Form 8-K
8-K — RESIDEO TECHNOLOGIES, INC.
Accession: 0001213900-26-065300
Filed: 2026-06-04
Period: 2026-06-02
CIK: 0001740332
SIC: 5072 (WHOLESALE-HARDWARE)
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: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers
Item: Financial Statements and Exhibits
Documents
8-K — ea0293379-8k_resideo.htm (Primary)
EX-10.1 — SECOND AMENDMENT AND RESTATEMENT AGREEMENT, DATED AS OF JUNE 4, 2026, AMONG RESIDEO TECHNOLOGIES, INC., A DELAWARE CORPORATION, RESIDEO HOLDING INC (ea029337901ex10-1.htm)
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8-K — CURRENT REPORT
8-K (Primary)
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UNITED STATES
SECURITIES AND EXCHANGE COMFMISSION
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):
June 2, 2026
RESIDEO TECHNOLOGIES, INC.
(Exact name of registrant as specified in its
charter)
Delaware
001-38635
82-5318796
(State or other jurisdiction
of incorporation)
(Commission File Number)
(IRS Employer
Identification No.)
16100 N. 71st Street, Suite 500
Scottsdale, Arizona
85254
(Address of principal executive offices)
(Zip Code)
Registrant’s telephone number, including
area code: (480) 573-5340
Registrant’s Former Name or Address, if
changed since last report: N/A
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2.
below):
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange on which registered
Common Stock, $0.001 Par Value
REZI
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
Second Amended and Restated Credit Agreement
On June 4, 2026 (the “Second Amendment and
Restatement Effective Date”), Resideo Technologies, Inc. (the “Company”) entered
into that certain Second Amendment and Restatement Agreement, by and among the Company, Resideo Holding Inc., a Delaware corporation,
Resideo Intermediate Holding Inc., a Delaware corporation, Resideo Funding Inc., a Delaware corporation (the “Borrower”), the lenders and issuing banks party thereto, and JPMorgan Chase Bank, N.A., as administrative
agent (the “Second Amendment and Restatement Agreement”), which amended and restated in its entirety that certain Amended
and Restated Credit Agreement, dated as of February 12, 2021 (as amended, the “Existing Credit Agreement” and the Existing
Credit Agreement as amended and restated by the Second Amendment and Restatement Agreement, the “Second Amended and Restated Credit
Agreement” and the transactions contemplated thereby, the “Refinancing”).
The Second
Amendment and Restatement Agreement was entered into in order to, among other changes, facilitate the previously disclosed proposed spin-off
of the Company’s ADI Global Distribution segment to its common shareholders.
The Second Amended and Restated Credit Agreement
provides for senior secured financing of up to approximately $2,827 million, consisting of:
● an existing senior secured term B loan facility in an aggregate principal amount of approximately $518
million (the “Initial Term Loan Facility”);
● an existing senior secured term B loan facility in an aggregate principal amount of approximately $590
million (the “Fourth Amendment Term Loan Facility”);
● an existing senior secured term B loan facility in an aggregate principal amount of approximately $1,219
million (the “Sixth Amendment Term Loan Facility” and, together with the Initial Term Loan Facility and the Fourth Amendment
Term Loan Facility, the “Term Loan Facilities”, and the loans incurred under the Term Loan facilities, the “Term Loans”);
and
● a new senior secured revolving credit facility, which refinanced in full the existing senior secured revolving
credit facility, which provides for commitments in an aggregate principal amount of $500 million, which are undrawn as of the Second Amendment and Restatement Effective Date (the “Revolving Credit Facility” and, together with the
Term Loan Facilities, the “Senior Credit Facilities”).
Up to $75 million may be utilized under the Revolving
Credit Facility for the issuance of letters of credit for the benefit of the Borrower or any of its subsidiaries. Letters of credit are
available for issuance under the Second Amended and Restated Credit Agreement on terms and conditions customary for financings of this
kind, which issuances will reduce the available funds under the Revolving Credit Facility. The letters of credit and Revolving Credit
Facility are available for working capital and other general corporate purposes from time to time after the Second Amendment and Restatement
Effective Date and prior to the final maturity of the Revolving Credit Facility.
There were no new borrowings under the Senior
Credit Facilities on the Second Amendment and Restatement Effective Date.
Guarantees
All obligations under the Senior Credit Facilities
are unconditionally guaranteed jointly and severally, by: (a) the Company and (b) substantially all of the direct and indirect wholly
owned subsidiaries of the Company that are organized under the laws of the United States, any state thereof or the District of Columbia
(collectively, the “Guarantors”).
1
Security
Subject to certain limitations, the Senior Credit
Facilities are secured on a first priority basis by: (a) a perfected security interest in the equity interests of each direct subsidiary
of the Borrower and each Guarantor under the Senior Credit Facilities (subject to certain customary exceptions) and (b) perfected security
interests in, and mortgages on, substantially all tangible and intangible personal property and material real property of the Borrower
and each of the Guarantors under the Senior Credit Facilities, subject, in each case, to certain exceptions.
Maturity
The Revolving Credit Facility matures five years
after the Second Amendment and Restatement Effective Date, with certain extension rights in the discretion of each lender. The Initial
Term Loan Facility matures February 12, 2028, the Fourth Amendment Term Loan Facility matures June 14, 2031, and the Sixth Amendment Term
Loan Facility matures August 13, 2032, in each case with certain extension rights in the discretion of each lender.
Interest Rate and Fees
The Senior Credit Facilities are subject to an
interest rate, at the Borrower’s option, of either (a) base rate determined by reference to the highest of (1) the rate of interest
last quoted by The Wall Street Journal as the “prime rate” in the United States, (2) the greater of the federal funds effective
rate and the overnight bank funding rate, plus 0.5% and (3) the one month SOFR rate, plus 1% per annum (“ABR”) or (b) a SOFR
rate (“SOFR”) (which shall not be less than zero).
The applicable margin for the Term Loan Facilities
is (a) before the separation of the Company’s ADI Global Distribution business from its products and solutions business completed
through a pro rata distribution of all of the outstanding shares of common stock of ADI Global Distribution Inc., a wholly-owned subsidiary
of the Company, to the Company’s common stockholders and the making of a distribution by ADI Global Distribution Inc., the proceeds
of which shall be applied to voluntarily prepay the Term Loans (the “ADI Spin-Off Transaction”), 2.00% per annum (for SOFR
loans) and 1.00% per annum (for ABR loans) and (b) after the ADI Spin-Off Transaction is consummated, 2.25% per annum (for SOFR loans)
and 1.25% per annum (for ABR loans). The applicable margin for the Revolving Credit Facility varies from 2.00% per annum to 1.50% per
annum (for SOFR loans) and 1.00% to 0.50% per annum (for ABR loans) based on the leverage ratio under the Second Amended and Restated
Credit Agreement. Accordingly, the interest rates for the Senior Credit Facilities will fluctuate during the term of the Second Amended
and Restated Credit Agreement based on changes in the ABR, SOFR or future changes in the leverage ratio thereunder. Interest payments
with respect to the Term Loan Facility are required to be made either on a quarterly basis (for ABR loans) or at the end of each interest
period (for SOFR loans) or, if the duration of the applicable interest period exceeds three months, then every three months.
In addition to paying interest on outstanding
borrowings under the Revolving Credit Facility, the Borrower is required to pay a quarterly commitment fee based on the unused portion
of the Revolving Credit Facility, which is determined by the leverage ratio under the Second Amended and Restated Credit Agreement and
ranges from 0.25% to 0.35% per annum.
The Borrower is obligated to make quarterly principal
payments throughout the term of the Term Loan Facility according to the amortization provisions in the Second Amended and Restated Credit
Agreement, as such payments may be reduced from time to time in accordance with the terms of the Second Amended and Restated Credit Agreement
as a result of the application of loan prepayments made thereunder, if any, prior to the scheduled date of payment thereof.
Prepayments
The Borrower may voluntarily prepay borrowings
under the Second Amended and Restated Credit Agreement without premium or penalty, subject to customary “breakage” costs with
respect to SOFR loans. The Borrower may also reduce the commitments under the Revolving Credit Facility, in whole or in part, in each
case, subject to certain minimum amounts and increments.
2
The Second Amended and Restated Credit Agreement
also contains certain mandatory prepayment provisions in the event that the Company or its subsidiaries incur certain types of indebtedness,
receive net cash proceeds from certain non-ordinary course asset sales or other dispositions of property or 50% of excess cash flow on
an annual basis (with step-downs to 25% and 0% subject to compliance with certain leverage ratios), in each case subject to thresholds,
terms and conditions customary for financings of this kind.
Representations and Warranties
The Second Amended and Restated Credit Agreement
contains certain representations and warranties (subject to certain agreed qualifications), including, among others, (a) status, binding
obligations, non-conflict with other obligations, and power and authority, (b) solvency, taxation and litigation matters, (c) disclosure,
(d) property ownership, (e) investment company status, (f) government approvals, (g) environmental matters and (h) compliance with sanctions
and anti-corruption laws.
Certain Covenants
The Second Amended and Restated Credit Agreement
contains certain affirmative and negative covenants customary for financings of this type that, among other things, limit certain activities
or actions, including the incurrence of additional indebtedness or liens, dispositions of assets, making of certain fundamental changes,
entering into restrictive agreements, making certain investments, making certain loans, advances, guarantees and acquisitions, prepaying
certain indebtedness, paying dividends or making certain other distributions or redemptions/repurchases on certain equity interests, engaging
in transactions with affiliates or amending certain material documents.
In addition, the Second Amended and Restated Credit
Agreement contains financial covenants applicable to the Revolving Credit Facility requiring the maintenance of a consolidated total leverage
ratio not to exceed (i) for any period of four consecutive fiscal quarters ending on the last day of any fiscal quarter of the Company
(each such date, a “CTLR Testing Date”) prior to the fiscal quarter in which the ADI Spin-Off Transaction is consummated,
3.50:1.00, (ii) 4.75:1.00 for the first two CTLR Testing Dates ending after the date on which the ADI Spin-Off Transaction is consummated,
(iii) 4.50:1.00 for the third and fourth CTLR Testing Dates ending after the date on which the ADI Spin-Off Transaction is consummated,
(iv) 4.25:1.00 for the fifth and sixth CTLR Testing Dates ending after the date on which the ADI Spin-Off Transaction is consummated and
(v) 4.00:1.00, provided, that, at the election of the Borrower, the maximum permitted total leverage ratio pursuant to the foregoing
clauses (iv) and (v) may be increased to 4.50:1.00 for the first four CTLR Testing Dates following the consummation of any merger, amalgamation,
acquisition or similar investment or consolidation (or series of related transactions), in any such case, by the Company or, any subsidiary
restricted under the Second Amended and Restated Credit Agreement, that involves aggregate consideration greater than or equal to $250
million), and a consolidated interest coverage ratio of not less than 2.50 to 1.00.
Events of Default
The Second Amended and Restated Credit Agreement
contains customary events of default, including with respect to a failure to make payments under the Senior Credit Facilities, cross-default,
certain bankruptcy and insolvency events and customary change of control events.
Subject to the terms and conditions contained
therein, the Second Amended and Restated Credit Agreement contains provisions that permit the Company to effectuate the ADI Spin-Off Transaction
and related actions.
The foregoing descriptions of the Second Amendment
and Restatement Agreement and the Second Amended and Restated Credit Agreement do not purport to be complete and are qualified in their
entireties by reference to Second Amendment and Restatement Agreement, a copy of which is filed as Exhibit 10.1 hereto and is incorporated
herein by reference.
3
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 with respect
to the Second Amendment and Restatement Agreement is incorporated herein by reference.
Item 5.02. Compensatory Arrangements of Certain Officers.
As previously reported on the Current Report on Form 8-K filed with the Securities and Exchange Commission on May 11, 2026, the Board
of Directors (the “Board”) of the Company approved the appointment of Thomas Surran as President and Chief Executive Officer
of the Company and as a director of the Company, in each case effective upon consummation of the ADI Spin-Off Transaction (the “Separation
Date”). The ADI Spin-Off Transaction is expected to be completed between mid-third quarter and mid-fourth quarter of 2026. Mr. Surran
will succeed Jay Geldmacher, who will transition to an executive advisor role and will resign from the Board following the appointment
of Mr. Surran upon consummation of the ADI Spin-Off Transaction, pursuant to the terms of a previously announced transition arrangement.
On June 2, 2026, the Compensation and Human Capital Management Committee
of the Board (the “Compensation Committee”)
approved the compensation and employment terms for Mr. Surran as set forth in an offer letter with the Company, effective as of the Separation
Date. Pursuant to the offer letter, Mr. Surran will receive an annual base salary of $900,000 and will be eligible to earn an annual bonus
with a target opportunity equal to 135% of base salary; provided, that for 2026, the bonus will be determined based on a target of 100%
of base salary pro-rated based on the number of days in the calendar year prior to the Separation Date and at a target of 135% of base
salary pro-rated based on the number of days in the calendar year following the Separation Date. Beginning in 2027, Mr. Surran will be
eligible for annual long-term incentive (“LTI”) awards, which may consist of time-based restricted stock units, options, performance-based
restricted stock units, or some combination thereof, as determined by the Compensation Committee in its discretion. The terms of all LTI
awards will be governed by the Company’s applicable stock plan and relevant award agreements. In addition, as of the Separation
Date, Mr. Surran will be granted an LTI award with a grant date value of $1,583,000 in the form of restricted stock units, with 100% of
such restricted stock units vesting on the third anniversary of the grant date. Following the Separation Date, Mr. Surran will be required
to (i) comply with the Company’s policy regarding outside board membership which requires that the CEO serve on no more than two
public company boards, including the Board, and (ii) hold an increased multiple of his annual base salary in Company shares in accordance
with the Company’s stock ownership guidelines.
Mr. Surran will continue to be eligible for the severance benefits
provided to the Company’s other executive officers under the Resideo Technologies, Inc. Severance Plan for Designated Officers in
effect at the time of his separation. In order to receive severance benefits, Mr. Surran will be required under his offer letter to execute
a separation agreement that includes a release of claims in favor of the Company and its affiliates, and may be required to agree to certain
non-disclosure and restrictive covenants.
In addition to participating in the Company’s
benefits available to other employees and executives, Mr. Surran will receive (i) Company-paid annual premiums for an Excess Liability
Insurance policy providing $5,000,000 of personal liability umbrella coverage per occurrence, and (ii) an annual executive physical benefit
valued at up to $7,500, subject to cost-of-living-adjustment increases.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
10.1^
Second
Amendment and Restatement Agreement, dated as of June 4, 2026, among Resideo Technologies, Inc., a Delaware corporation, Resideo
Holding Inc., a Delaware corporation, Resideo Intermediate Holding Inc., a Delaware corporation, Resideo Funding Inc., a Delaware
corporation, the lenders and issuing banks party thereto and JPMorgan Chase Bank, N.A., as administrative agent.
104
Cover Page Interactive Data File (embedded within
the Inline XBRL document).
^ Schedules have been omitted pursuant to Item 601(a)(5) of Regulation
S-K. The Registrant undertakes to furnish supplemental copies of any of the omitted schedules upon request by the SEC.
4
SIGNATURE
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.
RESIDEO TECHNOLOGIES, INC.
By:
/s/ Jeannine J. Lane
Name:
Jeannine J. Lane
Title:
Executive Vice President, General Counsel and Corporate Secretary
Date: June 4, 2026
5
EX-10.1 — SECOND AMENDMENT AND RESTATEMENT AGREEMENT, DATED AS OF JUNE 4, 2026, AMONG RESIDEO TECHNOLOGIES, INC., A DELAWARE CORPORATION, RESIDEO HOLDING INC
EX-10.1
Filename: ea029337901ex10-1.htm · Sequence: 2
Exhibit 10.1
Execution Version
SECOND AMENDMENT AND RESTATEMENT
AGREEMENT, dated as of June 4, 2026 (this “Second Amendment and Restatement Agreement”), to the Amended and Restated
Credit Agreement dated as of February 12, 2021 (as amended by that certain First Amendment to Amended and Restated Credit Agreement dated
as of March 28, 2022, as amended by that certain Second Amendment to Amended and Restated Credit Agreement, dated as of June 30, 2023,
as amended by that certain Third Amendment to Amended and Restated Credit Agreement dated as of May 24, 2024, as amended by that certain
Fourth Amendment to Amended and Restated Credit Agreement dated as of June 14, 2024, as amended by that certain Fifth Amendment to Amended
and Restated Credit Agreement dated as of December 16, 2024, as amended by that certain Sixth Amendment to Amended and Restated Credit
Agreement, dated as of August 13, 2025, and as further amended, restated, supplemented or otherwise modified from time to time prior to
the date hereof, the “Existing Credit Agreement”) among RESIDEO TECHNOLOGIES, INC., a Delaware corporation (“Holdings”),
RESIDEO HOLDING INC., a Delaware corporation (“U.S. HoldCo 1”), RESIDEO INTERMEDIATE HOLDING INC., a Delaware corporation
(“U.S. HoldCo 2”), RESIDEO FUNDING INC., a Delaware corporation (the “Borrower”), the financial
institutions party thereto as Lenders and Issuing Banks and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
WHEREAS,
the Borrower has requested to amend and restate the Existing Credit Agreement, to be effective on the Second Amendment and Restatement
Effective Date but prior to the effectiveness of the Non-Refinancing Amendments (as defined below), subject to the conditions set forth
herein and in the Amended Credit Agreement (as defined below), and in connection therewith:
(A) the
Borrower has decided to repay in full any Revolving Loans (as defined in the Existing Credit Agreement) and to terminate any outstanding
Revolving Commitments (as defined in the Existing Credit Agreement) (the “Refinancing”);
(B) each
of the financial institutions executing this Second Amendment and Restatement Agreement as Revolving Lenders have (i) agreed to the terms
of this Second Amendment and Restatement Agreement, (ii) agreed to become Lenders under the Amended Credit Agreement and to provide Revolving
Commitments (as defined in the Amended Credit Agreement) in the amounts set forth on Schedule 2.01 hereto opposite such Lender’s
name and (iii) consented to the Refinancing Amendments (as defined below); and
(C) each
of the financial institutions executing this Amendment and Restatement Agreement as Issuing Banks have (i) agreed to the terms of this
Second Amendment and Restatement Agreement, (ii) agreed to become Issuing Banks and to issue Letters of Credit in the amounts set forth
in the Amended Credit Agreement with respect to such Issuing Bank and (iii) consented to the Refinancing Amendments;
WHEREAS,
Holdings intends to separate its ADI global distribution business from its products and solutions business on or around August 3, 2026,
which separation is intended to be completed through a pro rata distribution of all of the outstanding shares of common stock of ADI Global
Distribution Inc., a wholly-owned subsidiary of the Holdings, to Holdings’ common stockholders (the “ADI Spin-Off Transaction”);
WHEREAS,
in order to, among other things, permit and facilitate the ADI Spin-Off Transaction and transactions relating thereto, the Borrower has
requested to further amend and restate the Existing Credit Agreement, to be effective on the Second Amendment and Restatement Effective
Date but after the effectiveness of the Refinancing Amendments, subject to the conditions set forth herein and in the Amended Credit Agreement,
and in connection therewith, each Lender (as defined in the Amended Credit Agreement) existing immediately after giving effect to the
Refinancing Amendments but prior to the Non-Refinancing Amendments that executes and delivers a signature page to this Second Amendment
and Restatement Agreement as Revolving Lenders, as Issuing Banks or in the form of Annex A hereto (a “Lender Addendum”
and, such Lenders, the “Consenting Lenders”), which Consenting Lenders, for the avoidance of doubt, constitute Required
Lenders, in each case, on the Second Amendment and Restatement Effective Date but immediately after the effectiveness of the Refinancing
Amendments, will hereby (i) agree to the terms of this Second Amendment and Restatement Agreement and (ii) consent to the Non-Refinancing
Amendments;
WHEREAS,
attached as Annex B hereto is the Existing Credit Agreement as proposed to be amended and restated in its entirety pursuant to
this Second Amendment and Restatement Agreement by deleting the stricken text (indicated textually in the same manner as the following
example: stricken text) and adding the double-underlined text (indicated textually in
the same manner as the following example: double-underlined text)
as set forth therein (such modifications, collectively, the “Second A&R Amendments”, and such conformed copy of
the Credit Agreement, upon effectiveness of the Refinancing Amendments, the Non-Refinancing Amendments or the Second Amendment and Restatement
Effective Date, as applicable, the “Amended Credit Agreement”);
WHEREAS,
in order to facilitate the Non-Refinancing Amendments, the Borrower has also requested to make amendments to certain other Loan Documents,
to be effective on the Second Amendment and Restatement Effective Date concurrently with the effectiveness of the Non-Refinancing Amendments,
on and subject to the terms and conditions set forth herein, and in connection therewith, each Consenting Lender will hereby (i) agree
to the terms of this Second Amendment and Restatement Agreement and (ii) consent to the Loan Document amendments set forth in Section
3 below;
WHEREAS,
in order to facilitate the ADI Spin-Off Transaction and transactions relating thereto, the Borrower has also requested to release the
Guarantees provided by the ADI Spin-Off Entities under the Security Documents and release the Collateral owned by such ADI Spin-Off Entities
from the Liens of the Security Documents, to be effective on the Second Amendment and Restatement Effective Date concurrently with the
effectiveness of the Non-Refinancing Amendments, on and subject to the terms and conditions set forth herein, and in connection therewith,
each Consenting Lender will hereby (i) agree to the terms of this Second Amendment and Restatement Agreement and (ii) consent to the ADI
Spin-Off Entities Release (as defined below);
WHEREAS,
certain of the ADI Spin-Off Entities will enter into a credit facility in connection with the ADI Spin-Off Transaction, the proceeds of
which will be used, together with cash on hand of Holdings and its Subsidiaries and the proceeds from notes to be issued to effect the
ADI Spin-Off Prepayment in an amount expected to be not less than $900,000,000 (the “ADI Spin-Off Distribution”), with
any remaining proceeds to be retained by the ADI Spin-Off Entities; and
WHEREAS,
it is contemplated that the Borrower will merge with and into Resideo Funding II, LLC, a Delaware limited liability company (the “New
Borrower”), with the New Borrower as surviving entity (the “Co-Borrower Merger”) and carrying on as the sole
“Borrower” under the Amended Credit Agreement following such Co-Borrower Merger.
