 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the
L/C Issuers 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 clause (b), participations in L/C Obligations
and in Swing Line Loans) at the time owing to it); provided that (in each case with respect to any credit facility hereunder) 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 (in each case with respect to any credit facility provided hereunder) or contemporaneous assignments to related Approved Funds (determined
after giving effect to such Assignments) that equal at least the amount specified in clause (b)(i)(B) of this Section 10.06
in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be
assigned; and
(B) in
any case not described in clause (b)(i)(A) of this Section 10.06, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) or, if the applicable 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 in the case of any assignment in respect
of the Revolving Facility, or $1,000,000, in the case of any assignment in respect of the Term Facility unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such
consent not to be unreasonably withheld or delayed).
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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 (A) apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans or (B) prohibit any Lender
from assigning all or a portion of its rights and obligations among the revolving credit facility or term loan facility provided hereunder
on a non-pro rata basis;
(iii) Required
Consents. No consent shall be required for any assignment except to the extent required by clause (b)(i)(B) of this Section 10.06
and, in addition:
(A) the
consent of the Company (such consent not to be unreasonably withheld or delayed) 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 Company shall be deemed to have consented to any such assignment unless it shall object thereto
by written notice to the Administrative Agent within seven (7) Business Days after having received written notice thereof;
(B) the
consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect
of (1) any unfunded commitment to a term loan facility provided hereunder or any Revolving Commitment if such assignment is to a
Person that is not a Lender with a Commitment in respect of the applicable credit facility subject to such assignment, an Affiliate of
such Lender or an Approved Fund with respect to such Lender or (2) any Term Facility to a Person that is not a Lender, an Affiliate
of a Lender or an Approved Fund;
(C) the
consent of each 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 in respect
of Revolving Loans and Revolving Commitments.
(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.
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(v) Spanish
Public Deed. The parties to each assignment shall, at the request of the Administrative Agent, promptly raise the duly completed Assignment
and Assumption to the status of a Spanish Public Document in the form of “escritura pública” in which the new
Lender will appoint the Administrative Agent as its Administrative Agent and representative pursuant to the terms of Article IX
and any other terms relating to the rights, powers and duties of the Administrative Agent hereunder, including with respect to the release
of the Administrative Agent, to the extent legally possible, from any restriction related to conflict of interest, representing multiple
parties (“multirepresentación”) and self-dealing (“autocontratación”). This obligation
shall not affect the Company or any of the Company’s Affiliates or Subsidiaries and any costs resulting from raising the Assignment
and Assumption to the status of a Spanish Public Document in the form of “escritura pública” shall not be borne
by the Company or any of the Company’s Affiliates or Subsidiaries. Prior to the Collateral Release Date, in relation to the assignment
or transfer of any security interest granted pursuant to a Collateral Document governed by Spanish law or any guarantee granted by a Spanish
Guarantor under Article XI or any other Loan Document, the security created under, together with all rights and remedies arising
under, such Collateral Document governed by Spanish law shall be deemed to have been automatically transferred to the new Lender and maintained
in full force and effect, in accordance with Article 1,528 of the Spanish Civil Code and for the purposes of Article 1,204 of
the Spanish Civil Code.
(vi) No
Assignment to Certain Persons. No such assignment shall be made (A) to the Company or any of the Company’s Affiliates or
Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries or to any Disqualified Institution, or to 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 (or to a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person).
(vii) No
Assignment Resulting in Additional Indemnified Taxes, etc. Without the written consent of the Company, no such assignment shall
be made to any Person that, on the effective date of such assignment, through its Lending Offices, (A) is not capable of lending
to the Borrowers without the imposition of any additional Taxes or Mandatory Costs that would require indemnification payments by any
of the Borrowers under this Agreement or (B) is not capable of lending in the Alternative Currencies or at the applicable interest
rates.
(viii) 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 Company 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, any L/C Issuer 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.
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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 clause (c) of this Section 10.06, 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;
provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will
constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon
request, each 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 clause (d) of this Section 10.06.
(c) Register.
The Administrative Agent, acting solely for this purpose as an agent of the Borrowers (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 (or the equivalent
thereof in electronic form) 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 Borrowers,
the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as
a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers 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, any Borrower or the Administrative Agent, sell participations to any
Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit
of a natural Person, a Defaulting Lender or the Company or any of the Company’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 Borrowers, the Administrative Agent, the Lenders
and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.04(c) without
regard to the existence of any participation.
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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 Sections 10.01(a)(i) through Section 10.01(a)(x) that directly affects such Participant. Subject
to clause (e) of this Section 10.06, each 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 clause (b) of this Section 10.06 (it being understood that the documentation required under Section 3.01(e) shall
be delivered to the Lender who sells the participation); provided that such Participant (A) agrees to be subject to the provisions
of Sections 3.06 and 10.13 as if it were an assignee under clause (b) of this Section 10.06 and
(B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation,
than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement
to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each
Lender that sells a participation agrees, at the Company’s request and expense, to use reasonable efforts to cooperate with the
Company to effectuate the provisions of Section 3.06 with respect to any Participant. 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 that such
Participant agrees to be subject to Section 2.14 as though it were a Lender. Each Lender that sells a participation shall,
acting solely for this purpose as a non-fiduciary agent of the Company, 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 United States Treasury Regulations. The entries in the Participant Register shall be conclusive
absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such
participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative
Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) Limitation
on 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, except to the
extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable
participation. Each Lender that sells a participation agrees, at the Company’s request and expense, to use reasonable efforts to
cooperate with the Company to effectuate the provisions of Section 3.06(b) with respect to any Participant. A Participant
that would be a Non-U.S. Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Company
is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, 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 without requiring any additional formalities not
required pursuant to this Section 10.06 (including, without limitation, any notification to the Loan Parties of the
relevant transfer or assignment, or the execution of any transfer or assignment document, in each case, as a Spanish Public Document
or the notarization of the relevant document in any other country), 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.
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(g) Resignation
as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time any
Lender acting as an L/C Issuer or Swing Line Lender assigns all of its Revolving Commitment and Revolving Loans pursuant to clause
(b) above, such L/C Issuer or Swing Line Lender may, (i) upon thirty (30) days’ prior written notice to the Company
and the Lenders, resign as an L/C Issuer and/or (ii) upon thirty (30) days’ prior written notice to the Company, resign as
Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Company 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 Company
to appoint any such successor shall affect the resignation of such lender as L/C Issuer or Swing Line Lender, as the case may be. If any
Lender resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of an 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 Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).
If any Lender 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 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 and the consent thereto by such successor, (1) 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 (2) the successor L/C Issuer shall issue letters of credit in substitution for the applicable Letters of Credit,
if any, outstanding at the time of such succession or make other arrangements satisfactory to such resigning L/C Issuer to effectively
assume the obligations of such resigning L/C Issuer with respect to such Letters of Credit.
(h) Disqualified
Institutions.
(i) Notwithstanding
anything to the contrary set forth in this Section 10.06, no assignment or, to the extent the DQ List has been posted on the
Platform for all Lenders, participation shall be made to any Person that was a Disqualified Institution as of the date (the “Trade
Date”) on which the applicable Lender entered into a binding agreement to sell and assign or participate all or a portion of
its rights and obligations under this Agreement to such Person (unless the Company has consented to such assignment as otherwise contemplated
by this Section 10.06, in which case such Person will not be considered a Disqualified Institution for the purpose of such
assignment or participation). For the avoidance of doubt, with respect to any assignee or participant that becomes a Disqualified Institution
after the applicable Trade Date (including as a result of the delivery of a notice pursuant to, and/or the expiration of the notice period
referred to in, the definition of “Disqualified Institution”), such assignee shall not retroactively be considered a Disqualified
Institution. Any assignment in violation of this clause (h)(i) shall not be void, but the other provisions of this clause
(g) shall apply.
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(ii) If
any assignment or participation is made to any Disqualified Institution without the Company’s prior consent in violation of clause
(i) above, the Company may, at its sole expense and effort, upon notice to the applicable Disqualified Institution and the Administrative
Agent, (A) terminate any Revolving Commitment of such Disqualified Institution and repay (or cause the other Borrowers to repay)
all obligations of the Borrowers owing to such Disqualified Institution in connection with such Revolving Commitment, (B) in the
case of outstanding Term Loans held by Disqualified Institutions, prepay such Term Loan by paying the lesser of (x) the principal
amount thereof and (y) the amount that such Disqualified Institution paid to acquire such Term Loans, in each case plus accrued
interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and under the other Loan Documents
and/or (C) require such Disqualified Institution to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in this Section 10.06), all of its interest, rights and obligations under this Agreement and related
Loan Documents to an Eligible Assignee that shall assume such obligations at the lesser of (x) the principal amount thereof and (y) the
amount that such Disqualified Institution paid to acquire such interests, rights and obligations, in each case plus accrued interest,
accrued fees and all other amounts (other than principal amounts) payable to it hereunder and other the other Loan Documents; provided
that (i) the Company or the assigning Disqualified Institution shall have paid to the Administrative Agent the assignment fee (if
any) specified in Section 10.06(b), (ii) such assignment does not conflict with applicable Laws and (iii) in the
case of clause (B), the Borrowers shall not use the proceeds from any Loans to prepay Term Loans held by Disqualified Institutions.
(iii) Notwithstanding
anything to the contrary contained in this Agreement, Disqualified Institutions (A) will not (x) have the right to receive information,
reports or other materials provided to Lenders by the Company, the Administrative Agent or any other Lender, (y) attend or participate
in meetings attended by the Lenders and the Administrative Agent, or (z) access any electronic site established for the Lenders or
confidential communications from counsel to or financial advisors of the Administrative Agent or the Lenders and (B) (x) for
purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the
Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Loan
Document, each Disqualified Institution will be deemed to have consented in the same proportion as the Lenders that are not Disqualified
Institutions consented to such matter, and (y) for purposes of voting on any plan of reorganization or plan of liquidation pursuant
to any Debtor Relief Laws (“Plan of Reorganization”), each Disqualified Institution party hereto hereby agrees (1) not
to vote on such Plan of Reorganization, (2) if such Disqualified Institution does vote on such Plan of Reorganization notwithstanding
the restriction in the foregoing clause (1), such vote will be deemed not to be in good faith and shall be “designated”
pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws), and such vote
shall not be counted in determining whether the applicable class has accepted or rejected such Plan of Reorganization in accordance with
Section 1126(c) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and (3) not to contest
any request by any party for a determination by any applicable court of competent jurisdiction effectuating the foregoing clause (2).
(iv) The
Administrative Agent shall have the right, and the Company hereby expressly authorizes the Administrative Agent, to provide the list
of Disqualified Institutions provided by the Company and any updates thereto from time to time (collectively, the “DQ
List”) to each Lender requesting the same.
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10.07 Treatment of
Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and the L/C Issuers agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates, its
auditors and its and its Affiliates’ respective Related Parties (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 required or requested by any regulatory authority purporting to have jurisdiction over such Person or its
Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), in which
case the Administrative Agent, such Lender or such L/C Issuer shall (i) except with respect to any audit or examination
conducted by accountants or any governmental, regulatory, or self-regulatory authority exercising examination or regulatory
authority, to the extent practicable and permitted by Law, notify the Company promptly in advance thereof and (ii) use
commercially reasonable efforts to ensure that any such Information disclosed is accorded confidential treatment, (c) to the
extent required by applicable laws or regulations, by any compulsory legal process or pursuant to the order of any court or
administrative agency in any pending legal, judicial or administrative proceeding, in which case the Administrative Agent, such
Lender or such L/C Issuer shall (i) notify the Company of the proposed disclosure in advance to the extent not prohibited by
Law, compulsory legal process or the applicable administrative agency; provided if the Administrative Agent, such Lender or
such L/C Issuer is unable to notify the Company in advance of such disclosure, such notice shall be delivered promptly thereafter to
the extent practicable and permitted by Law and (ii) use commercially reasonable efforts to ensure that any such Information
disclosed is accorded confidential treatment, (d) to any other party hereto; provided that no material non-public
information with respect to the Company or its Affiliates, or the respective securities of any of the foregoing, may be disclosed to
any Public Lender, (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 (it being understood and
agreed that any “click through” confidentiality agreement used on SyndTrak is acceptable to the parties hereto for
purposes of satisfying the requirements of the exception contemplated in this clause (f)), to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or any
Eligible Assignee invited to be a Lender pursuant to Section 2.16 or (ii) any actual or prospective party (or its
Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to any of the
Borrowers and their obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating
agency in connection with rating the Company or its Subsidiaries or the credit facilities provided hereunder, (ii) the CUSIP
Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers
with respect to the credit facilities provided hereunder or (iii) any insurance broker or provider of credit insurance to such
Person, (h) with the prior written consent of the Company, 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, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Company; provided
that in no event shall any disclosure of Information be made to any Disqualified Institution. In addition, the Administrative Agent
and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar
service providers to the lending industry and service providers to the Administrative Agent and the Lenders in connection with the
administration of this Agreement, the other Loan Documents, and the Commitments.
For purposes of this
Section, “Information” means all information received from the Company or any Subsidiary relating to the Company or any
Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any
Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by the Company or any Subsidiary. 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. For the avoidance of doubt, nothing herein prohibits any individual from
communicating or disclosing information regarding suspected violations of laws, rules, or regulations to a governmental, regulatory,
or self-regulatory authority without any notification to any Person.