2
NOW, THEREFORE,
in order to effect the foregoing, the Borrower and the other parties hereto desire to, as of the Second Amendment and Restatement Effective
Date, amend and restate the Existing Credit Agreement and to enter into certain other agreements herein, in each case subject to the terms
and conditions set forth herein. In consideration of the premises and agreements, provisions and covenants herein contained and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION
1. Defined Terms. Capitalized terms used and not otherwise defined herein have the meanings assigned to them in the
Amended Credit Agreement.
SECTION
2. Credit Agreement Amendments.
(a)
Effective as of the Second Amendment and Restatement Effective
Date but prior to the effectiveness of the Non-Refinancing Amendments, the Existing Credit Agreement is hereby amended to give effect
to the Second A&R Amendments set forth in (i) the definitions of “Applicable Rate”, “Revolving Commitment”
and “Revolving Maturity Date” in Section 1.01 of the Amended Credit Agreement, (ii) Section 6.12 of the Amended Credit Agreement
and (iii) Section 6.13 of the Amended Credit Agreement (collectively, the “Refinancing Amendments”, and the Second
A&R Amendments, other than the Refinancing Amendments, the “Non-Refinancing Amendments”) (it being agreed by the
Revolving Lenders and Issuing Banks party hereto that any defined terms used in connection with the Refinancing Amendments shall have
the meanings assigned to them in the Amended Credit Agreement).
(b) Effective
as of the Second Amendment and Restatement Effective Date but after the effectiveness of the Refinancing Amendments, the Existing Credit
Agreement is hereby amended to give effect to the Non-Refinancing Amendments and, consequently, the Amended Credit Agreement amends and
restates the Existing Credit Agreement in its entirety.
(c) Effective
as of the Second Amendment and Restatement Effective Date and concurrently with the effectiveness of the Non-Refinancing Amendments, each
Schedule to the Existing Credit Agreement is hereby deleted and replaced with those Schedules to the Amended Credit Agreement attached
as Annex C hereto.
SECTION
3. Amendments to Other Loan Documents. Effective as of the Second Amendment and Restatement Effective Date and concurrently
with the effectiveness of the Non-Refinancing Amendments:
a) Section
3.02(a) of the Amended and Restated Collateral Agreement (as defined in the Existing Credit Agreement) is hereby amended by adding “representing
Pledged Equity Interests” after each instance of “Pledged Securities” contained therein.
b) The
definition of “Paid in Full” in the Amended and Restated Collateral Agreement is hereby amended and restated in its entirety
as follows:
“Paid in
Full” and “Payment in Full” shall mean (a) payment in full in cash of all of the Secured Obligations (other
than (i) Secured Hedging Obligations not yet due and payable, (ii) Secured Cash Management Obligations not yet due and payable, (iii)
Secured Supply Chain Financing Obligations not yet due and payable, (iv) Secured Additional Letter of Credit Facility Obligations not
yet due and payable and (v) contingent indemnification obligations not yet accrued and payable) and (b) with respect to Letters of Credit,
when all Letters of Credit have expired or been terminated (other than Letters of Credit that have been cash collateralized or backstopped
in an amount, by an institution and otherwise pursuant to arrangements reasonably satisfactory to the applicable Issuing Bank).
3
c) Each
Schedule to the Amended and Restated Collateral Agreement is hereby deleted and replaced with those Schedules to the Amended and Restated
Collateral Agreement attached as Annex D hereto.
SECTION
4. ADI Spin-Off Entities Release. Effective as of the Second Amendment and Restatement Effective Date and concurrently
with the effectiveness of the Non-Refinancing Amendments, notwithstanding anything set forth in the Loan Documents:
(a) subject
to clause (c) below, each ADI Spin-Off Entity shall automatically be released from its obligations under the Loan Documents, and
all security interests created by the Security Documents in Collateral owned by such ADI Spin-Off Entity shall be automatically released,
in each case, on the effective date of the ADI Spin-Off Transaction (which releases may, for the avoidance of doubt, occur prior to (but
on the same date as) the effectiveness of the ADI Spin-Off Transaction) (the “ADI Spin-Off Entities Release”);
(b) in
connection with the ADI Spin-Off Entities Release, the Administrative Agent shall, at the sole expense of the Borrower, execute and deliver
to any ADI Spin-Off Entity, at such ADI Spin-Off Entity’s expense, all documents that such ADI Spin-Off Entity shall reasonably
request to file or register in any office, or to evidence, such ADI Spin-Off Entities Release. Each of the Consenting Lenders irrevocably
authorizes the Administrative Agent, at its option and in its discretion, to effect the ADI Spin-Off Entities Release; and
(c) the
obligations of the ADI Spin-Off Entities under the Loan Documents shall continue to be effective or be reinstated, as the case may be,
if the ADI Spin-Off Transaction does not occur or is otherwise determined to be invalid, illegal or unenforceable and the Administrative
Agent is authorized to, at the sole expense of the Borrower, enter into such supplements to the Security Documents and make such filings
and recordations, including Uniform Commercial Code financing statements required by law or specified in the Security Documents, to ensure
the Collateral and Guarantee Requirement has been, or continues to be, satisfied with respect to the ADI Spin-Off Entities.
SECTION
5. Representations and Warranties. To induce the other parties hereto to enter into this Second Amendment and Restatement
Agreement, Holdings, U.S. HoldCo 1, U.S. HoldCo 2 and the Borrower each represents and warrants to the other parties hereto on the Second
Amendment and Restatement Effective Date that:
(a) (i) the
execution, delivery and performance by such Loan Party of this Second Amendment and Restatement Agreement is within such Loan
Party’s corporate or other organizational power and has been duly authorized by all necessary corporate or other
organizational action of each such Loan Party; and (ii) this Second Amendment and Restatement Agreement has been duly executed and
delivered by such Loan Party and is a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in
equity or at law; and
(b) the
execution, delivery and performance of this Second Amendment and Restatement Agreement by each applicable Loan Party, the issuance of
Letters of Credit, the borrowings under the Amended Credit Agreement and the use of the proceeds thereof (i) do not require any consent
or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or
made and are in full force and effect and except where failure to obtain such consent or approval, or make such registration or filing,
in the aggregate, would not reasonably be expected to have a Material Adverse Effect, (ii) will not violate any Requirement of Law
applicable to Holdings, the Borrower or any Restricted Subsidiary, (iii) will not violate or result in a default under any indenture,
agreement or other instrument binding upon Holdings, the Borrower or any Restricted Subsidiary or their respective assets, or give rise
to a right thereunder to require any payment, repurchase or redemption to be made by Holdings, the Borrower or any Restricted Subsidiary
or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation thereunder, except with respect
to any violation, default, payment, repurchase, redemption, termination, cancellation or acceleration under this clause (iii) or clause
(ii) above that would not reasonably be expected to have a Material Adverse Effect and (iv) will not result in the creation or imposition
of any Lien on any asset of Holdings, the Borrower or any Restricted Subsidiary, except Liens permitted by Section 6.02 of the Amended
Credit Agreement.
4
SECTION
6. Second Amendment and Restatement Effective Date. This Second Amendment
and Restatement Agreement shall become effective as of the first date (the “Second Amendment and Restatement Effective Date”)
on which each of the following conditions shall have been satisfied (or waived in accordance with Section 9.02 of the Existing Credit
Agreement):
(a) the
Administrative Agent shall have received this Second Amendment and Restatement Agreement, executed and delivered by the Administrative
Agent, each Loan Party, each Revolving Lender and each Issuing Bank listed on Schedule 2.01 hereto and, other than with respect to effectiveness
of the Refinancing Amendments, the Required Lenders (after giving effect to the Refinancing Amendments);
(b) all
fees and expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent or any arranger pursuant to any fee
letter with the Borrower on or before the Second Amendment and Restatement Effective Date shall have been (or shall substantially contemporaneously
be) paid in full in cash (and in the case of expenses, to the extent invoiced at least three Business Days prior to the Second Amendment
and Restatement Effective Date or such shorter period agreed by the Borrower in its sole discretion);
(c) the
representations and warranties of each Loan Party set forth herein and in the Loan Documents shall be true and correct in all material
respects on and as of the Second Amendment and Restatement Effective Date; provided that, to the extent that such representations
and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date;
provided, further, that any representation and warranty that is qualified by materiality or reference to Material Adverse
Effect shall be true and correct in all respects, taking into account such materiality or reference to Material Adverse Effect, on the
Second Amendment and Restatement Effective Date or on such earlier date, as the case may be;
(d) at
the time of and immediately after giving effect to this Second Amendment and Restatement Agreement, no Default or Event of Default shall
have occurred and be continuing;
(e) the
Administrative Agent shall have received a certificate, dated the Second Amendment and Restatement Effective Date and signed by a Financial
Officer or the President or a Vice President of the Borrower, confirming compliance with the conditions set forth in paragraphs (c)
and (d) of this Section 6;
(f) the
Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Willkie
Farr & Gallagher LLP, special New York counsel for the Loan Parties (i) dated as of the Second Amendment and Restatement Effective
Date and (ii) in form and substance reasonably satisfactory to the Administrative Agent;
(g) the
Administrative Agent shall have received a copy of (i) organizational document of each Loan Party certified, to the extent applicable,
as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the responsible officers of
each Loan Party executing the Loan Documents to which it is a party, (iii) copies of resolutions of the board of directors or managers,
shareholders, partners, and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance
of Loan Documents to which it is a party, certified as of the Second Amendment and Restatement Effective Date by a secretary, an assistant
secretary or a responsible officer of such Loan Party as being in full force and effect without modification or amendment and (iv) a good
standing certificate (to the extent such concept, or an analogous concept, exists) from the applicable Governmental Authority of each
Loan Party’s jurisdiction of incorporation, organization or formation;
5
(h) The
Borrower shall have paid to the Administrative Agent, for the ratable distribution to each Consenting Lender with an outstanding Term
Loan or Term Commitment immediately prior to the Second Amendment and Restatement Effective Date but after the effectiveness of the Refinancing
Amendments who has executed and delivered to the Administrative Agent a Lender Addendum on or prior to 5:00 p.m. New York City time on
May 29, 2026, a consent fee (the “Consent Fee”) equal to 0.10% of the aggregate principal amount of such Term Loans
or Term Commitments held by such Consenting Lender immediately prior to the Second Amendment and Restatement Effective Date but after
the effectiveness of the Refinancing Amendments, which Consent Fee will be in all respects fully earned, due and payable on, and subject
to the occurrence of, the Second Amendment and Restatement Effective Date.
(i) the
Administrative Agent shall have received at least three Business Days prior to the Second Amendment and Restatement Effective Date, all
documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including, without limitation, the USA PATRIOT Act, that has been requested at least ten days prior
to the Second Amendment and Restatement Amendment Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity
customer” under the Beneficial Ownership Regulation and a Lender has requested in a written notice to the Borrower at least 10 days
prior to the Second Amendment and Restatement Effective Date a Beneficial Ownership Certification in relation to the Borrower, such Lender
shall have received such Beneficial Ownership Certification with respect to the Borrower at least three Business Days prior to the Second
Amendment and Restatement Effective Date (provided that, upon the execution and delivery by such Lender of its signature page to this
Second Amendment and Restatement Agreement, the conditions set forth in this clause (i) shall be deemed to be satisfied); and
(j) the
Lenders shall have received a certificate from a Financial Officer of Holdings, substantially in the form of Exhibit L to the Existing
Credit Agreement, certifying as to the solvency of Holdings and its Restricted Subsidiaries on a consolidated basis as of the Second Amendment
and Restatement Effective Date.
SECTION
7. Effect of Amendment.
(a) Except
as expressly set forth herein, this Second Amendment and Restatement Agreement shall not by implication or otherwise limit, impair, constitute
a waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Amended Credit Agreement
or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants
or agreements contained in the Amended Credit Agreement or any other provision of the Amended Credit Agreement or of any other Loan Document,
all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to
entitle the Borrower to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Amended Credit Agreement or any other Loan Document in similar or different circumstances, except
as expressly set forth herein.
(b) From
and after the Second Amendment and Restatement Effective Date, (i) each reference in the Amended Credit Agreement to “this Agreement”,
“hereunder”, “hereof”, “herein”, or words of like import, and each reference to the “Credit
Agreement” in any other Loan Document shall be deemed a reference to the Amended Credit Agreement and (ii) each reference in the
Amended and Restated Collateral Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”,
or words of like import, and each reference to the “Amended and Restated Collateral Agreement” or the “Collateral Agreement”
in any other Loan Document shall be deemed a reference to the Amended and Restated Collateral Agreement as amended by this Second Amendment
and Restatement Agreement.
(c) This Second Amendment
and Restatement Agreement shall constitute a “Loan Document” for all purposes of the Amended Credit Agreement and the other
Loan Documents.
6
SECTION
8. Expenses; Covenants. (a) The Borrower agrees to reimburse the Administrative Agent for its reasonable and documented
out-of-pocket expenses incurred by it in connection with this Second Amendment and Restatement Agreement, including the reasonable and
documented fees, charges and disbursements of Davis Polk & Wardwell LLP, counsel for the Administrative Agent.
(b) The
provisions of Section 9.03 (Expenses; Indemnity; Damage Waiver) of the Amended Credit Agreement are otherwise incorporated herein by reference,
mutatis mutandis.
(c) The
Borrower agrees to use commercially reasonable efforts to deliver, (i) within ten (10) Business Days following the Second Amendment Effective
Date (or such longer period as the Administrative Agent may reasonably agree to in writing), an updated Schedule III to the Collateral
Agreement reflecting information regarding the applicable grantors as of the date of delivery of such Schedule; and (ii) within forty
five (45) days following the effective date of the ADI Spin-Off Transaction, updated Schedules to the Amended Credit Agreement reflecting
information regarding the Borrower and its Subsidiaries as of, at the option of the Borrower, the effective date of the ADI Spin-Off Transaction
or the date of delivery of such Schedules.
(d) The
New Borrower (as “Borrower” under the Amended Credit Agreement) shall deliver, within forty five (45) days following the effective
date of the Co-Borrower Merger (or such longer period as the Administrative Agent may agree to in writing (including electronic mail)
(such approval or consent not to be unreasonably withheld, conditioned or delayed)), amended and restated Exhibits to the Amended Credit
Agreement reflecting that the New Borrower is the sole “Borrower” under the Amended Credit Agreement.
SECTION
9. Amendments; Severability. (a) Once effective, this Second Amendment and Restatement Agreement may not be amended
nor may any provision hereof be waived except pursuant to Section 9.02 of the Credit Agreement.
(b) If
any provision of this Second Amendment and Restatement Agreement is held to be illegal, invalid or unenforceable, the legality, validity
and enforceability of the remaining provisions of this Second Amendment and Restatement Agreement shall not be affected or impaired thereby.
The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION
10. Ratification and Reaffirmation. Each Loan Party party hereto hereby ratifies and reaffirms: (a) its Loan Document
Obligations in respect of the Amended Credit Agreement and each of the other Loan Documents to which it is a party and all of the covenants,
duties, indebtedness and liabilities under the Amended Credit Agreement and the other Loan Documents to which it is a party, (b) its prior
grant and the validity of the Liens granted by it pursuant to the Security Documents, with all such Liens continuing in full force and
effect after giving effect to this Second Amendment and Restatement Agreement and (c) the Liens and security interests created in favor
of the Administrative Agent for the benefit of the Secured Parties pursuant to each Security Document; which Liens shall continue to secure
the Obligations, in each case, on and subject to the terms and conditions set forth in the Amended Credit Agreement and the other Loan
Documents.
SECTION
11. GOVERNING LAW; Waiver of Jury Trial; Jurisdiction. THIS SECOND AMENDMENT AND RESTATEMENT AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK. The provisions of Sections 9.09 and 9.10 of the Amended Credit Agreement are incorporated herein by reference, mutatis mutandis.
7
SECTION
12. Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation
of this Second Amendment and Restatement Agreement.
SECTION
13. Counterparts. This Second Amendment and Restatement Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by facsimile or
other electronic imaging means of an executed counterpart of a signature page to this Second Amendment and Restatement Agreement shall
be effective as delivery of an original executed counterpart of this Second Amendment and Restatement Agreement. Delivery of an executed
counterpart of a signature page of this Second Amendment and Restatement Agreement that is an electronic signature transmitted by telecopy,
emailed pdf or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery
of a manually executed counterpart of this Second Amendment and Restatement Agreement. The words “execution,” “signed,”
“signature,” “delivery,” and words of like import in or relating to this Second Amendment and Restatement Agreement
shall be deemed to include electronic signatures, deliveries or the keeping of records in any electronic form (including deliveries by
telecopy, emailed pdf or any other electronic means that reproduces an image of an actual executed signature page), each of which shall
be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based
recordkeeping system, as the case may be, provided that nothing herein shall require the Administrative Agent to accept electronic signatures
in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting
the foregoing, (i) to the extent the Administrative Agent has agreed to accept any electronic signature, the Administrative Agent and
each of the Lenders shall be entitled to rely on such electronic signature purportedly given by or on behalf of, Holdings, U.S. HoldCo
1, U.S. HoldCo 2, the Borrower or any other Loan Party without further verification thereof and without any obligation to review the appearance
or form of any such electronic signature and (ii) upon the request of the Administrative Agent or any Lender, any electronic signature
shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, Holdings, U.S. HoldCo
1, U.S. HoldCo 2, the Borrower and each Loan Party party hereto hereby (i) agrees that, for all purposes, including without limitation,
in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative
Agent, the Lenders, Holdings, U.S. HoldCo 1, U.S. HoldCo 2, the Borrower and the Loan Parties, electronic signatures transmitted by telecopy,
emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page and/or any electronic images
of this Second Amendment and Restatement Agreement shall have the same legal effect, validity and enforceability as any paper original,
(ii) the Administrative Agent and each of the Lenders may, at its option, create one or more copies of this Second Amendment and Restatement
Agreement in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of such Person’s
business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and
shall have the same legal effect, validity and enforceability as a paper record), (iii) waives any argument, defense or right to contest
the legal effect, validity or enforceability of this Second Amendment and Restatement Agreement based solely on the lack of paper original
copies of this Second Amendment and Restatement Agreement, respectively, including with respect to any signature pages thereto and (iv)
waives any claim against any Lender-Related Person for any losses, claims, damages and liabilities arising solely from the Administrative
Agent’s and/or any Lender’s reliance on or use of electronic signatures and/or transmissions by telecopy, emailed pdf or any
other electronic means that reproduces an image of an actual executed signature page, including any such losses, claims, damages and liabilities
arising as a result of the failure of Holdings, U.S. HoldCo 1, U.S. HoldCo 2, the Borrower and/or any Loan Party to use any available
security measures in connection with the execution, delivery or transmission of any electronic signature.