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Each of the Administrative
Agent, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning
the Company 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 Canadian federal
and provincial securities laws and United States federal and state securities Laws.
10.08 Right of Setoff.
If an Event of Default shall have occurred and be continuing, each Lender, each 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, such L/C Issuer or any such Affiliate to or for the credit or the account of the
Company or any other Loan Party against any and all of the obligations of the Company or such Loan Party now or hereafter existing under
this Agreement or any other Loan Document to such Lender or such L/C Issuer or their respective Affiliates, irrespective of whether or
not such Lender, L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such
obligations of the Company or such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender
or such L/C Issuer different from the branch, office or Affiliate 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, the L/C Issuers 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, each L/C Issuer and their respective Affiliates under this Section 10.08 are in addition to other rights and
remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have. Each Lender and
each L/C Issuer agrees to notify the Company 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 (including, without
limitation, the Criminal Code (Canada)) (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 Company. 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.
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10.10 Integration; Effectiveness.
This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent
or any L/C Issuer, 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, and thereafter shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
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 (other than contingent indemnification obligations for which no claim or demand has been made) 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 applicable 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 the Company is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any Lender is a Defaulting
Lender or a Non-Consenting Lender, then the Company 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 (other than its existing rights to payments pursuant
to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
(a) the
Company shall have paid (or caused a Designated Borrower to pay) to the Administrative Agent the assignment fee (if any) specified in
Section 10.06(b);
(b) 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
and, if applicable, under Section 2.05(d)) from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Company or applicable Designated Borrower (in the case of all other amounts, including any amounts payable
under Section 2.05(d));
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(c) 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;
(d) such
assignment does not conflict with applicable Laws; and
(e) in
the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the
applicable amendment, waiver or consent; 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 and Swing Line Loans pursuant to this Section 10.13
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 Company 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 (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) 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 IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAWS, BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).
(b) SUBMISSION
TO JURISDICTION. THE COMPANY 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, ANY 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 ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE COMPANY OR ANY OTHER LOAN PARTY OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
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(c) WAIVER
OF VENUE. THE COMPANY AND EACH OTHER LOAN PARTY 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 Service of
Process on the Designated Borrowers. Each Designated Borrower hereby irrevocably designates, appoints and empowers the Company,
and successors as the designee, appointee and agent of such Designated Borrower to receive, accept and acknowledge, for and on
behalf of such Designated Borrower and its properties, service of any and all legal process, summons, notices and documents which
may be served in such action, suit or proceeding relating to this Agreement or the Loan Documents in the case of the courts of the
Southern District of New York or of the courts of the State of New York sitting in the city of New York, which service may be made
on any such designee, appointee and agent in accordance with legal procedures prescribed for such courts. Each Designated Borrower
agrees to take any and all action necessary to continue such designation in full force and effect and should such designee,
appointee and agent become unavailable for this purpose for any reason, such Designated Borrower will forthwith irrevocably
designate a new designee, appointee and agent, which shall irrevocably agree to act as such, with the powers and for purposes
specified in this Section 10.15. Each Designated Borrower further irrevocably consents and agrees to service of any and
all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding relating
to this Agreement or the other Loan Documents delivered to such Designated Borrower in accordance with this Section 10.15
or to its then designee, appointee or agent for service. If service is made upon such designee, appointee and agent, a copy of such
process, summons, notice or document shall also be provided to the applicable Designated Borrower at the address specified in Section 10.02
by registered or certified mail, or overnight express air courier; provided that failure of such holder to provide such copy to such
Designated Borrower shall not impair or affect in any way the validity of such service or any judgment rendered in such action or
proceedings. Each Designated Borrower agrees that service upon such Designated Borrower or any such designee, appointee and agent as
provided for herein shall constitute valid and effective personal service upon such Designated Borrower with respect to matters
contemplated in this Section 10.15 and that the failure of any such designee, appointee and agent to give any notice of
such service to such Designated Borrower shall not impair or affect in any way the validity of such service or any judgment rendered
in any action or proceeding based thereon. Nothing herein shall, or shall be construed so as to, limit the right of the
Administrative Agent or the Lenders to bring actions, suits or proceedings with respect to the obligations and liabilities of each
Designated Borrower under, or any other matter arising out of or in connection with, this Agreement, or for recognition or
enforcement of any judgment rendered in any such action, suit or proceeding, in the courts of whatever jurisdiction in which the
respective offices of the Administrative Agent or the Lenders may be located or assets of such Designated Borrower may be found or
as otherwise shall to the Administrative Agent or the Lenders seem appropriate, or to affect the right to service of process in any
jurisdiction in any other manner permitted by law.
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10.16 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.
10.17 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 Company 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, the Arrangers, the Sustainability Coordinators and
the Lenders are arm’s-length commercial transactions between the Company, each other Loan Party and their respective
Affiliates, on the one hand, and the Administrative Agent, the Arrangers, the Sustainability Coordinators and the Lenders, on the
other hand, (B) each of the Company 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 Company 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, the Arrangers, the Sustainability Coordinators and the Lenders 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 Company, any other Loan Party or any of their respective Affiliates, or any
other Person and (B) neither the Administrative Agent, any of the Arrangers, any of the Sustainability Coordinators nor any
Lender has any obligation to the Company, 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, the Arrangers, the Sustainability Coordinators, the Lenders and their respective Affiliates may
be engaged in a broad range of transactions that involve interests that differ from those of the Company, the other Loan Parties and
their respective Affiliates, and neither the Administrative Agent, any of the Arrangers, any of the Sustainability Coordinators nor
any Lender has any obligation to disclose any of such interests to the Company, any other Loan Party or any of their respective
Affiliates. To the fullest extent permitted by law, each of the Company and each other Loan Party hereby waives and releases any
claims that it may have against the Administrative Agent, the Arrangers, the Sustainability Coordinators or any Lender 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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10.18 Electronic Execution; Electronic Records; Counterparts.
(a) This
Agreement, any Loan Document and any other Communication, including Communications required to be in writing, may be in the form of an
Electronic Record and may be executed using Electronic Signatures. Each Loan Party, the Administrative Agent and each Credit Party agrees
that any Electronic Signature on or associated with any Communication shall be valid and binding on such Person to the same extent as
a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and binding
obligation of such Person enforceable against such Person in accordance with the terms thereof to the same extent as if a manually executed
original signature was delivered. Any Communication may be executed in as many counterparts as necessary or convenient, including both
paper and electronic counterparts, but all such counterparts are one and the same Communication. For the avoidance of doubt, the authorization
under this paragraph may include, without limitation, use or acceptance of a manually signed paper Communication which has been converted
into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission,
delivery and/or retention. The Administrative Agent and each Credit Party may, at its option, create one or more copies of any Communication
in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course
of such Person’s business, and destroy the original paper document. All Communications in the form of an Electronic Record, including
an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability
as a paper record. Notwithstanding anything contained herein to the contrary, neither the Administrative Agent, nor any L/C Issuer, nor
the Swing Line Lender is under any obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to
by such Person pursuant to procedures approved by it; provided that, without limiting the foregoing, (i) to the extent the
Administrative Agent, any L/C Issuer and/or the Swing Line Lender has agreed to accept such Electronic Signature, the Administrative Agent
and each of the Credit Parties shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of any Loan
Party and/or any Credit Party without further verification and regardless of the appearance or form of such Electronic Signature, and
(ii) upon the request of the Administrative Agent or any Credit Party, any Communication executed using an Electronic Signature shall
be promptly followed by a manually executed counterpart.
(b) Neither
the Administrative Agent, nor any L/C Issuer, nor the Swing Line Lender shall be responsible for or have any duty to ascertain or inquire
into the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or
document (including, for the avoidance of doubt, in connection with the Administrative Agent’s, such L/C Issuer’s or the Swing
Line Lender’s reliance on any Electronic
Signature transmitted by telecopy,
emailed .pdf or any other electronic means). The Administrative Agent, each L/C Issuer and the Swing Line Lender shall be
entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Loan Document by acting upon,
any Communication or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or
otherwise authenticated (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the
maker thereof), except to the extent that such liabilities are determined by a court of competent jurisdiction in a final and
non-appealable judgment to have resulted from the gross negligence or willful misconduct of the Administrative Agent, such L/C
Issuer or the Swing Line Lender, or, in each case, any of its Related Specified Parties, or, such Related Specified Party, as
applicable.
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(c) Each
Loan Party, the Administrative Agent and each Credit Party hereby waives (i) any argument, defense or right to contest the legal
effect, validity or enforceability of this Agreement or any other Loan Document based solely on the lack of paper original copies of this
Agreement and/or such other Loan Document, and (ii) any claim against the Administrative Agent, each Credit Party and each Related
Party thereof for any liabilities arising solely from the Administrative Agent’s and/or any Credit Party’s reliance on or
use of Electronic Signatures, including any liabilities arising as a result of the failure of the Loan Parties to use any available security
measures in connection with the execution, delivery or transmission of any Electronic Signature, except to the extent that such liabilities
are determined by a court of competent jurisdiction in a final and non-appealable judgment to have resulted from the gross negligence
or willful misconduct of the Administrative Agent, such Credit Party, or, in each case, any of its Related Specified Parties, or, such
Related Specified Party, as applicable.
(d) Each
of the parties hereto represents and warrants to the other parties that it has the corporate or other applicable capacity and authority
to execute this Agreement and any other Communication through electronic means and there are no restrictions on doing so in that party’s
constitutive documents.
10.19 USA PATRIOT Act and
Canadian AML Acts. Each Lender that is subject to the PATRIOT Act (as hereinafter defined) or any Canadian AML Act and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies the other Loan Parties that pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT Act”) and the Canadian
AML Acts, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name
and address of each Loan Party, information concerning its direct and indirect holders of Equity Interests and other Persons exercising
Control over it, and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Loan Party
in accordance with the PATRIOT Act and the Canadian AML Acts. Each Loan Party 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 PATRIOT Act and the Canadian AML Acts.
10.20 Judgment
Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other
Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding
that on which final judgment is given. The obligation of each Loan Party in respect of any such sum due from it to the
Administrative Agent or any Lender hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency
(the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business
Day following receipt by the Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in the
Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the
sum originally due to the Administrative Agent or any Lender from any Loan Party in the Agreement Currency, such Loan Party agrees,
as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the case
may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the
Administrative Agent or any Lender in such currency, the Administrative Agent or such Lender, as the case may be, agrees to return
the amount of any excess to such Loan Party (or to any other Person who may be entitled thereto under applicable law).
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10.21 Acknowledgement and
Consent to Bail-In of Affected Financial Institutions. Solely to the extent any Person is an Affected Financial Institution and 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 Person that is an Affected Financial Institution arising
under any Loan Document may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents
to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any Person that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document;
or
(iii) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution
Authority.
10.22 Appointment of Company
as Agent. Each Loan Party hereby appoints the Company to act as its agent for all purposes of this Agreement, the other Loan Documents
and all other documents and electronic platforms entered into in connection herewith and agrees that (a) the Company may execute
such documents and provide such authorizations on behalf of such Loan Party as the Company deems appropriate in its sole discretion and
each Loan Party shall be obligated by all of the terms of any such document and/or authorization executed on its behalf, (b) any
notice or communication delivered by the Administrative Agent, an L/C Issuer or a Lender to the Company shall be deemed delivered to each
Loan Party and (c) the Administrative Agent, the L/C Issuers or the Lenders may accept, and be permitted to rely on, any document,
authorization, instrument or agreement executed by the Company on behalf of each of the Loan Parties. Each Loan Party hereby releases
the Company, to the extent legally possible, from any restrictions related to conflict of interest, representing multiple parties (“multirepresentación”)
and self-dealing (“autocontratación”).
10.23 Acknowledgement
Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any
Swap Contract 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
Regime”) 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.
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(b) As
used in this Section 10.23, 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.
“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).
10.24 Parallel Debt (Covenant to Pay the Administrative
Agent).
(a) Each
Loan Party, by way of an independent payment obligation (such payment obligation of such Loan Party to the Administrative Agent, its “Parallel
Debt”), hereby irrevocably and unconditionally undertakes to pay to the Administrative Agent, as creditor in its own right and
not as agent or representative of any other Secured Party or any other Person, an amount equal to and in the currency of each amount payable
by such Loan Party to the Secured Parties under this Agreement and each of the other Loan Documents (such Loan Party’s “Corresponding
Debt”) as and when each such amount becomes due and payable under such Loan Document (or would have fallen due but for any discharge
resulting from the failure of any Secured Party to take appropriate steps in any proceeding under any Debtor Relief Law affecting such
Loan Party to preserve its right or entitlement to be paid such amount).
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(b) Each
of the Administrative Agent and each Loan Party acknowledges that (i) the obligations of each Loan Party under the foregoing clause
(a) are several and are separate and independent from, and shall not in any way limit or affect, the Corresponding Debt of such
Loan Party and (ii) the amounts for which each Loan Party is liable to the Administrative Agent under its Parallel Debt shall not
be limited or affected in any way by its Corresponding Debt (except as provided in clause (e) of this Section); provided
that (x) the Administrative Agent shall not demand payment with regard to the Parallel Debt of any Loan Party to the extent that
such Loan Party’s Corresponding Debt has been irrevocably paid or discharged and (y) neither the Administrative Agent nor any
Secured Party shall demand payment with regard to the Corresponding Debt of any Loan Party to the extent that such Loan Party’s
Parallel Debt has been irrevocably paid or discharged.