SECTION
14. No Novation. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding
under the Existing Credit Agreement or instruments securing the same, which shall remain in full force and effect, except to any extent
modified hereby or by instruments executed concurrently herewith and except to the extent repaid as provided herein. Nothing implied in
this Second Amendment and Restatement Agreement or in any other document contemplated hereby shall discharge or release the Lien or priority
of any Security Document or any other security therefor or otherwise be construed as a release or other discharge of any of the Loan Parties
under any Loan Document (including, for the avoidance of doubt, all Obligations under the Amended Credit Agreement) from any of its obligations
and liabilities as a borrower, guarantor or pledgor under any of the Loan Documents (including, for the avoidance of doubt, all Obligations
under the Amended Credit Agreement), except, in each case, to any extent modified hereby and except to the extent repaid as provided herein.
[Remainder of page intentionally left blank]
8
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as
of the date first written above.
RESIDEO TECHNOLOGIES, INC., as Holdings
By:
/s/ Ian Schlegel
Name:
Ian Schlegel
Title:
Treasurer
RESIDEO HOLDING INC., as U.S. HoldCo 1
By:
/s/ Ian Schlegel
Name:
Ian Schlegel
Title:
Treasurer
RESIDEO INTERMEDIATE HOLDING INC., as US HoldCo 2
By:
/s/ Ian Schlegel
Name:
Ian Schlegel
Title:
Treasurer
ADI GLOBAL DISTRIBUTION LLC
ALARMNET, INC.
BRK BRANDS, LLC
SUNBRITE HOLDING CORPORATION
SUNBRITETV LLC
SNAP ONE, LLC
RESIDEO OVERSEAS, LLC
RESIDEO USA LLC
By:
/s/ Ian Schlegel
Name:
Ian Schlegel
Title:
Treasurer
[Signature Page to Second Amendment and Restatement
Agreement]
RESIDEO FUNDING INC.
By:
/s/ Ian Schlegel
Name:
Ian Schlegel
Title:
Treasurer
[Signature Page to Second Amendment and Restatement
Agreement]
SNAP ONE HOLDINGS CORP.
By:
/s/ Jeannine Lane
Name:
Jeannine Lane
Title:
President and Secretary
By:
/s/ Ian Schlegel
Name:
Ian Schlegel
Title:
Treasurer
[Signature Page to Second Amendment and Restatement
Agreement]
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and as a Lender
By:
/s/ Alain Moran
Name:
Alain Moran
Title:
Vice President
[Signature Page to Second Amendment and Restatement
Agreement]
BANK OF AMERICA, N.A.,
as Revolving Lender and Issuing Bank
By:
/s/ Kevin O’Sullivan
Name:
Kevin O’Sullivan
Title:
Vice President
[Signature Page to Second Amendment and Restatement
Agreement]
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Revolving Lender and Issuing Bank
By:
/s/ John Hancey
Name:
John Hancey
Title:
Managing Director
[Signature Page to Second Amendment and Restatement
Agreement]
BNP PARIBAS,
as Revolving Lender and Issuing Bank
By:
/s/ Michael Lefkowitz
Name:
Michael Lefkowitz
Title:
Director
By:
/s/ Matthew Beauvais
Name:
Matthew Beauvais
Title:
Director
[Signature Page to Second Amendment and Restatement
Agreement]
PNC BANK, NATIONAL ASSOCIATION,
as Revolving Lender and Issuing Bank
By:
/s/ Michael Cuccia
Name:
Michael Cuccia
Title:
Senior Vice President
[Signature Page to Second Amendment and Restatement
Agreement]
TRUIST BANK,
as Revolving Lender and Issuing Bank
By:
/s/ David Miller
Name:
David Miller
Title:
Director
[Signature Page to Second Amendment and Restatement
Agreement]
U.S. BANK NATIONAL ASSOCIATION,
as Revolving Lender and Issuing Bank
By:
/s/ James Austin
Name:
James Austin
Title:
Senior Vice President
[Signature Page to Second Amendment and Restatement
Agreement]
ROYAL BANK OF CANADA,
as Revolving Lender and Issuing Bank
By:
/s/ Richard Donnelly
Name:
Richard Donnelly
Title:
Director, Corporate Client Group – Finance
[Signature Page to Second Amendment and Restatement
Agreement]
CITIZENS BANK, N.A.,
as Revolving Lender and Issuing Bank
By:
/s/ William J. O’Meara
Name:
William J. O’Meara
Title:
Director
[Signature Page to Second Amendment and Restatement
Agreement]
CITIBANK, N.A.,
as a Lender
By:
/s/ Hans Lin
Name:
Hans Lin
Title:
Director
[Signature Page to Second Amendment and Restatement
Agreement]
HSBC BANK USA, N.A.,
as Revolving Lender
By:
/s/ Andrew Laughlin
Name:
Andrew Laughlin
Title:
Director
[Signature Page to Second Amendment and Restatement
Agreement]
KEYBANC CAPITAL MARKETS, INC.,
as Revolving Lender
By:
/s/ Sean P. Maclver
Name:
Sean P. Maclver
Title:
Managing Director
By:
/s/ Sean P. Maclver
Name:
Sean P. Maclver
Title:
Managing Director
[Signature Page to Second Amendment and Restatement
Agreement]
THE BANK OF NOVA SCOTIA,
as Revolving Lender
By:
/s/ Adnan Osman
Name:
Adnan Osman
Title:
Director
[Signature Page to Second Amendment and Restatement
Agreement]
BANCO BILBAO VIZCAYA ARGENTINA, S.A. NEW YORK BRANCH,
as Revolving Lender
By:
/s/ Brian Crowley
Name:
Brian Crowley
Title:
Managing Director
By:
/s/ Armen Semizian
Name:
Armen Semizian
Title:
Managing Director
[Signature Page to Second Amendment and Restatement
Agreement]
THE HUNTINGTON NATIONAL BANK,
as Revolving Lender
By:
/s/ Scott Pritchett
Name:
Scott Pritchett
Title:
Vice President
[Signature Page to Second Amendment and Restatement
Agreement]
CIBC BANK USA,
as Revolving Lender
By:
/s/ James Belletire
Name:
James Belletire
Title:
Managing Director
[Signature Page to Second Amendment and Restatement
Agreement]
Schedule 2.01
ANNEX A
LENDER ADDENDUM TO SECOND
AMENDMENT AND RESTATEMENT AGREEMENT
This Lender Addendum (this
“Lender Addendum”) is referred to in, and is a signature page to, the Second Amendment and Restatement, dated as of
June 4, 2026 (the “Second Amendment and Restatement Agreement”), to the Amended and Restated Credit Agreement dated
as of February 12, 2021 (as amended by that certain First Amendment to Amended and Restated Credit Agreement dated as of March 28, 2022,
as amended by that certain Second Amendment to Amended and Restated Credit Agreement, dated as of June 30, 2023, as amended by that certain
Third Amendment to Amended and Restated Credit Agreement dated as of May 24, 2024, as amended by that certain Fourth Amendment to Amended
and Restated Credit Agreement dated as of June 14, 2024, as amended by that certain Fifth Amendment to Amended and Restated Credit Agreement
dated as of December 16, 2024, as amended by that certain Sixth Amendment to Amended and Restated Credit Agreement, dated as of August
13, 2025, and as further amended, restated, supplemented or otherwise modified from time to time prior to the date hereof) among RESIDEO
TECHNOLOGIES, INC., a Delaware corporation, RESIDEO HOLDING INC., a Delaware corporation, RESIDEO INTERMEDIATE HOLDING INC., a Delaware
corporation, RESIDEO FUNDING INC., a Delaware corporation, the financial institutions party thereto as Lenders and Issuing Banks and JPMORGAN
CHASE BANK, N.A., as Administrative Agent. Capitalized terms used but not defined in this Lender Addendum have the meanings assigned to
such terms in the Second Amendment and Restatement Agreement.
By executing this Lender Addendum
as a Lender, the undersigned institution agrees to the terms of the Second Amendment and Restatement Agreement, the Amended Credit Agreement
and the other Loan Documents as amended by the Second Amendment and Restatement Agreement.
[NAME OF INSTITUTION]
By:
Name:
Title:
If a second signature is necessary:
By:
Name:
Title:
A-1
ANNEX B
AMENDED CREDIT AGREEMENT
[Attached]
CUSIP
(Initial Term Loans): 76090LAG9
CUSIP (Fourth Amendment Term Loans): 76090LAH7
CUSIP (Revolving Commitments): 76090LAJ3
CUSIP (Sixth
Amendment Term Loans): 76090LAM6
CONFORMED
COPY REFLECTING SECOND AMENDMENT
AMENDMENT
AND RESTATEMENT AGREEMENT
DATEDDATED
AS OF FEBRUARY 12JUNE
4, 20212026
FIRST AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF MARCH
28, 2022
SECOND AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JUNE
30, 2023
THIRD AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF MAY 24,
2024
FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JUNE
14, 2024
FIFTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF DECEMBER 16, 2024 SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT DATED
AS OF AUGUST 13, 2025
ADDED TEXT
SHOWN UNDERSCORED
DELETED
TEXT SHOWN STRIKETHROUGH
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
February
12 June 4,20212026,
among
RESIDEO TECHNOLOGIES, INC.,
as Holdings,
RESIDEO HOLDING INC.,
as U.S. HoldCo 1,
RESIDEO INTERMEDIATE HOLDING
INC.,
as U.S. HoldCo 2,
RESIDEO FUNDING INC.,
as Borrower,
the
Borrower prior to the Co-Borrower Merger,
RESIDEO
FUNDING II, LLC,
as
the Borrower from and after the Co-Borrower Merger,
The Lenders and Issuing Banks Party Hereto,
and
JPMORGAN CHASE BANK, N.A.,
as
Administrative Agent
JPMORGAN
CHASE BANK N.A., BANK OF AMERICA, N.A.,
BOFAWELLS
FARGO BANK, NATIONAL ASSOCIATION,
BNP PARIBAS, PNC CAPITAL MARKETS LLC, TRUIST
SECURITIES, INC.,
MORGAN STANLEY SENIOR
FUNDING, INC.,
U.S.
BANK NATIONAL ASSOCIATION, ROYAL BANK OF
CANADA, CITIZENS
BANK, N.A., CITIBANK N.A., HSBC
BANK
USA, NATIONAL ASSOCIATION, KEYBANC BNP
PARIBAS
SECURITIES CORP., ROYAL BANK OF CANADA,
U.S. BANK NATIONAL
ASSOCIATION,
PNC CAPITAL MARKETS LLC
and
TRUIST
SECURITIES, INC.INC, THE BANK OF NOVA SCOTIA,
BANCO
BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK
BRANCH,
THE HUNTINGTON NATIONAL BANK and CIBC
BANK
USA,
as Joint Lead Arrangers and Joint
Bookrunners
JPMORGAN
CHASE BANK, N.A., and
BOFA SECURITIES,
INC.,
as
Syndication Agents
JPMORGAN
CHASE BANK, N.A.,
as
Documentation Agentand
MORGAN STANLEY SENIOR FUNDING, INC.,
as Syndication
Agents
BNP PARIBAS SECURITIES
CORP.,
ROYAL BANK OF CANADA,
U.S. BANK
NATIONAL ASSOCIATION,
PNC
BANK, NATIONAL ASSOCIATION and
TRUIST BANK
as
Documentation Agents
TABLE OF CONTENTS
Page
ARTICLE I Definitions
1
SECTION 1.01.
Defined Terms
1
SECTION 1.02.
Classification of Loans and Borrowings
6770
SECTION 1.03.
Terms Generally
6770
SECTION 1.04.
Accounting Terms; GAAP; Borrower Representative
6870
SECTION 1.05.
Pro Forma Calculations
6870
SECTION 1.06.
Limited Condition Transaction
6871
SECTION 1.07.
Change in GAAP
7072
SECTION 1.08.
Delaware Divisions
7072
SECTION 1.09.
Interest Rates; Benchmark Notification.
7072
ARTICLE II The credits
7173
SECTION 2.01.
Commitments
7173
SECTION 2.02.
Loans and Borrowings
7173
SECTION 2.03.
Requests for Borrowings
7274
SECTION 2.04.
[Reserved]
7375
SECTION 2.05.
Letters of Credit
7375
SECTION 2.06.
Funding of Borrowings
7981
SECTION 2.07.
Interest Elections
7982
SECTION 2.08.
Termination and Reduction of Commitments
8183
SECTION 2.09.
Repayment of Loans; Evidence of Debt
8184
SECTION 2.10.
Amortization of Term Loans
8285
SECTION 2.11.
Prepayment of Loans
8687
SECTION 2.12.
Fees
8991
SECTION 2.13.
Interest
9092
SECTION 2.14.
Alternate Rate of Interest
9193
SECTION 2.15.
Increased Costs.
9495
SECTION 2.16.
Break Funding Payments
9597
SECTION 2.17.
Taxes
9697
SECTION 2.18.
Payments Generally; Pro Rata Treatment; Sharing of Setoffs
99101
SECTION 2.19.
Mitigation Obligations; Replacement of Lenders
100102
SECTION 2.20.
Defaulting Lenders
102103
SECTION 2.21.
Incremental Extensions of Credit
103106
SECTION 2.22.
Extension of Maturity Date
108110
SECTION 2.23.
Refinancing Facilities
110112
ARTICLE III Representations and
warranties
112114
SECTION 3.01.
Organization; Powers
112114
SECTION 3.02.
Authorization; Due Execution and Delivery; Enforceability
114
SECTION 3.03.
Governmental Approvals; No Conflicts
113114
i
SECTION 3.04.
Financial Condition; No Material Adverse Change
113114
SECTION 3.05.
Properties
113114
SECTION 3.06.
Litigation and Environmental Matters
114115
SECTION 3.07.
Compliance with Laws
114115
SECTION 3.08.
Sanctions; Anti-Corruption Laws
114115
SECTION 3.09.
Investment Company Status
115
SECTION 3.10.
Federal Reserve Regulations
115
SECTION 3.11.
Taxes
115115
SECTION 3.12.
ERISA
115116
SECTION 3.13.
Disclosure
115116
SECTION 3.14.
Subsidiaries
116
SECTION 3.15.
Solvency
116
SECTION 3.16.
Collateral Matters
116117
ARTICLE IV Conditions
117118
SECTION 4.01.
Conditions to Second Amendment and
Restatement Effective Date
117118
SECTION 4.02.
Each Credit Event
117118
ARTICLE V Affirmative covenants
119
SECTION 5.01.
Financial Statements and Other Information
118119
SECTION 5.02.
Notices of Material Events
120
SECTION 5.03.
Information Regarding Collateral
120121
SECTION 5.04.
Existence; Conduct of Business
120121
SECTION 5.05.
Payment of Taxes
120121
SECTION 5.06.
Maintenance of Properties
122
SECTION 5.07.
Insurance
121122
SECTION 5.08.
[Reserved]
121122
SECTION 5.09.
Books and Records; Inspection and Audit Rights
121122
SECTION 5.10.
Compliance with Laws
121122
SECTION 5.11.
Use of Proceeds; Letters of Credit
122
SECTION 5.12.
Additional Subsidiaries
122123
SECTION 5.13.
Further Assurances
124
SECTION 5.14.
Credit Ratings
123124
SECTION 5.15.
Post-Effective Date Matters
123124
SECTION 5.16.
[Reserved]
124125
SECTION 5.17.
Designation of Subsidiaries
124125
SECTION 5.18.
ADI Spin-Off Prepayment
125
ARTICLE VI Negative covenants
124126
SECTION 6.01.
Indebtedness; Certain Equity Securities
124126
SECTION 6.02.
Liens
130133
SECTION 6.03.
Fundamental Changes
133137
SECTION 6.04.
Investments, Loans, Advances, Guarantees and Acquisitions
134139
SECTION 6.05.
Asset Sales
138143
ii
SECTION 6.06.
Sale and Leaseback Transactions
140145
SECTION 6.07.
Hedging Agreements
140145
SECTION 6.08.
Restricted Payments; Certain Payments of Junior Indebtedness
140145
SECTION 6.09.
Transactions with Affiliates
143148
SECTION 6.10.
Restrictive Agreements
143149
SECTION 6.11.
Amendment of Material Documents, Etc
144150
SECTION 6.12.
Consolidated Interest Coverage Ratio
145150
SECTION 6.13.
Consolidated Total Leverage Ratio
145150
SECTION 6.14.
Changes in Fiscal Periods
145150
ARTICLE VII Events of default
145151
SECTION 7.01. Events of Default
145151
SECTION 7.02. Exclusion of Certain Subsidiaries
148154
ARTICLE VIII The administrative agent
148154
SECTION 8.01.
Appointment and Other Matters
148154
SECTION 8.02.
Administrative Agent’s Reliance, Indemnification, Etc.
151157
SECTION 8.03.
Successor Administrative Agent
153158
SECTION 8.04.
Acknowledgements of Lenders and Issuing Banks
153159
SECTION 8.05.
Collateral Matters
154160
SECTION 8.06.
Certain ERISA Matters
156162
ARTICLE IX Miscellaneous
157164
SECTION 9.01.
Notices
157164
SECTION 9.02.
Waivers; Amendments
160167
SECTION 9.03.
Expenses; Indemnity; Damage Waiver.
163169
SECTION 9.04.
Successors and Assigns
165171
SECTION 9.05.
Survival
171176
SECTION 9.06.
Counterparts; Integration; Effectiveness
171177
SECTION 9.07.
Severability
173177
SECTION 9.08.
Right of Setoff
173177
SECTION 9.09.
Governing Law; Jurisdiction; Consent to Service of Process
173178
SECTION 9.10.
WAIVER OF JURY TRIAL
174178
SECTION 9.11.
Headings
174179
SECTION 9.12.
Confidentiality
174179
SECTION 9.13.
Interest Rate Limitation
175180
SECTION 9.14.
Release of Liens and Guarantees
175180
SECTION 9.15.
USA PATRIOT Act Notice
176181
SECTION 9.16.
No Fiduciary Relationship
176181
SECTION 9.17.
Non-Public Information
177181
SECTION 9.18.
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
177182
SECTION 9.19.
Judgment Currency
178183
SECTION 9.20.
Cashless Settlement.
178183
SECTION 9.21.
Acknowledgement Regarding Any Supported QFCs
178183
iii
SCHEDULES:
Schedule 1.02 — Mortgaged Property
Schedule 1.04 — Existing Letters of Credit
Schedule 2.01 — Commitments
Schedule 3.14 — Subsidiaries
Schedule 5.15 — Post-Closing Undertakings
Schedule 6.01 — Existing Indebtedness
Schedule 6.02 — Existing Liens
Schedule 6.04 — Existing Investments
Schedule 6.05 — Proposed Asset Sales
Schedule 6.10 — Existing Restrictions
EXHIBITS:
Exhibit A
— Form of Assignment and Assumption
Exhibit B
— [Reserved]
Exhibit C
— Form of Amended
and Restated Collateral Agreement[Reserved]
Exhibit D
— Form of Perfection Certificate[Reserved]
Exhibit E
— Form of Amended
and Restated Guarantee Agreement[Reserved]
Exhibit F
— Form of Global Intercompany Note[Reserved]
Exhibit G
— Auction Procedures
Exhibit H
— Form of Affiliated Lender Assignment and Assumption
Exhibit I
— Form of Maturity Date Extension Request
Exhibit J-1
— Form of U.S. Tax Compliance Certificate for Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes
Exhibit J-2
— Form of U.S. Tax Compliance Certificate for Non-U.S. Participants that are Partnerships for U.S. Federal Income Tax Purposes
Exhibit J-3
— Form of U.S. Tax Compliance Certificate for Non-U.S. Participants that are not Partnerships for U.S. Federal Income Tax Purposes
Exhibit J-4
— Form of U.S. Tax Compliance Certificate for Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes
Exhibit K
— Form of Secured Supply Chain Financing Designation
Exhibit L
— Form of Solvency Certificate
Exhibit M
— Form of Borrowing Request
iv
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT dated as of February 12June
4, 20212026
(this “ Agreement”), among RESIDEO TECHNOLOGIES, INC., a Delaware corporation (“Holdings”), RESIDEO
HOLDING INC., a Delaware corporation (“U.S. HoldCo 1”), RESIDEO INTERMEDIATE HOLDING INC., a Delaware corporation
(“U.S. HoldCo 2”), RESIDEO FUNDING INC., a Delaware corporation (“BorrowerRFI”),
RESIDEO FUNDING II, LLC, a Delaware limited liability company (“RF II”), the LENDERS and ISSUING BANKS party hereto
and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
Pursuant
to the Second Amendment and Restatement Agreement and upon the terms
and subject to the satisfaction of the conditions set forth therein, the Existing Credit Agreement is being amended and restated in the
form of this Agreement (such terms and other capitalized terms used in these preliminary statements defined in Section 1.01 hereof).