(c) Prior
to the Collateral Release Date, any Lien granted by any Loan Party to the Administrative Agent under any Collateral Document or any other
Loan Document to secure its Parallel Debt is granted to the Administrative Agent in its capacity as creditor of the Parallel Debt of such
Loan Party and shall not be held in trust for any other Secured Party or any other Person.
(d) The
Administrative Agent acts in its own name and on its own behalf and not as agent, representative or trustee of any of the other Secured
Parties with respect to the amounts payable by each Loan Party under this Section. Accordingly, the Administrative Agent shall have its
own independent right to demand payment of all amounts payable by each Loan Party under this Section and, prior to the Collateral
Release Date, to seek enforcement of any Collateral securing such amounts, irrespective of any discharge of such Loan Party’s obligation
to pay the Corresponding Debt to the other Secured Parties resulting from any failure of such Secured Parties to take appropriate steps
in any proceeding under any Debtor Relief Law affecting such Loan Party to preserve their right or entitlement to be paid such amounts.
(e) Notwithstanding
anything to the contrary in this Agreement, (i) the amount of Parallel Debt of each Loan Party shall be decreased to the extent that
the Corresponding Debt of such Loan Party has been irrevocably paid or discharged and (ii) the amount of Corresponding Debt of each
Loan Party shall be decreased to the extent that the Parallel Debt of such Loan Party has been irrevocably paid or discharged.
(f) The
rights of the Secured Parties (other than the Administrative Agent) to receive payment of amounts payable by each Loan Party under the
Corresponding Debt are several and are separate and independent from, and without prejudice to, the rights of the Administrative Agent
to receive payment under the Parallel Debt.
(g) All
amounts received or recovered by the Administrative Agent pursuant to this Section, and all amounts received or recovered by the Administrative
Agent from or by the enforcement of any security granted to secure the Parallel Debt, shall be applied in accordance with Section 8.03.
(h) Without
limiting or affecting the Administrative Agent’s rights or obligations with respect to the Loan Parties (whether under this
Section or under any other provision of this Agreement or any other Loan Document), each Loan Party acknowledges that
(i) nothing in this Section shall impose any obligation on the Administrative Agent to advance any sum to any Loan Party
or otherwise under this Agreement or any other Loan Document, except in its capacity as a Lender, an L/C Issuer and/or the Swing
Line Lender, as applicable and (ii) for the purpose of any vote taken under this Agreement or any other Loan Document, the
Administrative Agent shall not be regarded as having any participation or commitment other than those which it has in its capacity
as a Lender, an L/C Issuer and/or the Swing Line Lender, as applicable.
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(i) For
the avoidance of doubt, this Section shall not operate and may not be construed as operating to disapply, suspend or circumvent any
guarantee and/or indemnity limitations in relation to any claim of a Secured Party set out in this Agreement or any other Loan Document.
10.25 Amendment and Restatement of Existing Credit Agreement.
(a) Amendment
and Restatement. The parties hereto agree that, on the Closing Date, the following transactions shall be deemed to occur automatically,
without further action by any party hereto: (i) the Existing Credit Agreement shall be deemed to be amended and restated in its entirety
pursuant to this Agreement, and the provisions of the Existing Credit Agreement shall be superseded by the provisions hereof; (ii) all
obligations under the Existing Credit Agreement outstanding on the Closing Date shall in all respects be continuing and shall be deemed
to be Obligations outstanding hereunder; (iii) the guarantees made to the lenders, the letter of credit issuers, the administrative
agent and each other holder of the obligations under the Existing Credit Agreement, shall remain in full force and effect with respect
to the Obligations and are hereby reaffirmed; and (iv) the security interests and liens in favor of Bank of America, as administrative
agent for the benefit of the holders of the obligations under the Existing Credit Agreement, created under the collateral documents entered
into in connection with the Existing Credit Agreement shall remain in full force and effect with respect to the Obligations and are hereby
reaffirmed; provided, that, such collateral documents shall, to the extent amended and restated or otherwise replaced on the Closing
Date, be evidenced by such amended and restated or replacement collateral documents from and after the Closing Date. On the Closing Date,
the revolving credit extensions and revolving commitments made by the lenders under the Existing Credit Agreement shall be reallocated
and restated among the Lenders so that, as of the Closing Date, the Revolving Commitments of the Lenders shall be as set forth on Schedule
2.01.
(b) Exiting
Lenders. The Commitments of the Exiting Lenders under the Existing Credit Agreement are hereby terminated simultaneously with the
effectiveness of this Agreement. Concurrently with the effectiveness of this Agreement, each Exiting Lender shall receive payment in full
for all outstanding Loans owing to it under the Existing Credit Agreement. After giving effect to this Agreement, the Exiting Lenders
shall no longer have any Commitments or outstanding Loans.
(c) New
Lenders. By execution of this Agreement, each New Lender hereby acknowledges, agrees and confirms that, by its execution of this Agreement,
such New Lender will be deemed to be a party to this Agreement and a “Lender” for all purposes of this Agreement, and shall
have all of the obligations of a Lender hereunder as if it had executed the Existing Credit Agreement. Each New Lender hereby ratifies,
as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions applicable to the Lenders contained in this
Agreement.
(d) No
Novation. This Agreement constitutes an amendment to the Existing Credit Agreement made under and in accordance with the terms of
Section 10.01 of the Existing Credit Agreement. Each of the parties hereto confirms that the amendment and restatement of the Existing
Credit Agreement pursuant to this Agreement shall not constitute a novation of the Existing Credit Agreement.
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10.26 [Reserved].
10.27 Resignation of Sustainability
Coordinators. Any Sustainability Coordinator may at any time give notice of its resignation to the Administrative Agent, the Lenders,
the L/C Issuers and the Company, which resignation shall be effective on the date set forth in such notice, which date shall not be less
than ten (10) Business Days following the date of receipt of such notice by the Company and the Administrative Agent (the “Sustainability
Coordinator Resignation Effective Date”). Upon receipt of any such notice of resignation, the Company shall have the right to
appoint a successor reasonably acceptable to BofA Securities, which shall be a Lender or an Affiliate of a Lender; provided that
in no event shall any such successor Sustainability Coordinator be a Defaulting Lender. With effect from the Sustainability Coordinator
Resignation Effective Date, the retiring Sustainability Coordinator shall be discharged from any duties and obligations hereunder and
under the other Loan Documents. Upon the acceptance of a successor’s appointment as Sustainability Coordinator hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Sustainability Coordinator (other
than any rights to indemnity payments owed to the retiring Sustainability Coordinator), and the retiring Sustainability Coordinator shall
be discharged from any duties and obligations hereunder or under the other Loan Documents. After the retiring Sustainability Coordinator’s
resignation hereunder and under the other Loan Documents, the provisions of Article IX and this Article X and
all protective provisions of the other Loan Documents, in each case, that are applicable to the Sustainability Coordinators, shall continue
in effect for the benefit of such retiring Sustainability Coordinator, 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 Sustainability Coordinator was acting as Sustainability
Coordinator.