The Lenders
are willing to continue to extend such
credit to the Borrower, and the Issuing Banks are willing to continue to
issue Letters of Credit for the account of the Borrower, on the terms and subject to the conditions set forth herein. Accordingly,
the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined
Terms. As used in this Agreement, the following terms have the meanings specified below:
“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
“Acceptable
Intercreditor Agreement” means a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative
Agent and the Borrower.
“Additional
Lender” has the meaning assigned to such term in
Section 2.21(c).
“Additional
Letter of Credit Facility” means any facility established by Holdings, the Borrower and/or any Restricted Subsidiary to obtain
letters of credit, bank guarantees, bankers’ acceptances or other instruments required by customers, suppliers or landlords or
otherwise required in the ordinary course of businessOrdinary
Course of Business.
“ADI
Spin-Off Credit Agreement” means that certain credit
agreement, expected to be dated on or around July 1, 2026, between (among others), ADI Global Distribution Funding LLC, as the borrower,
and JPMorgan Chase Bank, N.A., as the administrative agent.
“ADI
Spin-Off Date Actions” means, collectively, any actions necessary to effectuate the ADI Spin-Off Transaction occurring substantially
concurrently with the consummation of the ADI Spin-Off Transaction (and without regard to the actual consummation thereof).
1
“Additional
LenderADI Spin-Off Debt Basket” has the
meaning assigned to such term in Section 2.216.01(cxviii).
“Adjusted
CTLR PeriodADI Spin-Off Dispositions Basket”
has the meaning assigned to such term in Section 6.136.05(p).
“Adjusted
Daily Simple SOFR” means, an interest rate per annum equal to (a) Daily Simple SOFR, plus (b) the Term SOFR
Adjustment; provided that if the Adjusted
Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to
the Floor for the purposes of this Agreement.
“Adjusted
Term SOFR Rate” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR Rate for
such Interest Period plus (b) the Term SOFR Adjustment; provided that if the
Adjusted Term SOFR Rate as so determined shall ever be less than the Floor,
then the Adjusted Term SOFR Rate shall be deemed to be the Floor.
“ADI
Spin-Off Distribution” means the distribution paid to Holdings and/or its Subsidiaries with the proceeds of (i) a credit facility
to be entered into by certain of the ADI Spin-Off Entities in connection with the ADI Spin-Off Transaction and (ii) notes to be issued
by one or more of the ADI Spin-Off Entities in connection with the ADI Spin-Off Transaction.
“ADI
Spin-Off Entities” means ADI Global Distribution Inc., a
Delaware corporation, and its Subsidiaries, in each case, after giving
pro forma effect to the consummation of the ADI Spin-Off Transaction.
“ADI
Spin-Off Investment Basket” has the meaning assigned to such term in Section 6.04(w).
“ADI
Spin-Off Lien Basket” has the meaning assigned to such term
in Section 6.02(xiii).
“ADI
Spin-Off Negative Covenant Baskets” means, collectively, the ADI Spin-Off Debt Basket, the ADI Spin-Off Lien Basket, the ADI Spin-Off
Investment Basket, the ADI Spin-Off Dispositions Basket, the ADI Spin-Off RP Basket, the ADI Spin-Off RDP Basket and the ADI Spin-Off
Transactions with Affiliates Basket.
“ADI
Spin-Off Prepayment” means any prepayment of any Borrowing in connection with the
consummation of the ADI Spin-Off Transaction, including with the direct
or indirect proceeds received by the Loan Parties in connection with the ADI Spin-Off Transaction.
“ADI
Spin-Off RDP Basket” has the meaning assigned to such term in Section 6.09.
“ADI
Spin-Off RP Basket” has the meaning assigned to such term in Section 6.08(a)(i).
“ADI
Spin-Off Reorganization Actions” means, collectively, any reorganization transactions effected in contemplation of the ADI Spin-Off
Transaction occurring prior to the consummation of the ADI Spin-Off Transaction (and without regard to the actual consummation thereof).
2
“ADI
Spin-Off Transactions with Affiliates Basket” has the meaning assigned to such term in Section 6.08(b)(iii)
“ADI
Spin-Off Transaction” means the separation of Holdings’ ADI global distribution business from its products and solutions
business completed through a pro rata distribution of all of the outstanding shares of common stock of ADI Global Distribution Inc.,
a wholly-owned subsidiary of Holdings, to Holdings’ common stockholders and the making of a distribution by ADI Global Distribution
Inc., the proceeds of which shall be applied to voluntarily prepay the Term Loans.
“Adjusted
CTLR Period” has the meaning assigned to such term in Section 6.13.
“Administrative
Agent” means JPMCB (including its branches and affiliates), in its capacity as administrative agent and collateral agent hereunder
and under the other Loan Documents, and its successors in such capacity as provided in Article VIII.
“Administrative
Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.
“Affected
Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”
means, with respect to a specified Person, another Person that directly, or indirectly, Controls or is Controlled by or is under common
Control with the Person specified.
“Affiliated
Lender Assignment and Assumption” means an assignment and assumption entered into by a Lender and a Purchasing Borrower Party
(with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit
H or any other form approved by the Administrative Agent.
“Aggregate
Revolving Commitment” means, at any time, the sum of the Revolving Commitments of all the Revolving Lenders at such time.
“Aggregate
Revolving Exposure” means, at any time, the sum of the Revolving Exposures of all the Revolving Lenders at such time.
“Agreed
Currency” means dollars and each Permitted Foreign Currency.
“Agreement” has the meaning assigned to such
term in the introductory statement to this Agreement.
“Agreement Currency”
has the meaning assigned to such term in Section 9.19.
3
“Alternate
Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the
NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted Term SOFR
Rate for a one month Interest Period as published two (2) U.S. Government Securities Business Days prior to such day (or if such day
is not a U.S. Government Securities Business Day, the immediately preceding U.S. Government Securities Business Day) plus 1%; provided
that for the purpose of this definition, the Adjusted Term SOFR Rate for any day shall
be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the
Term SOFR Reference Rate, as specified by CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the
Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term
SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted
Term SOFR Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.14 (for
the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.14(b)), then the Alternate Base
Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance
of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than the Floor, such rate shall be deemed
to be the Floor for purposes of this Agreement.
“Alternative
Incremental Facility Debt” means any Indebtedness incurred by the Borrower in the form of one or more series of senior secured
notes, bonds or debentures and/or term loans secured on a pari passu basis with or junior basis to the Loans or senior unsecured notes
or senior subordinated notes or any bridge facility; provided that (i) if such Indebtedness is secured, such Indebtedness shall be secured
by the Collateral on a pari passu or junior basis with the Loan Document Obligations and is not secured by any property or assets of any
member of the Restricted Group other than the Collateral, (ii) such Indebtedness does not mature or have scheduled amortization or payments
of principal prior to the Latest Maturity Date (or in the case of Indebtedness secured on a junior basis to the Loan Document Obligations
or unsecured Indebtedness, the date that is 90 days after the Latest Maturity Date) at the time such Indebtedness is incurred (except,
in each case, upon the occurrence of an event of default, a change in control, an event of loss or an asset disposition or in the case
of Indebtedness secured by the Collateral on a pari passu basis with the Liens securing the Obligations, de minimis amortization not in
excess of 1.00% per annum); provided that the requirements set forth in this clause (ii) shall not apply to any Indebtedness (x) consisting
of a customary bridge facility so long as such bridge facility, subject to customary conditions, would either automatically be converted
into or required to be exchanged for permanent refinancing that does not mature earlier than the Latest Maturity Date or (y) incurred
in reliance on the Inside Maturity Exception, (iii) the mandatory prepayment provisions of any such Indebtedness shall not be more favorable
to the applicable lenders or creditors than those of the Term Loans unless (x) the Lenders of the Term Loans also receive the benefit
of such more favorable terms or (y) such provisions apply after the Latest Maturity Date at the time and (iv) such Indebtedness is not
guaranteed by any Subsidiaries other than the Loan Parties.
“Amended
and Restated Collateral Agreement” means thethat
certain Amended and Restated Collateral Agreement, dated as
of the Amendment and Restatement Effective
Date, as amended by the Second Amendment and Restatement Agreement and as may be further amended, restated, amended and restated, supplemented
or modified from time to time, by and among the Loan Parties and the Administrative Agent, substantially
in the form of Exhibit C, or any other collateral agreement reasonably requested (in accordance
with the Collateral and Guarantee Requirement) by the Administrative Agent.
“Amended
and Restated Guarantee Agreement” means thethat
certain Amended and Restated Guarantee Agreement dated as of February 12, 2021 by
and among the Administrative Agent and the Loan Parties from time to time party thereto,
substantially in the form of Exhibit E,
as may be amended, restated, amended and restated, supplemented or modified from time to time,
by and among the Administrative Agent and the Loan Parties from
time to time party thereto.
4
“Amendment
and Restatement Agreement” means the Amendment and Restatement Agreement, dated as of Amendment and Restatement Effective Date,
among the Loan Parties, the Lenders party thereto, the Administrative Agent and the Issuing Banks.
“Amendment
and Restatement Date Refinancing” means (i) repayment in full of all amounts outstanding under the Existing
Credit Agreement, and in each case all accrued interest thereon and other fees and amounts outstanding in respect thereof and (ii) termination
of the commitments thereunder.
“Amendment and Restatement
Effective Date” means February 12, 2021.
“Ancillary Document” has the meaning given to such term in Section
9.06(b).
“Anti-Corruption
Laws” means all laws, and regulations of any Governmental Authority applicable to the Borrower or any of its Affiliates from
time to time concerning or relating to bribery, corruption or anti-money laundering, including the Foreign Corrupt Practices Act of 1977,
as amended, and the rules and regulations thereunder (the “FCPA”), and the UK Bribery Act of 2010.
“Applicable
Adjustments” has the meaning given to such term in the definition of “Consolidated EBITDA”.
“Applicable Parties” has
the meaning given to such term in Section 9.01(d)(iii).
“Applicable Percentage”
means, at any time with respect to any Revolving Lender, the percentage of the Aggregate Revolving Commitment represented by such Lender’s
Revolving Commitment at such time (or, if the Revolving Commitments have terminated or expired, such Revolving lender’s share of
the total Revolving Exposure at that time); provided that, at any time any Revolving Lender shall be a Defaulting Lender, for purposes
of Section 2.20(c)(ii), “Applicable Percentage” shall mean the percentage of the total Revolving Commitments (disregarding
any such Defaulting Lender’s Revolving Commitment) represented by such Lender’s Revolving Commitment. If the Revolving Commitments
have terminated or expired, the Applicable Percentages shall be determined based upon the Revolving Commitments most recently in effect,
giving effect to any assignments of Revolving Loans and LC Exposures that occur after such termination or expiration and to any Lender’s
status as a Defaulting Lender at the time of determination.
“Applicable Rate”
means, for any day:
(a)
(i) with respect to any Loan that is an Initial Term Loan, 2.00% per annum in the case of Term Benchmark Loans and 1.00% per annum in
the case of ABR Loans, (ii) with respect to any Loan that is a Fourth Amendment Term Loan, 2.00%
per annum in the case of Term Benchmark Loans and 1.00% per annum in the case of ABR Loans and (iii) with respect to any Loan that is a Sixth Amendment Term Loanfrom
the Fourth Amendment Effective to but excluding the date of the consummation of the ADI Spin-Off Transaction, 2.00% per annum
in the case of Term Benchmark Loans and 1.00% per annum in the case of ABR Loans; and,
(iii) with respect to any Loan
that is a Sixth Amendment Term Loan,
from the Sixth Amendment Effective to but excluding the date of the consummation of the ADI Spin-Off Transaction, 2.00%
per annum in the case of Term Benchmark Loans and 1.00% per annum in the case of ABR Loans and (iv)
with respect to any Term
Loan that is outstanding after the ADI Spin-Off Transaction is consummated, from and including the date of the consummation of the ADI
Spin-Off Transaction, 2.25% per annum in the case of Term Benchmark Loans and 1.25% per annum in the case of ABR Loans; and
5
(b)
with respect to (i) any Revolving Loan and (ii) the commitment fees payable hereunder in respect of unused Revolving Commitments:
, the(A)
prior to the Second Amendment and Restatement Effective Date, the applicable rate per annum set forth below in the “Term
Benchmark Loans”, “ABR Loans” or “Commitment Fee” column, as applicable, based upon the Consolidated Total
Leverage Ratio as of the end of the fiscal quarter of Holdings for which consolidated financial statements have most recently been delivered
to the Administrative Agent pursuant to Section 5.01(a) or 5.01(b); provided that until the delivery of such consolidated
financial statements as of and for the second full fiscal quarter of Holdings after the Fourth Amendment Effective Date, the Applicable
Rate shall be that set forth below in Level II:
Level
Consolidated Total
Leverage Ratio
Term
Benchmark
Loans
ABR
Loans
Commitment
Fee
I
≥ 2.75 to 1.00
2.25 %
1.25 %
0.35 %
II
< 2.75 to 1.00 and ≥ 2.00 to 1.00
2.00 %
1.00 %
0.30 %
III
< 2.00 to 1.00 and ≥ 1.50 to 1.00
1.75 %
0.75 %
0.275 %
IV
< 1.50 to 1.00
1.50 %
0.50 %
0.25 %
(B)
from and after the Second Amendment and Restatement Effective Date, the applicable rate per annum set forth below in the “Term
Benchmark Loans”, “ABR Loans” or “Commitment Fee” column, as applicable, based upon the Consolidated Total
Leverage Ratio as of the end of the fiscal quarter of Holdings for which consolidated financial statements have most recently been delivered
to the Administrative Agent pursuant to Section 5.01(a) or 5.01(b); provided that until the first delivery of such consolidated financial
statements after the Second Amendment and Restatement Effective Date, the Applicable Rate shall be that set forth below in Level I:
Level
Consolidated
Total
Leverage Ratio
Term
Benchmark
Loans
ABR
Loans
Commitment
Fee
I
≥
2.50 to 1.00
2.00 %
1.00 %
0.35 %
II
<
2.50 to 1.00 and ≥ 1.50 to 1.00
1.75 %
0.75 %
0.30 %
III
<
1.50 to 1.00
1.50 %
0.50 %
0.25 %
6
For purposes of
the foregoing, each change in the Applicable Rate resulting from a change in the Consolidated Total Leverage Ratio shall be effective
during the period commencing on and including the date of delivery to the Administrative Agent pursuant to Section 5.01(a) or 5.01(b)
of the consolidated financial statements indicating such change and ending on the date immediately preceding the effective date of the
next such change; provided that the Consolidated Total Leverage Ratio shall be deemed to be in Level I at the option of the Administrative
Agent or at the request of the Required Lenders if Holdings fails to deliver the consolidated financial statements required to be delivered
by it pursuant to Section 5.01(a) or 5.01(b) or the certificate of a Financial Officer required to be delivered by it pursuant to Section
5.01(c) during the period from the expiration of the time for delivery thereof until such consolidated financial statements and such certificate
are delivered.
“Approved
Fund” means, with respect to any Lender or Eligible Assignee, any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in commercial loans and similar extensions of credit in the ordinary course of its activities and that
is administered, advised or managed by (a) such Lender or Eligible Assignee, (b) an Affiliate of such Lender or Eligible Assignee or (c)
an entity or an Affiliate of an entity that administers, advises or manages such Lender or Eligible Assignee.
“Arrangers”
means, collectively, JPMorgan Chase Bank, N.A., BofA Securities, Inc., Morgan Stanley Senior Funding,
Inc. JPMorgan Chase Bank N.A., Bank of America, N.A., Wells
Fargo Bank, National Association, BNP Paribas, PNC
Capital Markets LLC, Truist Securities Corp.,
Royal Bank of Canada,
Inc., U.S. Bank National Association, PNC Capital Markets LLC and
Truist Securities, Inc.Royal Bank of Canada,
Citizens Bank, N.A., Citibank N.A., HSBC Bank USA, National Association, Keybanc Capital Markets Inc, The Bank of Nova Scotia, Banco
Bilbao Vizcaya Argentaria, S.A. New York Branch, The Huntington National Bank and CIBC Bank USA, in their capacities as joint
lead arrangers and joint bookrunners for the credit facilities provided for herein.
“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any
Person whose consent is required by Section 9.04) and accepted by the Administrative Agent, substantially in the form of Exhibit A
or any other form (including electronic records generated by the use of an electronic platform) approved by the Administrative Agent.
“Auction”
means an auction pursuant to which a Purchasing Borrower Party offers to purchase Term Loans pursuant to the Auction Procedures.
“Auction
Manager” means any financial institution or advisor employed by the Borrower (whether or not an Affiliate of the Administrative
Agent) to act as an arranger in connection with any Auction; provided that the Borrower shall not designate the Administrative
Agent as the Auction Manager without the written consent of the Administrative Agent (it being understood and agreed that the Administrative
Agent shall be under no obligation to agree to act as the Auction Manager).
“Auction Procedures” means
the procedures set forth in Exhibit G.
“Auction
Purchase Offer” means an offer by a Purchasing Borrower Party to purchase Term Loans of one or more Classes pursuant to an auction
process conducted in accordance with the Auction Procedures and otherwise in accordance with Section 9.04(e).
7
“Audited
Financial Statements” the audited combined balance sheetssheet
of Holdings dated December 31, 20192024
and December 31, 20182025,
and the related audited combined statementsstatement
of operations, comprehensive income, equity (deficit) and cash flows as of and for the fiscal yearsyear
ended December 31, 2019, December 31, 20182024
and December 31, 20172025,
audited and reported on by Deloitte & Touche, LLP.
“Available Amount” means,
at any time,
(a) the sum of:
(i) the greater of (A) $100,000,000 and (B)
25% of LTM Consolidated EBITDA, plus
(ii)
50% of the Consolidated Net Income of Holdings for the period (taken as one accounting period) from the first day of the first
fiscal quarter of Holdings during which the Effective Date occurred to and including the last day of Holdings’ most recently ended
fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b), as applicable, or, in the case
such Consolidated Net Income for such period is a deficit, minus 100% of such deficit, plus
(iii)
the Net Proceeds from any sale or issuance of Equity Interests (other than Disqualified Equity Interests) of Holdings to the extent
such Net Proceeds are received by the Borrower, plus
(iv)
the aggregate amount of prepayments declined by the Term Lenders and retained by the Borrower pursuant to Section 2.11(f), plus
(v)
to the extent not already included in the calculation of Consolidated Net Income and without duplication of clause (vi) below and
of any amount deducted from the calculation of Investments pursuant to the definition of Investment, the amounts of any dividends in cash
or Permitted Investments or other returns, profits, distributions and similar amounts (whether by means of a sale or other disposition,
a repayment of a loan or advance, a dividend or otherwise) received by the Borrower and the Restricted Subsidiaries on Investments made
using the Available Amount, in each case up to the original amount of such Investments; plus
(vi)
to the extent not already included in the calculation of Consolidated Net Income and without duplication of clause (v) above and
of any amount deducted from the calculation of Investments pursuant to the definition of Investment, the amount of any Investment made
using the Available Amount in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary or that has been merged,
amalgamated or consolidated with or into the Borrower or any of the Restricted Subsidiaries (up to the lesser of (A) the fair market value
determined in good faith by the Borrower of the Investments of Holdings and the Restricted Subsidiaries in such Unrestricted Subsidiary
at the time of such re-designation or merger or consolidation and (B) the fair market value determined in good faith by the Borrower of
the original Investment by Holdings and the Restricted Subsidiaries in such Unrestricted Subsidiary); plus
(vii)
the Net Proceeds from any sale or issuance of Disqualified Equity Interests of Holdings or debt securities of Holdings (other
than Disqualified Equity Interests or debt securities issued or sold to the Borrower or a Restricted Subsidiary), in each case that have
been converted into or exchanged for Equity Interests of Holdings (other than Disqualified Equity Interests) to the extent such Net Proceeds
are received by the Borrower; minus
8
(b)
the sum since the Effective Date of (i) Investments, loans and advances previously or concurrently made in reliance on the Available
Amount, plus (ii) Restricted Payments previously or concurrently made in reliance on the Available Amount, plus (iii) Restricted
Debt Payments previously or concurrently made in reliance on the Available Amount.