ARTICLE XI.
GUARANTY
11.01 Guaranty.
(a) Each
U.S. Guarantor that is not a Specified U.S. Obligor and each Non-U.S. Guarantor that is not a Specified Non-U.S. Obligor hereby jointly
and severally guarantees to each Secured Party and each other holder of Obligations as hereinafter provided, as primary obligor and not
as surety, the prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration,
as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof. Each U.S. Guarantor that is not a Specified
U.S. Obligor and each Non-U.S. Guarantor that is not a Specified Non-U.S. Obligor hereby further agrees that if any of the Obligations
are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization
or otherwise), such Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in
the case of any extension of time of payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether
at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with
the terms of such extension or renewal.
(b) Each
Non-U.S. Guarantor hereby jointly and severally guarantees to each Secured Party and each other holder of Non-U.S. Obligations as
hereinafter provided, as primary obligor and not as surety, the prompt payment of the Non-U.S. Obligations in full when due (whether
at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in
accordance with the terms thereof. Each Non-U.S. Guarantor hereby further agrees that if any of the Non-U.S. Obligations are not
paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization
or otherwise), such Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that
in the case of any extension of time of payment or renewal of any of the Non-U.S. Obligations, the same will be promptly paid in
full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal. For the avoidance of doubt, the liabilities established
pursuant to this clause (b) are without duplication of the liabilities established pursuant to the foregoing clause
(a).
205
(c) Notwithstanding
any provision to the contrary contained herein or in any other of the Loan Documents or the other documents relating to the Obligations,
the obligations of each Guarantor (in its capacity as such) under this Agreement and the other Loan Documents shall not exceed an aggregate
amount equal to the largest amount that would not render such obligations subject to avoidance under applicable Debtor Relief Laws.
(d) In
particular and for the purposes of Articles 399 and 652.1 of the Spanish Insolvency Law, the obligations of each Spanish Guarantor under
this Article XI shall be governed by the terms of this Agreement and the other Loan Documents and will not be affected, reduced
or terminated by or as a consequence of the approval of a composition agreement (“convenio”) within the insolvency
proceedings concerning each Spanish Guarantor or the court sanctioning of a restructuring plan (“homologación de plan
de reestructuración”). As a consequence of the above, each Spanish Guarantor’s obligations will remain unchanged,
regardless of how the Administrative Agent or, to the extent applicable, the Lenders, have voted with respect to such composition agreement
or restructuring plan.
(e) Notwithstanding
any provision to the contrary contained herein, the obligations and liabilities of any Spanish Guarantor under this Article XI
or any other provision of this Agreement shall be deemed not to be assumed by such Spanish Guarantor to the extent that they constitute
or may constitute unlawful financial assistance within the meaning of Article 150 of the Spanish Companies Law (where the company
is a Spanish public company (“Sociedad Anónima”)) or Article 143 of the Spanish Companies Law (where the
company is a Spanish limited liability company (“Sociedad de Responsabilidad Limitada”)) or any equivalent provision
of any other applicable Law. Accordingly, the obligations and liabilities of any Spanish Guarantor under this Article XI or
any other provision of this Agreement or any other Loan Document shall not include and shall not be extended to any obligations in respect
of financing used in or towards payment of or refinance of the purchase price or subscription for (and any related costs of) the shares
or quotas in any Spanish Guarantor and/or the acquisition of or subscription for (and any related costs of) the shares or quotas in its
controlling corporation directly or indirectly (or, where the company is a Spanish limited liability company (“Sociedad de Responsabilidad
Limitada”), of any company of its group). The guarantee, indemnity and other obligations of any Spanish Guarantor incorporated
as a Spanish limited liability company (“Sociedad de Responsabilidad Limitada”) expressed to be assumed by it under
the guarantee of any Spanish Guarantor shall not include and shall not extend to any obligations which could reasonably be expected to
result in a breach of Article 401 of the Spanish Companies Law.
11.02 Obligations Unconditional.
(a) The
obligations of the U.S. Guarantors that are not Specified U.S. Obligors and the Non-U.S. Guarantors that are not Specified Non-U.S.
Obligors under Section 11.01(a) are joint and several, absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Loan Documents or other documents relating to the Obligations, or
any substitution, release, impairment or exchange of any other guarantee of or security for any of the Obligations, and, to the
fullest extent permitted by applicable Law, irrespective of any other circumstance whatsoever which might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor (other than payment in full of the Obligations (other than
contingent indemnification obligations for which no claim or demand has been made)), it being the intent of this Section 11.02
that the obligations of the U.S. Guarantors that are not Specified U.S. Obligors and the Non-U.S. Guarantors that are not Specified
Non-U.S. Obligors hereunder shall be absolute and unconditional under any and all circumstances. Each U.S. Guarantor that is not a
Specified U.S. Obligor and each Non-U.S. Guarantor that is not a Specified Non-U.S. Obligor agrees that such Guarantor’s right
of subrogation, indemnity, reimbursement or contribution against any Borrower or any other Loan Party for amounts paid under this Article XI
shall be unconditionally postponed until such time as the Obligations have been paid in full (other than contingent indemnification
obligations for which no claim or demand has been made) and the Commitments have expired or terminated.
206
(b) The
obligations of the Non-U.S. Guarantors under Section 11.01(b) are joint and several, absolute and unconditional, irrespective
of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents or other documents relating to the Non-U.S.
Obligations, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Non-U.S. Obligations,
and, to the fullest extent permitted by applicable Law, irrespective of any other circumstance whatsoever which might otherwise constitute
a legal or equitable discharge or defense of a surety or guarantor (other than payment in full of the Obligations (other than contingent
indemnification obligations for which no claim or demand has been made)), it being the intent of this Section 11.02 that the
obligations of the Non-U.S. Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Each Non-U.S. Guarantor
agrees that such Guarantor’s right of subrogation, indemnity, reimbursement or contribution against any Borrower or any other Loan
Party for amounts paid under this Article XI shall be unconditionally postponed until such time as the Non-U.S. Obligations
have been paid in full (other than contingent indemnification obligations for which no claim or demand has been made) and the Commitments
have expired or terminated.