Notwithstanding
the foregoing, in no event shall any payments by Honeywell or a subsidiary of Honeywell to Holdings or any of its Restricted Subsidiaries
made in connection with the Transactions be added to the Available Amount.
“Available
Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such
Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining
the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for
such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (f) of Section 2.14.
“Back
to Back Arrangements” shall mean any “back-to-back” transactions between or among Holdings, the Borrower or any Restricted
Subsidiary, in connection with facilitating any Hedging Agreements (provided that, for such arrangements to constitute Back to Back Arrangements,
such arrangements must be settled in cash, which for this purpose shall include netting of obligations, within five Business Days of
any corresponding settlement with the third party counterparty to such Hedging Agreement).
“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any
liability of anany
Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of
Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement
for such EEA Member Country from time to time whichthat
is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act
2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution
of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration
or other insolvency proceedings).
“Back
to Back Arrangements” shall mean any “back-to-back” transactions between or among Holdings, the
Borrower or any Restricted Subsidiary, in connection with facilitating any Hedging Agreements (provided that, for such arrangements to
constitute Back to Back Arrangements, such arrangements must be settled in cash, which for this purpose shall include netting of obligations,
within five Business Days of any corresponding settlement with the third party counterparty to such Hedging Agreement).
9
“Bankruptcy
Event” means, with respect to any Person, that such Person has become the subject of a bankruptcy, insolvency proceeding or
Bail-In Action, or has had a receiver, conservator, trustee, administrator, custodian, examiner, assignee for the benefit of creditors
or similar Person charged with the reorganization or liquidation of its business appointed for it, in the good faith determination of
the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in, any such
proceeding or appointment or has become the subject of a Bail-In Action; provided that a Bankruptcy Event shall not result solely
by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority; provided
further that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within
the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such
Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Benchmark”
means, initially, the Term SOFR Reference
Rate; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have/has
occurred with respect to the Term SOFR Reference
Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that
such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.14.
“Benchmark
Replacement” means, for any Available Tenorwith
respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrative
Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in a Permitted Foreign Currency,
“Benchmark Replacement” shall mean the alternative set forth in (2) below:
(1)
the Adjusted Daily Simple SOFR; or
(2)
the sum of: (a) the alternate
benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement
for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or
recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii)
any evolving or then-prevailing market convention for determining a benchmark rate as a replacement forto
the then-current Benchmark for syndicated credit facilities denominated in the applicable Agreed Currency at such time and (b) the related
Benchmark Replacement Adjustment.
If the Benchmark Replacement as
determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor
for the purposes of this Agreement and the other Loan Documents.
“Benchmark
Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement
for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark
Replacement, the spread adjustment, or method for calculating or determining such spread
adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower for
the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment,
or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted
Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date
and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating
or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for
syndicated credit facilities denominated in the applicable Agreed Currency at such time.
10
“Benchmark
Replacement Conforming Changes” means, with respect to either the use or administration of Term SOFR Rate, or the use, administration,
adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the
definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “U.S. Government
Securities Business Day,” the definition of “Interest Period,” or any similar or analogous definition (or the addition
of a concept of “Interest Period”) timing and frequency of determining rates and making payments of interest, timing of borrowing
requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and
other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption
and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially
consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively
feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists,
in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration
of this Agreement and the other Loan Documents).
“Benchmark
Replacement Date” means, with respect to any Benchmark,
the earliest to occur of the following events with respect to suchthe
then-current Benchmark:
(1)
in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the
public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the
published component used in the calculation thereof) permanently or indefinitely ceases to provide such
Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component
thereof); or
(2)
in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark
(or the published component used in the calculation thereof) has been or, if such Benchmark is a term rate, all Available Tenors of such
Benchmark (or such component thereof) have been determined and announced
by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no
longer representativenon-representative; provided,
that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause
(3) and even if such Benchmark (or such component thereof) or, if
such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt,
(i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier
than, the Reference Time in respect of any determination, the Benchmark Replacement Date will
be deemed to have occurred prior to the Reference Time for such determination and (ii)if
such Benchmark is a term rate, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause
(1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all
then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
11
“Benchmark
Transition Event” means, with respect to any Benchmark,
the occurrence of one or more of the following events with respect to suchthe
then-current Benchmark:
(1)
a public statement or
publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation
thereof) announcing that such administrator has ceased or will cease to provide such
Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component
thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator
that will continue to provide such Benchmark (or such component thereof)
or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof);
(2)
a public
statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component
used in the calculation thereof), the Federal Reserve Board of
Governors, the NYFRBFederal
Reserve Bank of New York, the CME Term SOFR Administrator, an insolvency official with jurisdiction over the administrator for
such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component)
or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component),
in each case which states that the administrator of such Benchmark (or such component)
has ceased or will cease to provide such Benchmark (or such component thereof)
or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely;,
provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide
such Benchmark (or such component thereof) or, if such Benchmark is a term
rate, any Available Tenor of such Benchmark (or such component thereof); or
(3)
a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof) announcing that such Benchmark
(or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof)
are no longernot, or as
of a specified future date will not be, representative.
For the avoidance of doubt,
if such Benchmark is a term rate, a “Benchmark Transition Event”
will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has
occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark
Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark
Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if,
at such time, no Benchmark Replacement has replaced suchthe
then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14 and (y) ending at the time
that a Benchmark Replacement has replaced suchthe
then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14.
“Beneficial
Ownership Certification” means a certification regarding individual beneficial ownership solely to the extent expressly required
by 31 C.F.R. § 1010.230 (“Beneficial Ownership Regulation”).
12
“Beneficial
Ownership Regulation” has the meaning specified in the definition of Beneficial Ownership Certification.
“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 to which Section 4975 of the Code applies, and (c) any Person
whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the
Code) the assets of any such “employee benefit plan” or “plan”.
“BHC
Act Affiliate” of a party shall meanmeans
an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Board
of Governors” means the Board of Governors of the Federal Reserve System of the United States of America.
“Borrower”
has the meaning assigned to such term in the
introductory statement to this Agreementmeans, (a) prior
to the Co-Borrower Merger, RFI, and (b) from and after the Co-Borrower Merger, RF II.
“Borrowing”
means Loans of the same Class, Type and currency, made, converted or continued on the same date and, in the case of Term Benchmark Loans,
as to which a single Interest Period is in effect.
“Borrowing
Minimum” means (a) in the case of a Term Benchmark Borrowing, $5,000,000 and (b) in the case of an ABR Borrowing,
$1,000,000.
“Borrowing
Multiple” means (a) in the case of a Term Benchmark Borrowing denominated in dollars, $500,000 and (b) in the case of an ABR
Borrowing, $100,000.
“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03, which shall be substantially in the
form of Exhibit M (or such other form approved by the Administrative Agent and otherwise consistent with the requirements of Section 2.03).
“Business Day” means any day that is not a Saturday, a Sunday or any other day on which
commercial banks in New York City are authorized or required by law to remain closed; provided that, in addition to the foregoing, in
relation to Loans referencing the Adjusted Term SOFR Rate and any interest rate settings,
fundings, disbursements, settlements or payments of any such Loans referencing the Adjusted Term
SOFR Rate or any other dealings of such Loans referencing the Adjusted Term SOFR Rate,
any such day that is a U.S. Government Securities Business Day.
“Capital
Expenditures” means, for any period, (a) the additions to property, plant and equipment and other capital expenditures of
the Restricted Group that are (or should be) set forth in a consolidated statement of cash flows of Holdings for such period
prepared in accordance with GAAP and (b) Capital Lease Obligations incurred by the Restricted Group during such period, but
excluding in each case any such expenditure (i) constituting reinvestment of the Net Proceeds of any event described in clause (a)
or (b) of the definition of the term “Prepayment Event”, to the extent permitted by Section 2.11(c), (ii) made by the
Restricted Group to effect leasehold improvements to any property leased by the Restricted Group as lessee, to the extent that such
expenses have been reimbursed by the landlord, (iii) in the form of a substantially contemporaneous exchange of similar property,
plant, equipment or other capital assets, except to the extent of cash or other consideration (other than the assets so exchanged),
if any, paid or payable by the Restricted Group and (iv) made with the Net Proceeds from the issuance of Qualified Equity
Interests.
13
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other
amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital or
finance leases on a balance sheet of such Person under GAAP (subject to the provisions of Section 1.04), and the amount of such
obligations shall be the capitalized amount thereof determined in accordance with GAAP (subject to the provisions of Section 1.04).
“Captive
Insurance Subsidiary” means a Subsidiary of Holdings established for the purpose of, and to be engaged solely in the business
of, insuring the businesses or facilities owned or operated by Holdings or any of its Subsidiaries or joint ventures.
“Cash
Management Financing Facilities” has the meaning assigned to such term in the definition of “Secured Cash Management Obligations”.
“Cash
Management Services” means the treasury management services (including controlled disbursements, zero balance arrangements,
cash sweeps, automated clearinghouse transactions, return items, overdrafts, single entity or multi-entity multicurrency notional pooling
structures, temporary advances, interest and fees and interstate depository network services), netting services, employee credit or purchase
card programs and similar programs, in each case provided to Holdings, the Borrower or any Restricted Subsidiary.
“Change
in Control” means (a) Holdings ceases to own all of the Equity Interests of U.S. HoldCo 2 and the Borrower; (b) the acquisition
of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the
rules of the SEC thereunder) of 35% or more of the Voting Equity Interests in Holdings; provided, however, that this clause (b)
shall not include any transaction where (x) Holdings becomes a direct or indirect wholly owned subsidiary of a holding company, and (y)
the direct or indirect holders of the Voting Equity Interests of such holding company immediately following that transaction are substantially
the same as the holders of Holding’s Voting Equity Interests immediately prior to that transaction; or (c) the occurrence of a “Change
in Control” as defined in the Senior Notes Documents.
For purposes of
this definition, (i) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act and (ii)
the phrase Person or “group” is within the meaning of Section 13(d) or 14(d) of the Exchange Act, but excluding any employee
benefit plan of such Person or “group” and its subsidiaries and any Person acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan.
“Change
in Law” means the occurrence, after the Second Amendment
and Restatement Effective Date (or with respect to any Lender, if later, the date on which such Lender becomes a Lender), 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, (i) the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, rules, guidelines or directives promulgated thereunder or issued in connection therewith and (ii)
all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States of America or foreign regulatory authorities, in each case
pursuant to Basel III, in each case shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted,
promulgated or issued.
14
“Charges” has the meaning
assigned to such term in Section 9.13.
“Class”,
when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans, Initial Term Loans, Fourth Amendment Term Loans, Sixth Amendment Term Loans, Incremental Revolving Loans or Incremental Term Loans,
(b) any Commitment, refers to whether such Commitment is a Revolving Commitment, an Initial Term Commitment, a Fourth Amendment Term Commitment,
a Sixth Amendment Term Commitment, a Commitment in respect of any Incremental Revolving Loans or a Commitment in respect of any Incremental
Term Loans and (c) any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class. Incremental
Revolving Loans and Incremental Term Loans that have different terms and conditions (together with the Commitments in respect thereof)
shall be construed to be in different Classes.
“CME
Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured
Overnight Financing Rate (SOFR) (or a successor administrator).
“Code”
means the Internal Revenue Code of 1986, as amended.
“Covered Entity”
means any of the following:
(a)
a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(b)
a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(c)
a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Collateral”
means any and all assets, whether real or personal, tangible or intangible, on which Liens are purported to be granted pursuant to the
Security Documents as security for the Obligations, but excluding, for the avoidance of doubt, the Excluded Property.
“Collateral and Guarantee Requirement”
means, at any time, the requirement
that:
(a) the
Administrative Agent shall have received from Holdings, each other Loan Party and each Designated Subsidiary (i) a counterpart of
each Security Document to which such Person is a party duly executed and delivered on behalf of such Person or (ii) in the case of
any Subsidiary that becomes a Loan Party or a Designated Subsidiary after the Second
Amendment and Restatement Effective Date, a supplement to the Amended and Restated Collateral Agreement in substantially the form
attached as Exhibit I thereto, a supplement to the Amended and Restated Guarantee Agreement in substantially the form attached as
Exhibit I thereto, a Patent Security Agreement, Trademark Security Agreement and/or Copyright Security Agreement (each as defined in
the Amended and Restated Collateral Agreement, and to the extent applicable) and other security documents reasonably requested by
the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Security
Documents in effect on the Second Amendment and Restatement
Effective Date), duly executed and delivered on behalf of such Person, in each case, together with opinions and documents of the
type referred to in Sections 4.01(b) and (c) with respect to such Person as may be reasonably requested by the Administrative
Agent;
15
(b)
(i) all outstanding Equity Interests
(other than any Equity Interest constituting Excluded Property) of the Borrower and each Restricted Subsidiary that is a Material Subsidiary,
in each case owned by any Loan Party, shall have been pledged pursuant to the Amended and Restated Collateral Agreement; provided
that the Loan Parties shall not be required to pledge Excluded Property and (ii) the Administrative Agent shall, to the extent required
by the Amended and Restated Collateral Agreement, have received certificates or other instruments representing all such Equity Interests
of any Restricted Subsidiary (other than any Equity Interest constituting Excluded Property or,
from and after the Second Amendment and Restatement Effective Date, Equity Interests in any ADI Spin-Off Entities) held by any
Loan Party, together with undated stock powers or other appropriate instruments of transfer with respect thereto endorsed in blank (to
the extent applicable and provided that no Loan Party shall have any obligation to deliver a certificate or other instrument representing
any such Equity Interest if such Equity Interest is uncertificated);
(c)(i)
all Indebtedness of Holdings, the Borrower and each Subsidiary that is owing to any Loan Party shall be evidenced by, at the Loan Party’s
option, a Global Intercompany Note and/or one or more standalone
promissory notes, and shall be Collateral pursuant to the applicable Security Documents; and (ii) the Administrative Agent shall have
received the Global Intercompany Note and, solely to the extent the applicable
Indebtedness is not also evidenced by the Global Intercompany Note, all such promissory notes with a principal amount of $20,000,000
or more, together with undated instruments of transfer with respect thereto endorsed in blank;
(d)
all financing statements and other
appropriate filings or recordings, including Uniform Commercial Code financing statements, required by law or specified in the Security
Documents to be filed, registered or recorded on the Effective Date under the Existing Credit Agreement
or theor prior to the Second Amendment and Restatement
Effective Date shall have been so filed, registered or recorded or delivered to the Administrative Agent for such filing, registration
or recording;
16
(e) the
Administrative Agent shall have received (i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property (provided that if the Mortgaged Property is in a jurisdiction that imposes
a mortgage recording or similar tax on the amount secured by such Mortgage, then the amount secured by such Mortgage shall be
limited to the fair market value, as reasonably determined by Holdings in good faith, of such Mortgaged Property), (ii) a policy or
policies of title insurance issued by a nationally recognized title insurance company insuring the Lien of each such Mortgage as a
valid and enforceable first Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted
by Section 6.02, together with such endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request to
the extent available in the applicable jurisdiction at commercially reasonable rates (it being agreed that the Administrative Agent
shall accept zoning reports from a nationally recognized zoning company in lieu of zoning endorsements to such title insurance
policies), in an amount equal to the fair market value of such Mortgaged Property as reasonably determined by Holdings in good
faith, provided that in no event will Holdings be required to obtain independent appraisals or other third-party valuations
of such Mortgaged Property, unless required by FIRREA or other applicable law, provided, however, Holdings shall
provide to the title company such supporting information with respect to its determination of Fair Market Value as may be reasonably
required by the title company, (iii) with respect to each Mortgaged Property located in the United States, a completed
“Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination (together with a notice about
special flood hazard area status and flood disaster assistance, which, if applicable, shall be duly executed by the applicable Loan
Party relating to such Mortgaged Property), and, if any such Mortgaged Property is located in an area determined by the Federal
Emergency Management Agency to have special flood hazards, evidence of such flood insurance as may be required under applicable law,
including Regulation H of the Board of Governors and (iv) such customary surveys (or existing surveys together with no-change
affidavits of such Mortgaged Property or survey alternatives, including express maps), abstracts, legal opinions, title documents
and other documents as the Administrative Agent or the Required Lenders may reasonably request with respect to any such Mortgage or
Mortgaged Property; provided that (x) the requirements of the foregoing clauses (i), (ii), (iv) and (v) shall be completed on
or before the date that is 90 days after the Second Amendment
and Restatement Effective Date (or such longer period as the Administrative Agent may, in its reasonable discretion, agree to in
writing (such approval or consent not to be unreasonably withheld or delayed)) in accordance with Section 5.15, (y) legal opinions
referred to in the foregoing clause (iv) shall be limited to the purposes of obtaining customary legal opinions from counsel
qualified to opine in the jurisdiction where such Mortgaged Property is located regarding solely to the enforceability of the
Mortgage for such Mortgaged Property and such other customary matters as may be in form and substance reasonably satisfactory to the
Administrative Agent; and (z) no delivery of new surveys shall be required for any Mortgaged Property where the title company will
issue a lender’s title policy with the standard survey exception omitted from such title policy and affirmative endorsements
that require a survey; and
(f)
except as otherwise provided for in the Security Documents, each Loan Party shall have obtained all consents and approvals required
to be obtained by it in connection with the execution and delivery of all Security Documents to which it is a party, the performance of
its obligations thereunder and the granting by it of the Liens thereunder.
Notwithstanding
anything to the contrary, subject to the proviso set forth in the following sentence, no Loan Party shall be required, nor shall the
Administrative Agent be authorized, (i) to perfect pledges, security interests and mortgages of Collateral of Loan Parties by any means
other than by (A) filings pursuant to the Uniform Commercial Code, in the office of the Secretary of State (or similar central filing
office) of the relevant jurisdiction where the grantor is located (as determined pursuant to the Uniform Commercial Code) and filings
in the applicable real estate records with respect to Mortgaged Properties, (B) filings in the United States Patent and Trademark Office
and the United States Copyright Office with respect to Intellectual Property as expressly required in the Security Documents, and (C)
delivery to the Administrative Agent, to be held in its possession, of the Global Intercompany Note and,
solely to the extent the applicable Indebtedness is not also evidenced by the Global Intercompany Note, all Collateral consisting
of intercompany notes in a principal amount of $20,000,000 or more, owed by a single obligor, stock certificates of Restricted Subsidiaries
(other than, from and after the Second Amendment and Restatement Effective
Date, any ADI Spin-Off Entities) and instruments, in each case as expressly required in the Security Documents or (ii) to enter
into any control agreement with respect to any cash and Permitted Investments, other deposit accounts, securities accounts or commodities
accounts, in each case to the extent in the name of a Loan Party and held or located in the United States. For the avoidance of doubt,
and notwithstanding anything to the contrary, including the foregoing, (x) no actions (including filings or searches) shall be required
in order to create or perfect any security interest in any assets of the Loan Parties located outside of the United States (including
any Intellectual Property registered or applied-for in, or otherwise located, protected or arising under the laws of any jurisdiction
outside the United States) and (y) no foreign law security or pledge agreements or foreign law mortgages or deeds shall be required outside
of the United States with respect to any Loan Party.
17
Notwithstanding
the foregoing and subject to the last paragraph of Section 6.02, no Loan Party shall be required to deliver a Mortgage with respect to
the Golden Valley Property.
“Commitment”
means with respect to any Lender, such Lender’s Revolving Commitment, Initial Term Commitment, Fourth Amendment Term Commitment,
Sixth Amendment Term Commitment, commitment in respect of any Incremental Revolving Loans or commitment in respect of any Incremental
Term Loans or any combination thereof (as the context requires).
“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.) and any successor statute.
“Communications”
means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party
pursuant to this Agreement or any other Loan Document or the transactions contemplated herein or therein that is distributed to the Administrative
Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to Section 9.01, including through the Platform.
“Connection
Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise
Taxes or branch profits Taxes.
“Consenting
Lender” has the meaning assigned to such term in Section 2.22(a). “Consolidated Debt” means, as of any
date, the aggregate principal amount of Indebtedness of the type specified in the following clauses of the definition of
“Indebtedness”: clause (a) (excluding Indebtedness of the type set forth in Section 6.01(a)(ix) that is non-recourse to
Holdings, the Borrower and the Restricted Subsidiaries and excluding any Excluded Refinanced Debt), clause (b), clause (e) (but only
to the extent supporting Indebtedness of the types specified in clauses (a), (b) and (g) of the definition thereof), clause (f) (but
only to the extent supporting Indebtedness of the types specified in clauses (a), (b) and (g) of the definition thereof), clause
(g), clause (h) (but only to the extent drawn and unreimbursed after one Business Day) and clause (k), in each case relating to the
Restricted Group outstanding as of such date determined on a consolidated basis; provided that in no event shall Supply Chain
Financing be included in the calculation of Consolidated Debt.
18
“Consolidated
EBITDA” means, for any period, Consolidated Net Income for such period plus
(a) without
duplication and to the extent deducted in determining such Consolidated Net Income for such period, the sum of:
(i)
total interest expense for such period, and, to the extent not reflected in such total interest expense, the sum of (A) premium
payments, debt discount, fees, charges and related expenses incurred in connection with borrowed money (including capitalized
interest) or in connection with the deferred purchase price of assets plus (B) the portion of rent expense with respect to such
period under Capital Leases that is treated as interest expense in accordance with GAAP, plus (C) any losses on hedging obligations
or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such
hedging obligations or such derivative instruments, plus (D) bank and letter of credit fees and costs of surety bonds in connection
with financing activities, plus (E) any commissions, discounts, yield and other fees and charges (including any interest expense)
related to any Permitted Receivables Facility, plus (F) amortization or write-off of deferred financing fees, debt issuance costs,
debt discount or premium, terminated hedging obligations and other commissions, financing fees and expenses and, adjusted, to the
extent included, to exclude any refunds or similar credits received in connection with the purchasing or procurement of goods or
services under any purchasing card or similar program,
(ii)
provision for Taxes based on income, profits, revenue or capital for such period, including, without limitation, state, franchise,
excise, gross receipts, value added, margins, and similar taxes and foreign withholding taxes (including penalties and interest related
to taxes or arising from tax examinations) and, without duplication of the foregoing, any payments to any direct or indirect parent in
respect of such taxes (including, without limitation, the amount of any distributions in respect of the foregoing items pursuant to Section
6.08(a)(xiii)),
(iii) depreciation and amortization expense for such period,
(iv)
[reserved],
(iv)
(A) costs and expenses incurred in connection with the ADI Spin-Off Reorganization Actions and the ADI Spin-Off Transaction,
including but not limited to severance costs, relocation costs, repositioning and other restructuring costs, integration and
facilities’ opening costs and other business optimization expenses and operating improvements and establishment costs,
recruiting fees, signing costs, retention or completion bonuses, transition costs, costs related to closure/consolidation of
facilities, internal costs in respect of ADI Spin-Off Reorganization Action and ADI Spin-Off Transaction related initiatives and
curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension
liabilities), contract terminations and professional and consulting fees incurred in connection with any of the foregoing, in each
case incurred in connection with ADI Spin-Off Reorganization Actions and the ADI Spin-Off Transaction during such period, and (B)
“run rate” cost savings, operating expense reductions, business optimization activities improvements (but excluding
“run rate” Consolidated EBITDA attributable to projected increases in revenues) and similar initiatives and similar
synergies (excluding revenue synergies), in each case, in connection with the ADI Spin-Off Reorganization Actions and the ADI
Spin-Off Transactions that are factually supportable and
have been realized or are reasonably expected to be realized within 24 months following the applicable ADI Spin-Off Reorganization
Action and the ADI Spin-Off Transaction, and calculated on a Pro Forma Basis as though such synergies, cost savings, expense
reductions, other operating changes, optimizations and similar initiatives had been realized (or commenced, acquired or created, as
applicable) on the first day of such period), net of the amount of actual benefits
realized during such period from such actions,
19
(v) fees,
costs and expenses incurred during such period in connection with any proposed or actual permitted merger, acquisition, Investment,
asset sale, other disposition or capital markets or financing transaction, without regard to the consummation thereof,
(vi) unusual,
non-recurring or exceptional expenses, losses or charges incurred during such period.
(vii) integration
costs, transition costs, consolidation and closing costs for facilities, costs incurred in connection with any non-recurring
strategic initiatives, acquisitions and non-recurring Intellectual Property development at any time, other business optimization
expenses (including costs and expenses relating to business optimization programs, new systems design, technology upgrades and
implementation costs), severance costs, project start-up costs and repositioning and other restructuring charges, carve-out related
items, accruals or reserves (including restructuring costs related to acquisitions at any time and to closure/consolidation of
facilities, retention charges, systems establishment costs and excess pension charges) incurred during such period,
(viii) any
non-cash charges, losses or expenses for such period except to the extent representing an accrual for future cash outlays (but
excluding any non-cash charge, loss or expense in respect of an item that was included in Consolidated Net Income in a prior period
and any non-cash charge, loss or expense that relates to the write-down or write-off of inventory, other than any write-down or
write-off of inventory as a result of purchase accounting adjustments in respect of any acquisition permitted by the credit
facilities provided for under this Agreement),
(ix)
any non-cash loss attributable to the mark to market movement in the valuation of any Equity Interests, and hedging obligations or
other derivative instruments;
(x)
(A) any losses relating to amounts paid in cash prior to the stated settlement date of any hedging obligation that has been
reflected in Consolidated Net Income for such period, (B) any losses during such period attributable to early extinguishment of
indebtedness or obligations under any Hedging Agreement and (C) any gain relating to hedging obligations associated with
transactions realized in the current period that has been reflected in Consolidated Net Income in prior periods and excluded from
Consolidated EBITDA pursuant to clauses (b)(iii) below,
(xi)
any losses during such period resulting from the sale or disposition of any asset outside the ordinary course of business,
(xii)
other add-backs and adjustments of the type set forth in (x) the Lender Presentation and/or (y) the Form 10 incurred during such
period; provided, that any add-backs and adjustments made pursuant to this clause (xii) for any period shall not exceed, together
with any amounts added back pursuant to clause (b) of the definition of “Pro Forma Basis” for such period, 20% of Consolidated
EBITDA in the aggregate for such period (determined prior to the adjustments contemplated by such clause (b), and
20
(xiii)
“run rate” cost savings, operating expense reductions, business optimization activities improvements (but excluding
“run rate” Consolidated EBITDA attributable to projected increases in revenues) and similar initiatives and similar
synergies, in each case, that are factually supportable and have been realized or are reasonably expected to be realized within 24
months following (i) any acquisition (including the commencement of activities constituting a business), (ii) disposition (including
the termination or discontinuance of activities constituting a business) of business entities or of properties or assets
constituting a division or line of business, (iii) the IRA Termination and/or (iv) any other operational change, optimization or
similar initiative (including, to the extent applicable, in connection with any restructuring) (which, in the case of each of
clauses (i) – (iv) above, will be added to Consolidated EBITDA as so projected until fully realized (or if earlier, the time
when such cost savings, operating expense reductions, business and product optimization activities and similar initiatives and
similar synergies shall cease to be reasonably expected to be realized within such 24 months), and calculated on a Pro Forma Basis
as though such synergies, cost savings, expense reductions, other operating changes, optimizations and similar initiatives had been
realized (or commenced, acquired or created, as applicable) on the first day of such period), net of the amount of actual benefits
realized during such period from such actions; provided that any add-backs and adjustments made pursuant to this clause
(xiii) for any period (excluding any addbacks and adjustments pursuant to this clause (xiii) with respect to the IRA Termination,
which shall be uncapped) shall not exceed, together with any amounts added back pursuant to clause (xii) above for such period and
any amounts added back pursuant to clause (b) of the definition of “Pro Forma Basis” for such period, 20% of
Consolidated EBITDA in the aggregate for such period (in each case, determined after giving effect to the adjustments contemplated
thereby) (collectively, the “Applicable Adjustments”), minus
(b)
without duplication and to the extent included in determining such Consolidated Net Income, the sum of
(i) any non-cash gains
for such period (other than any such non-cash gains (A) in
respect of which cash was received in a prior period or will be received in a future period and (B) that represent the reversal of
any accrual in a prior period for, or the reversal of any cash reserves established in a prior period for, anticipated cash
charges),
(ii)
all gains during such period resulting from the sale or disposition of any asset outside the ordinary course of business,
(iii) (A)
any gains relating to amounts received in cash prior to the stated settlement date of any hedging obligation that has been reflected
in Consolidated Net Income for such period, (B) any gains during such period attributable to early extinguishment of Indebtedness or
obligations under any Hedging Agreement and (C) any loss relating to hedging obligations associated with transactions realized in
the current period that has been reflected in Consolidated Net Income in prior periods and excluded from Consolidated EBITDA
pursuant to clauses (a)(x) above, and
(iv)
any non-cash gain attributable to the mark to market movement in the valuation of any Equity Interests, and hedging obligations
or other derivative instruments.
21
In the event any
Subsidiary shall be a subsidiary that is not wholly owned by Holdings, all amounts added back in computing Consolidated EBITDA for any
period pursuant to clause (a) above, and all amounts subtracted in computing Consolidated EBITDA pursuant to clause (b) above, to the
extent such amounts are, in the reasonable judgment of a Financial Officer of Holdings, attributable to such subsidiary, shall be reduced
by the portion thereof that is attributable to the non-controlling interest in such subsidiary.
Notwithstanding
anything to the contrary contained herein, following consummation
of the ADI Spin-Off Transaction, and solely if the ADI Spin-Off Transaction is consummated on or prior
to September 30, 2026, for purposes of determining Consolidated EBITDA under this Agreement for any period that
includes any of the fiscal quarters ended September 30, 2024, December 31, 2024, March 31,
2025 and June 30, 2025, September 30, 2025, December
31, 2025 and March 31, 2026, Consolidated EBITDA for such fiscal quarters shall be $245,802,939148,274,552,
$242,599,092146,261,520,
$224,189,226147,197,996 and $262,632,497157,609,730,
respectively, and in each case, shall be subject to any applicable addbacks and adjustments (without duplication) pursuant to the
definition of “Pro Forma Basis”.
“Consolidated
First Lien Leverage Ratio” means, as of the last day of any fiscal quarter, the ratio of (a)(i) Consolidated First Lien Secured
Debt minus (ii) unrestricted cash, cash restricted in favor of the
Administrative Agent and Permitted Investments as reflected on the consolidated balance sheet of Holdings, the Borrower and its
Restricted Subsidiaries in an amount not to exceed $400,000,000 to (b) LTM Consolidated EBITDA.
“Consolidated
First Lien Secured Debt” means, as of any date, Consolidated Secured Debt minus the portion of Indebtedness of the Restricted
Group included in Consolidated Secured Debt that is secured by any Lien on property or assets of the Restricted Group that is junior to
the Liens securing the Obligations.
“Consolidated
Interest Coverage Ratio” means the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Expense, in each case for the
four consecutive fiscal quarters of Holdings ended on such date.
“Consolidated
Interest Expense” means for any period, the excess of (a) the sum of, without duplication, (i) the interest expense
(including imputed interest expense in respect of Capital Lease Obligations) of the Restricted Group for such period, determined on
a consolidated basis in accordance with GAAP and (ii) any interest or other financing costs accrued during such period in respect of
Indebtedness of the Restricted Group that are required to be capitalized rather than included in Consolidated Interest Expense of
Holdings for such period in accordance with GAAP, (iii) any cash payments made during such period in respect of obligations referred
to in clause (b)(iii) below that were amortized or accrued in a previous period, and (iv) all cash dividends paid or payable during
such period in respect of Disqualified Equity Interests of Holdings; provided that such dividends shall be multiplied by a
fraction the numerator of which is one and the denominator of which is one minus the effective combined tax rate of Holdings
(expressed as a decimal) for such period (as estimated by a Financial Officer of Holdings in good faith) minus (b) the sum
of, without duplication, (i) interest income of the Restricted Group for such period, determined on a consolidated basis in
accordance with GAAP, (ii) to the extent included in such Consolidated Interest Expense for such period, non-cash amounts
attributable to amortization or write-off of capitalized interest or other financing costs paid in a previous period and (iii) to
the extent included in such Consolidated Interest Expense for such period, non-cash amounts attributable to amortization of debt
discounts or accrued interest payable in kind for such period. Notwithstanding anything herein to the contrary, in no event shall
the IRA Termination Payment or any payments in respect of the Tax Matters AgreementAgreements
be included in the calculation of Consolidated Interest Expense.
22
“Consolidated
Net Income” means, for any period, (a) the net income or loss of the Restricted Group for such period determined in accordance
with GAAP as set forth on the consolidated financial statements of the Restricted Group for such period, minus (b) any Transaction
Costs incurred during such period, minus (c) fees and expenses incurred during such period in connection with any proposed or actual
permitted merger, acquisition, Investment, asset sale, other disposition or capital markets transaction, including the IRA Termination,
without regard to the consummation thereof and any gains (loss) and all fees and expenses or charges relating thereto for such period
attributable to early extinguishment of Indebtedness or obligations under any Hedging Agreement; provided that there shall be excluded
(i) the income of any Person that is not a member of the Restricted Group, except to the extent of the amount of cash dividends or other
cash distributions (or, in the case of non-cash distributions, to the extent converted into cash) actually paid by such Person to the
Borrower or any Restricted Subsidiary of Holdings during such period, (ii) any extraordinary gain or loss, together with any related provision
for taxes on such extraordinary gain or loss, (iii) any unrealized or realized gain or loss due solely to fluctuations in currency values
and the related tax effects, determined in accordance with GAAP, and (iv) the cumulative effect of a change in accounting principles in
such period, if any.
“Consolidated
Secured Debt” means, as of any date, Consolidated Debt minus the portion of Indebtedness of the Restricted Group included
in Consolidated Debt that is not secured by any Lien on property or assets of the Restricted Group.
“Consolidated
Secured Leverage Ratio” means, as of the last day of any fiscal quarter, the ratio of (a)(i) Consolidated Secured Debt minus
(ii) unrestricted cash, cash restricted in favor of the Administrative
Agent and Permitted Investments as reflected on the consolidated balance sheet of Holdings, the Borrower and its Restricted Subsidiaries
in an amount not to exceed $400,000,000 to (b) LTM Consolidated EBITDA.
“Consolidated
Total Assets” means the total assets of the Restricted Group determined in accordance with GAAP.
“Consolidated
Total Leverage Ratio” means, as of the last day of any fiscal quarter, the ratio of (a)(i) Consolidated Debt minus (ii)
unrestricted cash, cash restricted in favor of the Administrative
Agent and Permitted Investments as reflected on the consolidated balance sheet of Holdings, the Borrower and its Restricted
Subsidiaries in an amount not to exceed $400,000,000 to (b) LTM Consolidated EBITDA; provided that solely for the
Financialpurposes of the ADI Spin-Off Negative
Covenant Calculation PurposesBaskets
and Section 6.13, clause (a)(ii) of this definition shall be deemed to refer to all unrestricted cash,
cash restricted in favor of the Administrative Agent and Permitted Investments as reflected on the consolidated balance sheet
of Holdings, the Borrower and its Restricted Subsidiaries, without a cap thereon.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies, or the dismissal
or appointment of the management, of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling”
and “Controlled” have meanings correlative thereto.
23
“Corresponding
Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment
period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covered
Entity” means any of the following:
(a)
a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
252.82(b);
(b)
a “covered bank” as that term is defined
in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(c)
a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
382.2(b).
“Co-Borrower Merger” means a merger of RFI with and into RF II, with RF II as the surviving entity.
“Credit Party”
means the Administrative Agent, each Issuing Bank and each other Lender.
“CTLR
Testing Date” has the meaning assigned to such term in Section 6.13. “Daily Simple SOFR” means, for any
day (a “ SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day “SOFR Determination
Date”) that is five (5) U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government
Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S.
Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR
Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective
from and including the effective date of such change in SOFR without notice to the Borrower. If by 5:00 p.m. (New York City time) on
the second (2nd) U.S. Government Securities Business Day immediately following any SOFR Determination Date, SOFR in respect of such
SOFR Determination Date has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with
respect to the Daily Simple SOFR has not occurred, then SOFR for such SOFR Determination Date will be SOFR as published in respect
of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s
Website, with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily
Simple SOFR” for syndicated business loans; provided that if the Administrative Agent decides that any such convention is not
administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its
reasonable discretion; provided that
if the Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed
to be equal to the Floor for the purposes of this Agreement.
“Declining
LenderDeadline” has the meaning assigned
to such term in Section 2.222.11(ai).
“DeadlineDeclining Lender” has the meaning assigned
to such term in Section 2.112.22(ia).
24
“Default”
means any event or condition that constitutes an Event of Default or that upon notice, lapse of time or both would, unless cured or waived,
constitute an Event of Default.
“Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.
“Defaulting
Lender” means any Revolving Lender that (a) has failed, within two Business Days of the date required to be funded or paid,
to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or (iii) pay over to any Credit
Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Revolving Lender notifies the
Administrative Agent in writing that such failure is the result of such Revolving Lender’s good faith determination that a condition
precedent to funding (specifically identified in such writing, including, if applicable, by reference to a specific Default) has not been
satisfied, (b) has notified Holdings, the Borrower or any Credit Party in writing, or has made a public statement to the effect, that
it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement
indicates that such position is based on such Revolving Lender’s good faith determination that a condition precedent to funding
(specifically identified in such writing, including, if applicable, by reference to a specific Default) cannot be satisfied) or generally
under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by a Credit Party,
made in good faith, to provide a certification in writing from an authorized officer of such Revolving Lender that it will comply with
its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters
of Credit; provided that such Revolving Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit
Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent or (d) has, or has a
direct or indirect parent company that has, become the subject of a Bankruptcy Event. Any determination by the Administrative Agent that
a Revolving Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent
manifest error, and such Revolving Lender shall be deemed to be a Defaulting Lender (subject to Section 2.20) upon delivery of written
notice of such determination to the Borrower, each Issuing Bank and each other Lender.
“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.
“Designated
Non-Cash Consideration” means the fair market value of non-cash consideration received by the Borrower or a Subsidiary in connection
with a disposition pursuant to Section 6.05(k) that is designated as Designated Non-Cash Consideration pursuant to a certificate of an
executive officer, setting forth the basis of such valuation (which amount will be reduced by the fair market value of the portion of
the non-cash consideration converted to cash within 180 days following the consummation of such disposition).
“Designated
Subsidiary” has the meaning assigned to such term in Section 5.12(b).
25
“Disqualified
Equity Interest” means any Equity Interest that (a) matures or is mandatorily redeemable (other than solely for Qualified
Equity Interests) or subject to mandatory repurchase or redemption or repurchase at the option of the holders thereof, in each case
in whole or in part and whether upon the occurrence of any event, pursuant to a sinking fund obligation on a fixed date or
otherwise, prior to the date that is 91 days after the Latest Maturity Date (determined as of the date of issuance thereof or, in
the case of any such Equity Interests outstanding on the date hereof, as of the date hereof), other than (i) upon payment in full of
the Loan Document Obligations, reduction of the LC Exposure to zero and termination of the Commitments or (ii) upon a “change
in control” or asset sale or casualty or condemnation event; provided that any payment required pursuant to this clause
(ii) shall be subject to the prior repayment in full of the Loan Document Obligations, reduction of the LC Exposure to zero and
termination of the Commitments or (b) is convertible or exchangeable, automatically or at the option of any holder thereof, into (i)
any Indebtedness (other than any Indebtedness described in clause (i) of the definition thereof) or (ii) any Equity Interests or
other assets other than Qualified Equity Interests, in each case at any time prior to the date that is 91 days after the Latest
Maturity Date (determined as of the date of issuance thereof or, in the case of any such Equity Interests outstanding on the date
hereof, as of the date hereof); provided that an Equity Interest in any Person that is issued to any employee or to any plan
for the benefit of employees or by any such plan to such employees shall not constitute a Disqualified Equity Interest solely
because it may be required to be repurchased by such Person or any of its subsidiaries in order to satisfy applicable statutory or
regulatory obligations or as a result of such employee’s termination, death or disability.