(c) Without
limiting the generality of the foregoing subsections (a) and (b), it is agreed that, to the fullest extent permitted
by Law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall
remain absolute and unconditional as described above:
(i) at
any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Obligations
shall be extended, or such performance or compliance shall be waived;
(ii) any
of the acts mentioned in any of the provisions of any of the Loan Documents or other documents relating to the Obligations or any other
agreement or instrument referred to therein shall be done or omitted;
(iii) the
maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect,
or any right under any of the Loan Documents or other documents relating to the Obligations or any other agreement or instrument referred
to therein shall be waived or any other guarantee of any of the Obligations or any security therefor shall be released, impaired or exchanged
in whole or in part or otherwise dealt with;
207
(iv) any
Lien granted to, or in favor of, the Administrative Agent or any other holder of the Obligations as security for any of the Obligations
shall fail to attach or be perfected; or
(v) any
of the Obligations shall be determined to be void or voidable (including for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including any creditor of any Guarantor).
(d) With
respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Administrative Agent or any other holder of the Obligations exhaust any right, power
or remedy or proceed against any Person under any of the Loan Documents or any other document relating to the Obligations or any other
agreement or instrument referred to therein, or against any other Person under any other guarantee of, or security for, any of the Obligations.
11.03 Reinstatement. Neither
the Guarantors’ obligations hereunder nor any remedy for the enforcement thereof shall be impaired, modified or released in any
manner whatsoever by an impairment, modification, change, release or limitation of the liability of the Borrowers, by reason of any Borrower’s
bankruptcy or insolvency or by reason of the invalidity or unenforceability of all or any portion of the Obligations. In addition:
(a) The
obligations of each U.S. Guarantor that is not a Specified U.S. Obligor and each Non-U.S. Guarantor that is not a Specified Non-U.S. Obligor
under this Article XI shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf
of any Person in respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether
as a result of any Debtor Relief Law or otherwise, and each such Guarantor agrees that it will indemnify the Administrative Agent and
each other holder of the Obligations on demand for all reasonable costs and expenses (including the fees, charges and disbursements of
counsel) incurred by the Administrative Agent or such holder of the Obligations in connection with such rescission or restoration, including
any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer
or similar payment under any Debtor Relief Law.
(b) The
obligations of each Non-U.S. Guarantor under this Article XI shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of any Person in respect of the Non-U.S. Obligations is rescinded or must be otherwise restored
by any holder of any of the Non-U.S. Obligations, whether as a result of any Debtor Relief Law or otherwise, and each such Guarantor agrees
that it will indemnify the Administrative Agent and each other holder of the Non-U.S. Obligations on demand for all reasonable costs and
expenses (including the fees, charges and disbursements of counsel) incurred by the Administrative Agent or such holder of the Non-U.S.
Obligations in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any
claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any Debtor Relief Law.
11.04 Certain
Additional Waivers. Each Guarantor acknowledges and agrees that (a) the guaranty given hereby may be enforced without the
necessity of resorting to or otherwise exhausting remedies in respect of any other security or collateral interests, and without the
necessity at any time of having to take recourse against the Borrowers hereunder or against any collateral securing the Obligations
or otherwise, and (b) it will not assert any right to require the action first be taken against the Borrowers or any other
Person (including any co-guarantor) or pursuit of any other remedy or enforcement any other right, and (c) nothing contained
herein shall prevent or limit action being taken against the Borrowers hereunder, under the other Loan Documents or the other
documents and agreements relating to the Obligations or from foreclosing on any security or collateral interests relating hereto or
thereto, or from exercising any other rights or remedies available in respect thereof, if neither the Borrowers nor the Guarantors
shall timely perform their obligations, and the exercise of any such rights and completion of any such foreclosure proceedings shall
not constitute a discharge of the Guarantors’ obligations hereunder unless as a result thereof, the Obligations shall have
been paid in full (other than contingent indemnification obligations for which no claim or demand has been made) and the commitments
relating thereto shall have expired or terminated, it being the purpose and intent that the Guarantors’ obligations hereunder
be absolute, irrevocable, independent and unconditional under all circumstances. Each Guarantor further agrees that such Guarantor
shall have no right of recourse to security for the Obligations, except through the exercise of rights of subrogation pursuant to Section 11.02
and through the exercise of rights of contribution pursuant to Section 11.06.
208
11.05 Remedies.
(a) The
U.S. Guarantors that are not Specified U.S. Obligors and the Non-U.S. Guarantors that are not Specified Non-U.S. Obligors agree that,
to the fullest extent permitted by Law, as between such Guarantors, on the one hand, and the Administrative Agent and the other holders
of the Obligations, on the other hand, the Obligations may be declared to be forthwith due and payable as specified in Section 8.02
(and shall be deemed to have become automatically due and payable in the circumstances specified in Section 8.02) for purposes
of Section 11.01(a) notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing
the Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or
the Obligations being deemed to have become automatically due and payable), the Obligations (whether or not due and payable by any other
Person) shall forthwith become due and payable by the U.S. Guarantors that are not Specified U.S. Obligors and the Non-U.S. Guarantors
that are not Specified Non-U.S. Obligors for purposes of Section 11.01(a). The U.S. Guarantors that are not Specified U.S.
Obligors and the Non-U.S. Guarantors that are not Specified Non-U.S. Obligors acknowledge and agree that, prior to the Collateral Release
Date, their obligations hereunder are secured in accordance with the terms of the Collateral Documents to which they are parties and that
the holders of the Obligations may exercise their remedies thereunder in accordance with the terms thereof.
(b) The
Non-U.S. Guarantors agree that, to the fullest extent permitted by Law, as between such Guarantors, on the one hand, and the Administrative
Agent and the other holders of the Non-U.S. Obligations, on the other hand, the Non-U.S. Obligations may be declared to be forthwith due
and payable as specified in Section 8.02 (and shall be deemed to have become automatically due and payable in the circumstances
specified in Section 8.02) for purposes of Section 11.01(b) notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Non-U.S. Obligations from becoming automatically due and payable) as against
any other Person and that, in the event of such declaration (or the Non-U.S. Obligations being deemed to have become automatically due
and payable), the Non-U.S. Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by
the Non-U.S. Guarantors for purposes of Section 11.01(b). The Non-U.S. Guarantors acknowledge and agree that, prior to the
Collateral Release Date, their obligations hereunder are secured in accordance with the terms of the Collateral Documents to which they
are parties and that the holders of the Non-U.S. Obligations may exercise their remedies thereunder in accordance with the terms thereof.
209
11.06 Rights of Contribution.
(a) The
U.S. Guarantors that are not Specified U.S. Obligors and the Non-U.S. Guarantors that are not Specified Non-U.S. Obligors hereby agree
as among themselves that, in connection with payments made hereunder, each U.S. Guarantor that is not a Specified U.S. Obligor and each
Non-U.S. Guarantor that is not a Specified Non-U.S. Obligor shall have a right of contribution from each other U.S. Guarantor that is
not a Specified U.S. Obligor and each other Non-U.S. Guarantor that is not a Specified Non-U.S. Obligor in accordance with applicable
Law. Such contribution rights shall be subordinate and subject in right of payment to the Obligations until such time as the Obligations
have been irrevocably paid in full (other than contingent indemnification obligations for which no claim or demand has been made) and
the commitments relating thereto shall have expired or been terminated, and none of the U.S. Guarantors that are not Specified U.S. Obligors
and none of the Non-U.S. Guarantors that are not Specified Non-U.S. Obligors shall exercise any such contribution rights until the Obligations
have been irrevocably paid in full (other than contingent indemnification obligations for which no claim or demand has been made) and
the commitments relating thereto shall have expired or been terminated.
(b) The
Non-U.S. Guarantors hereby agree as among themselves that, in connection with payments made hereunder, each Non-U.S. Guarantor shall have
a right of contribution from each other Non-U.S. Guarantor in accordance with applicable Law. Such contribution rights shall be subordinate
and subject in right of payment to the Non-U.S. Obligations until such time as the Non-U.S. Obligations have been irrevocably paid in
full (other than contingent indemnification obligations for which no claim or demand has been made) and the commitments relating thereto
shall have expired or been terminated, and none of the Non-U.S. Guarantors shall exercise any such contribution rights until the Non-U.S.
Obligations have been irrevocably paid in full (other than contingent indemnification obligations for which no claim or demand has been
made) and the commitments relating thereto shall have expired or been terminated.
11.07 Guarantee of Payment; Continuing Guarantee.
(a) The
guarantee given by the U.S. Guarantors that are not Specified U.S. Obligors and the Non-U.S. Guarantors that are not Specified Non-U.S.
Obligors in this Article XI is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to
all Obligations whenever arising.
(b) The
guarantee given by the Non-U.S. Guarantors in this Article XI is a guaranty of payment and not of collection, is a continuing
guarantee, and shall apply to all Non-U.S. Obligations whenever arising.
11.08 Keepwell.
(a) Each
U.S. Obligor that is not a Specified Non-U.S. Obligor and each Non-U.S. Obligor that is not a Specified Non-U.S. Obligor, in each
case, that is a Qualified ECP Guarantor at the time the Guaranty in this Article XI by any Loan Party that is not then
an “eligible contract participant” under the Commodity Exchange Act (a “Specified Loan Party”) or the
grant of a security interest under the Loan Documents by any such Specified Loan Party, in either case, becomes effective with
respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such
funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan
Party from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation (but, in each
case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP
Guarantor’s obligations and undertakings under this Article XI voidable under applicable Debtor Relief Laws, and
not for any greater amount).
210
(b) Each
Non-U.S. Obligor that is a Qualified ECP Guarantor at the time the Guaranty in this Article XI by any Non-U.S. Obligor that
is not then an “eligible contract participant” under the Commodity Exchange Act (a “Specified Non-U.S. Loan Party”)
or the grant of a security interest under the Loan Documents by any such Specified Non-U.S. Loan Party, in either case, becomes effective
with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such
funds or other support to each Specified Non-U.S. Loan Party with respect to such Swap Obligation as may be needed by such Specified Non-U.S.
Loan Party from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation (but, in each
case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s
obligations and undertakings under this Article XI voidable under applicable Debtor Relief Laws, and not for any greater amount).
(c) The
obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Obligations
have been indefeasibly paid and performed in full. Each Loan Party intends this Section to constitute, and this Section shall
be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each Specified Loan Party for all purposes
of the Commodity Exchange Act.
11.09 Limitation on Korean
Guarantors. In respect of the Obligations of any Non-U.S. Guarantor incorporated under the laws of Korea (a “Korean Guarantor”),
(a) Notwithstanding
anything to the contrary contained in this Agreement or in any other Loan Documents, any Korean Guarantor’s Obligations shall not
include any obligation or liability which, if incurred, would constitute a breach of the fiduciary duties owed by the directors and officers
of such Korean Guarantor toward it, thereby causing loss to the Korean Guarantor within the meaning of Article 355 or Article 356
of the Korean Criminal Code and/or Article 622 of the Korean Commercial Code or any other law or regulation having the same effect,
as interpreted by Korean courts.
(b) Except
as provided in clause (a) above, the obligations and liabilities of each Korean Guarantor hereunder for the obligations of
any other Loan Party which is a Subsidiary of such Korean Guarantor shall not be limited and shall therefore cover all amounts due by
such Loan Party as a Borrower or as a Guarantor.
(c) The
parties hereto hereby acknowledge and agree that no Korean Guarantor is acting jointly and severally with any other Guarantor as to its
obligations pursuant to the guarantee given under this Agreement.
(d) Each
Korean Guarantor irrevocably and unconditionally undertakes to pay to the Administrative Agent (on behalf of the Lenders) an amount equal
to the aggregate amount of its Obligations, excluding its Parallel Debt (as these may exist from time to time).
211
11.10 Limitation on Irish
Guarantors. In respect of the Obligations of any Irish Loan Party which is a Non-U.S. Guarantor (an “Irish Guarantor”),
none of such Irish Guarantor’s obligations and liabilities under this Article XI (and under any other guarantee or indemnity
provision in a Collateral Document) will extend to include any obligation or liability to the extent doing so would be:
(a) unlawful
financial assistance (within the meaning of Section 82 of the Irish Companies Act); or
(b) a
breach of Section 239 of the Irish Companies Act,
and no security granted by such Irish Guarantor will secure any such
obligation or liability.
11.11 Limitation on English
Guarantors. In respect of the Obligations of any Non-U.S. Guarantor incorporated under the laws of England & Wales (an “English
Guarantor”), none of such English Guarantor’s obligations and liabilities under this Article XI (and, prior
to the Collateral Release Date, under any other guarantee or indemnity provision in a Collateral Document) will apply to any obligation
or liability to the extent that it would result in such guarantee constituting unlawful financial assistance within the meaning of Sections
678 or 679 of the Companies Act 2006.
[SIGNATURE PAGES OMITTED]
212
SCHEDULE 1
Post-Closing Obligations
[See
attached.]
Schedule 1 to Second Amendment
CERTAIN ITEMS TO THIS SCHEDULE 1 (INDENTIFIED
BY “[**REDACTED**]”), HAVE BEEN EXCLUDED BECAUSE THEY ARE BOTH NOT MATERIAL AND ARE OF THE TYPE THAT THE REGISTRANT TREATS
AS PRIVATE OR CONFIDENTIAL.
Schedule 1
Post-Closing Obligations
Part A:
[**REDACTED**]
[Commercially Sensitive]
Part B:
[**REDACTED**]
[Commercially Sensitive]
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The exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
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The Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
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Local phone number for entity.
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
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Title of a 12(b) registered security.
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Name of the Exchange on which a security is registered.
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
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Trading symbol of an instrument as listed on an exchange.
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
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