“Disqualified
Institution” means (i) (x) the competitors of Holdings, the Borrower and their respective subsidiaries and (y) the banks,
financial institutions and other institutional lenders and persons, in each case set forth in a list provided to the Administrative
Agent prior to the January 27, 2021Second
Amendment and Restatement Effective Date at JPMDQ_Contact@jpmorgan.com
or such other address provided by the Administrative Agent from time to time; provided that any such list provided (or any
modifications, deletions or supplements thereto) shall become effective the following Business Day after such delivery and (ii) any
of their Affiliates that are clearly identifiable solely on the basis of such Affiliates’ name (other than any such Affiliates
that are primarily engaged in making, purchasing, holding or otherwise investing in commercial loans in the ordinary course of their
business (other than any Affiliates excluded pursuant to clause (i)(y)) (provided that the exclusion as to Disqualified
Institutions shall not apply retroactively to disqualify any entity that has previously acquired an assignment or participation
interest in the Loans to the extent such entity was not a Disqualified Institution at the time of the applicable assignment or
participation, as the case may be).
“Distribution
Agreement” means the Separation and Distribution Agreement, dated as of October 19, 2018, between Honeywell and Holdings.
“Documentation
Agents” means, collectively, BNP Paribas Securities Corp., Royal Bank of Canada, U.S. Bank National Association,
PNC Bank, National Association and Truist Securities, Inc.
“Documentation Agent” means JPMorgan Chase
Bank, N.A.
“Dollar
Equivalent” means, for any amount, at the time of determination thereof, (a) if such amount is expressed in dollars, such
amount and (b) if such amount is expressed in a Permitted Foreign Currency, the equivalent of such amount in dollars determined by
using the rate of exchange for the purchase of dollars with the Permitted Foreign Currency last provided (either by publication or
otherwise provided to the Administrative Agent) by Reuters on the Business Day (New York City time) immediately preceding the date
of determination or if such service ceases to be available or ceases to provide a rate of exchange for the purchase of dollars with
the Permitted Foreign Currency, as provided by such other publicly available information service which provides that rate of
exchange at such time in place of Reuters chosen by the Administrative Agent in its sole discretion (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 using any method of determination it deems appropriate in its sole discretion).
26
“dollars” or “$”
refers to lawful currency of the United States of America.
“ECF
Sweep Amount” has the meaning assigned to such term in Section 2.11(d). “EEA Financial Institution”
means (a) any institution 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 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.
“Effective Date” means
October 25, 2018.
“Eligible
Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person, other than, in each
case, a natural person, a Defaulting Lender, Holdings, the Borrower, any Subsidiary, any other Affiliate of Holdings and to the extent
posted to the Lenders, a Disqualified Institution.
“Employee
Matters Agreement” means the Employee Matters Agreement, dated as of October 19, 2018, between Honeywell and Holdings.
“Environmental
Law” means any treaty, law (including common law), rule, regulation, code, ordinance, order, decree, judgment, injunction,
notice or binding agreement issued, promulgated or entered into by or with any Governmental Authority, relating in any way to (a)
the protection of the environment, (b) the preservation or reclamation of natural resources, (c) the generation, management, Release
or threatened Release of any Hazardous Material or (d) health and safety matters, to the extent relating to the exposure to
Hazardous Materials.
“Environmental
Liability” means any liability, obligation, loss, claim, action, order or cost, contingent or otherwise (including any liability
for damages, costs of medical monitoring, costs of environmental remediation or restoration, administrative oversight costs, consultants’
fees, fines, penalties and indemnities), directly or indirectly resulting from or based upon (a) any actual or alleged violation of any
Environmental Law or permit, license or approval required thereunder, (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, or (e) any legally binding contract or agreement or other legally binding consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the foregoing.
27
“Equity
Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests (whether voting or non-voting) in, or interests in the income or profits of,
a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any of the foregoing (other than,
prior to the date of such conversion, Indebtedness that is convertible into Equity Interests).
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA
Affiliate” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or 414(c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated
as a single employer under Section 414 of the Code.
“ERISA
Event” means (a) any “reportable event”, as defined in Section 4043(c) of ERISA or the regulations issued thereunder
with respect to a Plan (other than an event for which the 30-day notice period is waived), (b) any failure by any Plan to satisfy the
minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, whether or not
waived, (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan, (d) a determination that any Plan is, or is expected to be, in “at risk” status
(as defined in Section 303(i)(4) of ERISA or Section 430(i)(4)(A) of the Code), (e) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan under Section 4041 or 4041(A) of ERISA,
respectively, (f) the receipt by the Borrower or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating
to an intention to terminate any Plan under Section 4041 or 4041A of ERISA, respectively, or to appoint a trustee to administer any Plan,
(g) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan, (h) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer
Plan from the Borrower or any of its ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Title IV of ERISA, or in endangered or critical status,
within the meaning of Section 305 of ERISA or (i) any Foreign Benefit Event.
“EU Bail-In
Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person),
as in effect from time to time.
“Event of Default”
has the meaning assigned to such term in Section 7.01.
“Excess
Cash Flow” means, for any fiscal year of Holdings, the sum (without duplication) of:
(a)
the Consolidated Net Income (or loss) of the Restricted Group for such fiscal year, adjusted to exclude (i) net income (or loss) of
any consolidated Restricted Subsidiary that is not wholly owned by Holdings to the extent such income or loss is attributable to the
non-controlling interest in such consolidated Restricted Subsidiary and (ii) any non-cash gains (or non-cash losses) attributable to
sale or disposition of any asset of the Restricted Group outside the ordinary course of business to the extent included (or
deducted) in calculating Consolidated Net Income; plus
28
(b)
depreciation, amortization and other non-cash charges or losses deducted in determining such Consolidated Net Income (or loss)
for such fiscal year; plus
(c)
the sum of (i) the amount, if any, by which Net Working Capital decreased during such fiscal year (except as a result of the reclassification
of items from short-term to long-term or vice-versa), (ii) the net amount, if any, by which the consolidated deferred revenues and other
consolidated accrued long-term liability accounts of the Restricted Group increased during such fiscal year and (iii) the net amount,
if any, by which the consolidated accrued long-term asset accounts of the Restricted Group decreased during such fiscal year; minus
(d)
the sum of (i) any non-cash gains included in determining such Consolidated Net Income (or loss) for such fiscal year, (ii) the
amount, if any, by which Net Working Capital increased during such fiscal year (except as a result of the reclassification of items from
long-term to short-term or vice-versa), (iii) the net amount, if any, by which the consolidated deferred revenues and other consolidated
accrued long-term liability accounts of the Restricted Group decreased during such fiscal year and (iv) the net amount, if any, by which
the consolidated accrued long-term asset accounts of the Restricted Group increased during such fiscal year; minus
(e) [reserved];
(f)
the aggregate principal amount of Long-Term Indebtedness repaid or prepaid by the Restricted Group during such fiscal year (and,
at the Borrower’s option (and without deducting such amounts against the subsequent fiscal year’s Excess Cash Flow calculation),
after the end of such fiscal year but prior to the date on which the prepayment pursuant to Section 2.11(d) for such fiscal year is required
to have been made), excluding (i) Indebtedness in respect of Revolving Loans and Letters of Credit or other revolving credit facilities
(unless there is a corresponding reduction in the Revolving Commitments or the commitments in respect of such other revolving credit facilities,
as applicable), (ii) Term Loans voluntarily prepaid or prepaid pursuant to Section 2.11(c) or (d) and, to the extent Revolving Commitments
are permanently reduced, Revolving Loans voluntarily prepaid and (iii) repayments or prepayments of Long-Term Indebtedness financed from
Excluded Sources (other than Revolving Loans); minus
(g)
the aggregate amount of Restricted Payments made in cash during such fiscal year in accordance with Section 6.08(a)(v) (and, at
the Borrower’s option (and without deducting such amounts against the subsequent fiscal year’s Excess Cash Flow calculation),
after the end of such fiscal year but prior to the date on which the prepayment pursuant to Section 2.11(d) for such fiscal year is required
to have been made), except to the extent that such Restricted Payments (i) are made to fund expenditures that reduce Consolidated Net
Income (or loss) of the Restricted Group or (ii) are financed from Excluded Sources; minus
(h)
(h)
the amount of taxes (including penalties and interest) paid in cash or tax reserves set aside or payable (without duplication) in such
period to the extent such amounts exceed the amount of tax expense deducted in determining Consolidated Net Income for such period.
29
For the avoidance
of doubt, the IRA Termination Payment or any amounts paid prior to the Sixth Amendment Effective Date under the Indemnity Agreement not
be included in any of clauses (d) through (g) above.
“Exchange
Act” means the United States Securities Exchange Act of 1934, as amended from time to time.
“Excluded
Deposit Account” means (a) any deposit account the funds in which are used solely for the payment of salaries and wages,
workers’ compensation and similar expenses in the ordinary course of
businessOrdinary Course of Business, (b) any
deposit account that is a zero-balance disbursement account and (c) any deposit account the funds in which consist solely of (i)
funds held by Holdings, the Borrower or any Restricted Subsidiary in trust for any director, officer or employee of Holdings, the
Borrower or any Restricted Subsidiary or any employee benefit plan maintained by Holdings, the Borrower or any Restricted Subsidiary
or (ii) funds representing deferred compensation for the directors and employees of Holdings, the Borrower or any Restricted
Subsidiary.
“Excluded
Property” means the following assets and property of any Loan Party: (i) all leasehold interests and any fee-owned real
property other than Material Real Property (including requirements to deliver landlord waivers, estoppels and collateral access
letters); (ii) aircraft, rolling stock, motor vehicles and other assets subject to certificates of title, letter of credit rights
(except to the extent perfection can be obtained by filing of Uniform Commercial Code financing statements) and commercial tort
claims for which a complaint or a counterclaim has not yet been filed in a court of competent jurisdiction and commercial tort
claims reasonably expected to result in a judgment not in excess of $10,000,000; (iii) “margin stock” (within the
meaning of Regulation U), and pledges and security interests prohibited by applicable law, rule or regulation; (iv) Equity Interests
in (x) any Excluded Subsidiary of the type described in clauses (a), (b), (d) (other than any Unrestricted Subsidiary that is a
Receivables Entity to the extent a pledge of the equity of such Receivables Entity is not prohibited by the terms of the Permitted
Receivables Facility Documents), (e) or, (h) or
(l) of the definition thereof or (y) any Person other than wholly owned Subsidiaries to the extent (1)
requiring the consent of one or more third parties or (2) the pledge thereof is not permitted by the terms of such
Person’s organizational documents, joint venture documents or similar contractual obligations; (v) assets to the extent a
security interest in such assets would result in material adverse tax consequences to Holdings and its Subsidiaries (as determined
by the Borrower in its reasonable judgment in consultation with the Administrative Agent); (vi) rights, title or interest in any
lease, license, sublicense or other agreement or in any equipment or property subject to a purchase money security interest,
capitalized lease obligation or similar arrangement to the extent that a grant of a security interest therein would violate or
invalidate such lease, license, sublicense or agreement or purchase money arrangement, capitalized lease obligation or similar
arrangement or require the consent of any Person or create a right of termination in favor of any other party thereto (other than a
Loan Party or any of its subsidiaries) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial
Code or equivalent law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the
Uniform Commercial Code or equivalent law notwithstanding such prohibition; (vii) assets that are (x) prohibited by applicable law,
rule or regulation or require governmental (including regulatory) consent, approval, license or authorization to pledge such assets
or (y) contractually prohibited on the Effective Date or the date of acquisition of such asset (or on the date an Excluded
Subsidiary becomes a Loan Party by guaranteeing the Obligations) from pledging such assets, so long as such prohibition is not
created in contemplation of such transaction, and unless such consent, approval, license or authorization has been received, in each
case, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code and other applicable
requirements of law; (viii) any intent-to-use trademark application filed in the United States Patent and Trademark Office pursuant
to Section 1(b) of the Lanham Act, 15 U.S.C. Section 1051, prior to the accepted filing of a “Statement of Use” and
issuance of a “Certificate of Registration” pursuant to Section 1(d) of the Lanham Act or an accepted filing of an
“Amendment to Allege Use” whereby such intent-to-use trademark application is converted to a “use in
commerce” application pursuant to Section 1(c) of the Lanham Act and any other Intellectual Property in any jurisdiction where
such pledge or security interest would cause the invalidation or abandonment of such Intellectual Property under applicable law;
(ix) accounts primarily holding funds received from insurance companies in connection with the third party claims of management and
handling business of Holdings and the Restricted Subsidiaries (together with the funds held in such accounts); (x) Excluded Deposit
Accounts; (xi) Excluded Securities Accounts; (xii) any governmental licenses or state or local franchises, charters and
authorizations, to the extent security interests in favor of the Administrative Agent in such licenses, franchises, charters or
authorizations are prohibited or restricted thereby or under applicable law, after giving effect to the applicable anti-assignment
provisions of the Uniform Commercial Code and other applicable requirements of law; provided that in the event of the
termination or elimination of any such prohibition or restriction contained in any applicable license, franchise, charter or
authorization or applicable Law, a security interest in such licenses, franchises, charters or authorizations shall be automatically
and simultaneously granted under the applicable Security Documents and such license, franchise, charter or authorization shall be
included as Collateral; (xiii) assets of Loan Parties located in any jurisdiction outside of the United States (but excluding (1)
Equity Interests of any Foreign Subsidiary or any other Person organized in a jurisdiction outside of the United States and (2)
assets owned by a Loan Party organized under the laws of the United States in which a security interest can be perfected by the
filing of a Uniform Commercial Code financing statement or by delivery of certificates evidencing Equity Interests); (xiv) (A)
voting Equity Interests in excess of 65% of the issued and outstanding voting Equity Interests and (B) to the extent such pledge
would result in material adverse tax consequences (as determined by the Borrower in its reasonable judgment in consultation with the
Administrative Agent), non-voting Equity Interests in excess of 65% of the issued and outstanding non-voting Equity Interests, in
each case of any Foreign Subsidiary or any Foreign Subsidiary Holding Company that is directly owned by any Loan Party that is a
U.S. Subsidiary and (xv) those assets as to which the Administrative Agent and Holdings reasonably agree that the cost or other
consequences of obtaining such a security interest or perfection thereof are excessive in relation to the benefit to the Lenders of
the security to be afforded thereby. Notwithstanding anything to the contrary, in no circumstances shall the Equity Interests in any
of the Borrower, U.S. HoldCo 2 or any Subsidiary that that holds, directly or indirectly, any Equity Interests in the Borrower
constitute Excluded Property. For the avoidance of doubt, any Honeywell Asset (as defined in the Distribution Agreement) shall also
constitute Excluded Property.
30
“Excluded
Refinanced Debt” has the meaning assigned to such term in the definition of “Refinancing Indebtedness”.
“Excluded
Securities Account” shall mean (a) any securities account the funds in which are used solely for the payment of salaries and
wages, workers’ compensation and similar expenses in the ordinary course of businessOrdinary
Course of Business and (b) any securities account the funds or assets in which consist solely of (i) funds or assets held by Holdings,
the Borrower or any Restricted Subsidiary in trust for any director, officer or employee of Holdings, the Borrower or any Restricted
Subsidiary or any employee benefit plan maintained by Holdings, the Borrower or any Restricted Subsidiary or (ii) funds or assets representing
deferred compensation for the directors and employees of Holdings, the Borrower or any Restricted Subsidiary.
“Excluded
Sources” means (a) proceeds of any incurrence or issuance of Long-Term Indebtedness or Capital Lease Obligations and (b) proceeds
of any issuance or sale of Equity Interests in any member of the Restricted Group (other than issuances or sales of Equity Interests to
a member of the Restricted Group) or any capital contributions to any member of the Restricted Group (other than any capital contributions
made by a member of the Restricted Group).
“Excluded
Subsidiary” shall mean (a) each Subsidiary of Holdings designated by the Borrower for the
purpose of this clause (a) from time to time, for so
long as any such Subsidiarythat does not constitute
a Material Subsidiary as of the most recently ended four fiscal quarters of Holdings for
which consolidated financial statements have most recently been, or were required to be, delivered to the Administrative Agent pursuant
to Section 5.01(a) or 5.01(b); provided that if such Subsidiary would constitute a Material Subsidiary as of the end of
such four fiscal quarter period, the Borrower shall cause such Subsidiary to become a Loan Party pursuant to Section 5.12, (b) each Subsidiary
that is not a wholly owned Subsidiary or otherwise constitutes a joint venture (for so long as such Subsidiary remains a non-wholly owned
Subsidiary or joint venture), (c) each Subsidiary that is prohibited by any applicable law, regulation or contract to provide the Guarantee
required by the Collateral and Guarantee Requirement (so long as any such contractual restriction is not incurred in contemplation of
such Person becoming a Subsidiary) (unless such prohibition is removed or any necessary consent, approval, waiver or authorization has
been received), or would require governmental (including regulatory) consent, approval, license or authorization to provide such Guarantee,
unless such consent, approval, license or authorization has been received (and for so long as such restriction or any replacement or
renewal thereof is in effect), (d) each Unrestricted Subsidiary, (e) any special purpose entity or broker-dealer entity, (f) any Subsidiary
to the extent that the guarantee of the Obligations by such entity would result in adverse tax or accounting consequences that are not
de minimis (as determined by the Borrower in its reasonable judgment in consultation with the Administrative Agent), (g) any Captive
Insurance Subsidiary, (h) any non-profit Subsidiary, (i) any Subsidiary of Holdings that is, or would become as a result of providing
the Guarantee required by the Collateral and Guarantee Requirement, an “investment company” as defined in, or subject to
regulation under, the Investment Company Act (j) any Foreign Subsidiary or Foreign Subsidiary Holding Company or,
(k) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower, the cost, burden,
difficulty or other consequence of guaranteeing the Obligations shall be excessive in view of the benefits to be obtained by the Secured
Parties therefrom or (l) each ADI Spin-Off Entity; provided
that a Subsidiary that has become a Designated Subsidiary shall not constitute an Excluded Subsidiary. Notwithstanding anything to the
contrary, no Subsidiary that holds, directly or indirectly, any Equity Interests in the Borrower shall constitute an Excluded Subsidiary.
“Excluded
Swap Guarantor” means Holdings or any other Loan Party all or a portion of whose Guarantee of, or grant of a security interest
to secure, any Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation
or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof).
31
“Excluded Swap
Obligations” means, with respect to Holdings, or any other Loan Party, any Swap Obligation if, and to the extent that, all
or a portion of the Guarantee of Holdings or such other Loan Party of, or the grant by Holdings or such other 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 any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any
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 and the regulations thereunder at the time the Guarantee of such Loan Party or the grant of
such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement
governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps
for which such Guarantee or security interest is or becomes illegal.
“Excluded
Taxes” means any of the following Taxes imposed on or with respect to a 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 applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or
(ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for
the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which
(i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section
2.19(b) or 9.02(c)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17,
amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable
interest in a Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s
failure to comply with Section 2.17(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Existing
Credit Agreement” means that certain Amended and Restated
Credit Agreement, dated as of October 25, 2018 (as
amended by the Firstthe Amendment to
the Credit Agreement and the Second Amendment to the Credit Agreement)and
Restatement Effective Date, by and among Holdings, U.S. HoldCo 1, U.S. HoldCo 2, the BorrowerRFI,
the lenders party thereto and the Administrative Agent.,
as amended by the First Amendment,
the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment and
the Sixth Amendment, and as amended, restated, amended and restated,
supplemented or otherwise modified from time to time prior to the Second Amendment and Restatement Effective Date.
“Existing
Letters of Credit” means (i) those certain letters of credit, bank guarantees or similar instruments
(if any) issued underhas the meaning assigned to such term
in the Existing Credit Agreement prior to the Fourth Amendment Effective Date andas
in effect immediately prior to the Fourth Amendment Effective Date and listed under “Part A”
on Schedule 1.04 to the Fourth Amendment and (ii) the letters of credit listed under “Part B” on Schedule 1.04 to the Fourth
Amendment, in each case, deemed issued as a Letter of Credit hereunder on the Fourth AmendmentSecond
Amendment and Restatement Effective Date.
“Existing Maturity
Date” has the meaning assigned to such term in Section 2.22(a).
“Existing Revolving
Borrowings” has the meaning assigned to such term in Section 2.21(d).
32
“Extension
Effective Date” has the meaning assigned to such term in Section 2.22(a).
“Fair
Market Value” or “fair market value” means, with respect to any asset or group of assets on any date of determination,
the value of the consideration obtainable in a sale of such asset at such date of determination assuming a sale by a willing seller to
a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time taking into account
the nature and characteristics of such asset, as reasonably determined by Holdings in good faith.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the Second Amendment
and Restatement Effective 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 and any agreements entered into pursuant to Section
1471(b) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement,
treaty or convention entered into in connection with the implementation of such Sections of the Code (or any such amended or successor
version thereof).
“Federal
Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions
by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published
on the next succeeding Business Day by the NYFRB as the effective federal funds rate, provided that if the Federal Funds Effective
Rate as so determined would be less than zero, such rate shall be deemed to zero for the purposes of this Agreement.
“Fee
Letters” shall mean, collectively, each Fee Letter, dated February 3, 2021 (or, in the case
of JPMCB, February 7, 2021)June 4, 2026, among any
Arranger, Holdings and the Borrower.
“Fifth
Amendment” means that certain Fifth Amendment to Amended and Restated Credit Agreement, dated as of December 16, 2024,
among Holdings, U.S. HoldCo 1, U.S. HoldCo 2, the Borrower, the Lenders party thereto and the Administrative Agent.
“Fifth
Amendment Effective Date” means December 16, 2024.
“Financial
Covenant Calculation Purposes” has the meaning assigned to such term in
the definition of “Pro Forma Basis”.
“Financial
Covenant Event of Default” has the meaning assigned to such term in Section 7.01(d).
“Financial
Officer” means, with respect to any Person, the chief financial officer, principal accounting officer, treasurer or controller
of such Person, or any other officer of such Person performing the duties that are customarily performed by a chief financial officer,
principal accounting officer, treasurer or controller and with respect to limited liability companies that do not have officers, the manager,
sole member, managing member or general partner thereof, the chief financial officer, principal accounting officer, treasurer, assistant
treasurer or controller of such Person, or any other officer of such Person performing the duties that are customarily performed by a
chief financial officer, principal accounting officer, treasurer or controller.
33
“First
Amendment” means the First Amendment to the Amended and Restated Credit Agreement, dated as of March 28, 2022,
among Holdings, the Borrower, the Administrative Agent and the Lenders party thereto.
“First
Amendment Effective Date” has the meaning specified in the First Amendment.
“First
Amendment Term Lenders” has the meaning specified in the First Amendment.
“First
Amendment Term Loans” has the meaning specified in the First Amendment.
“First
Amendment to the Credit Agreement”
means that certain First Amendment to the Credit Agreement,
dated as of November 26, 2019, among Holdings, U.S. HoldCo 1, U.S. HoldCo 2, the Borrower,
the Lenders party thereto and the Administrative Agent.
“First
Alert Acquisition” means the acquisition of one hundred percent (100%) of the outstanding equity interests of First Alert, Inc.
and certain of its subsidiaries pursuant to that certain Acquisition Agreement, dated as of February 6, 2022 (as amended, restated, amended
and restated, supplemented or otherwise modified prior to the date hereof), by and among Newell Brands Inc., a Delaware corporation and
Resideo Technologies, Inc., a Delaware corporation.
“First
Amendment” means the First Amendment to the Amended and Restated Credit Agreement, dated as of March 28, 2022, among Holdings,
the Borrower, the Administrative Agent and the Lenders party thereto.
“First
Amendment Effective Date” has the meaning specified in the First Amendment.
“First
Amendment Term Lenders” has the meaning specified in the First Amendment.
“First
Amendment Term Loans” has the meaning specified in the First Amendment.
“Flood
Insurance Laws” means, collectively, (i) the National Flood Insurance Reform Act of 1994 (which comprehensively revised the
National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute
thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters
Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Floor”
means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification,
amendment or renewal of this Agreement or otherwise) with respect to the Adjusted Term
SOFR Rate. For the avoidance of doubt the initial Floor for the Adjusted Term SOFR Rate
shall be zero with respect to Revolving Loans and Term Loans.
“Foreign
Benefit Event” means, with respect to any Foreign Pension Plan, (a) the failure to make or, if applicable, accrue in
accordance with normal accounting practices, any employer or employee contributions under Requirements of Law or by the terms of
such Foreign Pension Plan; (b) the failure to register or loss of good standing with applicable regulatory authorities of any such
Foreign Pension Plan required to be registered; (c) the failure of any Foreign Pension Plan to comply with any material Requirements
of Law or with the material terms of such Foreign Pension Plan; or (d) the receipt of a notice by a Governmental Authority relating
to the intention to terminate any such Foreign Pension Plan or to appoint a trustee or similar official to administer any such
Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension Plan, in each case, which would reasonably be expected
to result in Holdings, the Borrower or any Restricted Subsidiary becoming subject to a material funding or contribution obligation
with respect to such Foreign Pension Plan.
34
“Foreign
Lender” means a Lender that is not a U.S. Person for U.S. federal income tax purposes.
“Foreign
Pension Plan” means any plan, trust, insurance contract, fund (including, without limitation, any superannuation fund) or other
similar program established or maintained by the Borrower or any one or more of its Restricted Subsidiaries primarily for the benefit
of employees or other service providers of the Borrower or such Restricted Subsidiaries, as applicable, which plan, fund or other similar
program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination
of employment, and which plan is not subject to ERISA or the Code.
“Foreign Prepayment
Event” has the meaning assigned to such term in Section 2.11(e).
“Foreign
Subsidiary” means each Subsidiary that is not a U.S. Subsidiary. “Foreign Subsidiary Holding Company”
means any Restricted Subsidiary with no material assets other than 65% or more of the Equity Interests of one or more Foreign
Subsidiaries or other Foreign Subsidiary Holding Companies.
“Form
10” means the registration statement on Form 10 originally filed by HoldingsADI
Global Distribution Inc. with the SEC on August 23May
11, 20182026,
as amended on September 25, 2018 and as may be further amended after the date thereof
pursuant to the terms hereof.
“Fourth
Amendment” means the Fourth Amendment to the Amended and Restated Credit Agreement, dated as of June 14. 2024, among Holdings,
U.S. HoldCo 1, U.S. HoldCo 2, the Borrower, the other Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.
“Fourth
Amendment Acquisition” means has the meaning specified for the term “Acquisition” in the Fourth Amendment.
“Fourth
Amendment Effective Date” has the meaning assigned to such term in the Fourth Amendment.
“Fourth
Amendment Term Borrowing” means Fourth Amendment Term Loans of the same Class and Type made, converted or continued on the same
date and, in the case of Term Benchmark Loans, as to which a single Interest Period is in effect.
35
“Fourth
Amendment Term Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make a Fourth Amendment
Term Loan hereunder on the Fifth Amendment Effective Date, expressed as an amount representing the maximum principal amount of the Fourth
Amendment Term Loan to be made by such Lender hereunder, as such commitment may be (a) reduced from time to time pursuant to Section
2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial
amount of each Lender’s Fourth Amendment Term Commitment is set forth in Schedule 2.01 to the Fifth Amendment or in the Assignment
and Assumption pursuant to which such Lender shall have assumed its Fourth Amendment Term Commitment, as applicable. The initial aggregate
amount of the Lenders’ Fourth Amendment Term Commitments is $598,500,000.00 as of the Fifth Amendment Effective Date.
“Fourth
Amendment Term Lenders” means a Lender with a Fourth Amendment Term Commitment or an outstanding Fourth Amendment Term Loan.
“Fourth
Amendment Term Loans” means the Term Loans made by the Term Lenders pursuant to clause (a)(ii) of Section 2.01 on the Fifth
Amendment Effective Date.
“Fourth
Amendment Term Maturity Date” means the date that is seven years after the Fourth Amendment Effective Date, as the same may
be extended pursuant to Section 2.22.
“GAAP”
means generally accepted accounting principles in the United States of America, as in effect from time to time (unless the Borrower elects
to change to IFRS pursuant to Section 1.07, upon the effective date of which GAAP shall subsequently refer to IFRS); provided,
however, that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate
the effect of any change occurring after the Second Amendment and
Restatement Effective Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies
the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis
of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn
or such provision amended in accordance herewith.
“Global
Intercompany Note” means the global intercompany note substantially in the form of Exhibit
F pursuant to which intercompany obligations and advances owed by any Loan Party are subordinated to the Obligations.that
certain Global Intercompany Note, dated as of October 25, 2018, as amended, restated, amended and restated, supplemented or modified
from time to time, by
and among the Loan Parties and the other entities party thereto.
“Golden
Valley Property” means the property located at 1885-1985 Douglas Drive North, Golden Valley, MN, 55422.
“Governmental
Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether
State or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supranational
bodies exercising such powers or functions, such as the European Union or the European Central Bank).
36
“Guarantee”
of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase
(or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working
capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued
to support such Indebtedness or other obligation; provided that the term “Guarantee” shall not include endorsements
for collection or deposit in the ordinary course of businessOrdinary
Course of Business. The amount, as of any date of determination, of any Guarantee shall be the principal amount outstanding on
such date of the Indebtedness or other obligation guaranteed thereby (or, in the case of (i) any Guarantee the terms of which limit the
monetary exposure of the guarantor or (ii) any Guarantee of an obligation that does not have a principal amount, the maximum monetary
exposure as of such date of the guarantor under such Guarantee (as determined, in the case of clause (i), pursuant to such terms or, in
the case of clause (ii), reasonably and in good faith by a Financial Officer of the Borrower)). The term “Guarantee” used
as a verb has a corresponding meaning.
“Hazardous
Materials” means all explosive, radioactive, hazardous or toxic substances, materials, wastes or other pollutants, including
petroleum or petroleum by-products or distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, chlorofluorocarbons
and other ozone-depleting substances or toxic mold, or any or materials or substances which are defined or regulated as “toxic,”
or “hazardous,” or words of similar import, pursuant to any Environmental Law.
“Hedging
Agreement” means any agreement with respect to any swap, forward, future or derivative transaction, or any option or similar
agreement, involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities,
or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any
combination of the foregoing transactions; provided that no phantom stock or similar plan providing for payments only on account
of services provided by current or former directors, officers, employees or consultants of any member of the Restricted Group shall be
a Hedging Agreement.
“Holdings”
means any of the following persons: (i) Resideo Technologies, Inc., a Delaware corporation or (ii) any Successor Holdings.
“Honeywell”
means Honeywell International Inc., a Delaware corporation. “IFRS” means international financial reporting
standards and interpretations issued by the International Accounting Standards Board or any successor thereto (or the Financial
Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants or any
successor to either such Board, or the SEC, as the case may be), as in effect from time to time.
“Incremental Extensions
of Credit” has the meaning assigned to such term in Section 2.21(a).
“Incremental
Facility AmendmentFacilities”
has the meaning assigned to such term in Section 2.21(ca).
“Incremental
FacilitiesFacility Amendment” has the meaning assigned
to such term in Section 2.21(ac).
37
“Incremental
Revolving Commitment” has the meaning assigned to such term in Section 2.21(a).
“Incremental
Revolving Loans” has the meaning assigned to such term in Section 2.21(a).
“Incremental
Term Loans” has the meaning assigned to such term in Section 2.21(a).
“Indebtedness”
of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other
title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding (x) trade accounts payable and other accrued or cash management
obligations, in each case incurred in the ordinary course of businessOrdinary
Course of Business, (y) any earn-out obligation until fifteen
(15) Business Days after becoming due and payable and shown as a liability on the balance sheet of such Person in accordance
with GAAP and (z) Taxes and other accrued expenses), (e) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed by such Person, (f) all Guarantees by such Person of
Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such
Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of
such Person in respect of bankers’ acceptances, (j) net obligations of such Person under any Hedging Agreement and (k) all
Disqualified Equity Interests in such Person, valued, as of the date of determination, at the greater of (i) the maximum aggregate
amount that would be payable upon maturity, redemption, repayment or repurchase thereof (or of Disqualified Equity Interests or
Indebtedness into which such Disqualified Equity Interests are convertible or exchangeable) and (ii) the maximum liquidation
preference of such Disqualified Equity Interests; provided that the term “Indebtedness” shall not include (A)
deferred or prepaid revenue, (B) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy
warranty, indemnity or other unperformed obligations of the seller, (C) any obligations attributable to the exercise of appraisal
rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, (D) obligations
in respect of any residual value guarantees on equipment leases, (E) any take-or-pay or similar obligation to the extent such
obligation is not shown as a liability on the balance sheet of such Person in accordance with GAAP and (F) asset retirement
obligations and obligations in respect of reclamation and workers’ compensation (including pensions and retiree medical care).
The amount of Indebtedness of any Person for purposes of clause (e) above shall (unless such Indebtedness has been assumed by such
Person or such Person has otherwise become liable for the payment thereof) be deemed to be equal to the lesser of (i) the aggregate
unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in
good faith. For the avoidance of doubt, indemnification obligations under the Tax Matters AgreementAgreements,
in each case, shall not constitute Indebtedness.
“Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation
of any Loan Party under this Agreement or any other Loan Document and (b) to the extent not otherwise described in clause (a) of this
definition, Other Taxes.
“Indemnitee”
has the meaning assigned to such term in Section 9.03(b). “Indemnity Agreement” means the Indemnification and
Reimbursement Agreement (as defined in the IRA Termination Agreement).
“Initial
Term Borrowing” means Initial Term Loans of the same Class and Type made, converted or continued on the same date and, in the
case of Term Benchmark Loans, as to which a single Interest Period is in effect.
“Initial
Term Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make (or be deemed to make)
an Initial Term Loan hereunder on the Fifth Amendment Effective Date, expressed as an amount representing the maximum principal
amount of the Initial Term Loan to be made (or deemed to be made) by such Lender hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender’s Initial Term Commitment is set forth on Schedule
2.01 to the Fifth Amendment or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Initial
Term Commitment, as applicable. The initial aggregate amount of the Lenders’ Initial Term Commitments is $517,787,216.60 as of
the Fifth Amendment Effective Date.
“Initial
Term Lender” means a Lender with an Initial Term Commitment or an outstanding Initial Term Loan.
“Initial
Term Loans” means the Term Loans made (or deemed to be made) by the Term Lenders pursuant to clause (a)(i) of Section 2.01 on
the Fifth Amendment Effective Date.
“Initial
Term Maturity Date” means the date that is seven years after the Amendment and Restatement Effective Date, as the same may be
extended pursuant to Section 2.22.
“Inside
Maturity Exception” means any Incremental Extensions of Credit that is designated by the Borrower as being incurred in reliance
on this Inside Maturity Exception and is in an aggregate principal amount outstanding that does not exceed an amount equal to 25% of LTM
Consolidated EBITDA.
“Intellectual
Property” has the meaning assigned to such term in the Amended and Restated Collateral Agreement.
“Interest
Election Request” means a request by the Borrower to convert or continue a Revolving Borrowing or Term Borrowing in accordance
with Section 2.07, which shall be in a form approved by the Administrative Agent and otherwise consistent with the requirements of Section
2.07.
“Interest
Payment Date” means (a) with respect to any ABR Loan, the last day of each March, June, September and December and (b) with
respect to any Term Benchmark Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and,
in the case of a Term Benchmark Borrowing with an Interest Period of more than three months’ duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.
38
“Interest
Period” means, with respect to any Term Benchmark Borrowing, the period commencing on the date of such Borrowing and ending
on the numerically corresponding day in the calendar month that is one, three or six months thereafter (or (x) twelve (12) months thereafter,
if at the time of the relevant Borrowing, all Lenders participating therein agree to make such interest period available and (y) any other
period if, at the time of the relevant Borrowing, the Administrative Agent and all Lenders participating therein agree to make an interest
period of such duration available), as the Borrower may elect; provided that (a) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (b) any Interest
Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in
the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.
For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
“Investment
Company Act” means the United States Investment Company Act of 1940, as amended from time to time.
“Investments”
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 or debt or other securities of another Person, (b) a loan, advance or capital contribution to,
Guarantee or assumption of Indebtedness 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 or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of
another Person or assets constituting a business unit, line of business or division of such Person. The amount, as of any date of
determination, of (a) any Investment in the form of a loan or an advance shall be the principal amount thereof outstanding on such
date, minus any cash payments actually received by such investor representing interest in respect of such Investment (to the extent
any such payment to be deducted does not exceed the remaining principal amount of such Investment and without duplication of amounts
increasing the Available Amount), but without any adjustment for write-downs or write-offs (including as a result of forgiveness of
any portion thereof) with respect to such loan or advance after the date thereof, (b) any Investment in the form of a Guarantee
shall be 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
in good faith by a financial officer, (c) any Investment in the form of a transfer of Equity Interests or other non-cash property by
the investor to the investee, including any such transfer in the form of a capital contribution, shall be the fair market value (as
determined in good faith by a Financial Officer) of such Equity Interests or other property as of the time of the transfer, minus
any payments actually received by such investor representing a return of capital of, or dividends or other distributions in respect
of, such Investment (to the extent such payments do not exceed, in the aggregate, the original amount of such Investment and without
duplication of amounts increasing the Available Amount), but without any other adjustment for increases or decreases in value of, or
write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment, and (d) any Investment
(other than any Investment referred to in clause (a), (b) or (c) above) by the specified Person in the form of a purchase or other
acquisition for value of any Equity Interests, evidences of Indebtedness or other securities of any other Person shall be the
original cost of such Investment (including any Indebtedness assumed in connection therewith), plus (i) the cost of all additions
thereto and minus (ii) the amount of any portion of such Investment that has been repaid to the investor in cash as a repayment of
principal or a return of capital, and of any cash payments actually received by such investor representing interest, dividends or
other distributions in respect of such Investment (to the extent the amounts referred to in clause (ii) do not, in the aggregate,
exceed the original cost of such Investment plus the costs of additions thereto and without duplication of amounts increasing the
Available Amount), but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs
with respect to, such Investment after the date of such Investment. If an Investment involves the acquisition of more than one
Person, the amount of such Investment shall be allocated among the acquired Persons in accordance with GAAP; provided that
pending the final determination of the amounts to be so allocated in accordance with GAAP, such allocation shall be as reasonably
determined by a Financial Officer.
39
“IRA Termination” has the meaning
given to such term in the Sixth Amendment.
“IRA Termination Payment”
has the meaning given to such term in the Sixth Amendment.
“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).
“Issuing
Banks” means (a) JPMCB, (b) Bank of America, N.A., (c) Wells Fargo
Bank, National Association, (d) BNP Paribas, (d) Morgan Stanley Bank, N.A., (e)
PNC Bank, National Association, (f) Royal Bank of Canada, (g)
Truist Bank, (hg)
U.S. Bank, National Association and (i,
(h) Royal Bank of Canada, (i)
Citizens Bank, N.A., (j) Citibank N.A. and (d) each Revolving Lender that shall have become an Issuing Bank hereunder as provided
in Section 2.05(j) (other than any Person that shall have ceased to be an Issuing Bank as provided in Section 2.05(k)) and solely with
respect to any Existing Letters of Credit, each Revolving Lender (or an Affiliate thereof) that is an issuer thereof as listed on Schedule
1.04, each in its capacity as an issuer of Letters of Credit hereunder. Each Issuing Bank may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include
any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“JPMCB” means JPMorgan
Chase Bank, N.A.
“Judgment
Currency” has the meaning assigned to such term in Section 9.19.
“Latest Maturity Date” means, at any time,
the latest of the Maturity Dates in respect of the Classes of Loans and Commitments that are outstanding at such time.
“LC Commitment”
means, as to each Issuing Bank, the amount set forth opposite such Issuing Bank’s name on Schedule 2.01 under the caption “LC
Sublimit” (as such amount may be increased from time to time as agreed by the Borrower and the applicable Issuing Bank) or, if a
Issuing Bank has entered into an Assignment and Assumption with respect to such LC Commitment, set forth for such Issuing Bank in the
Register as the Issuing Bank’s “LC Commitment.”
40
“LC
Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.
“LC Exposure”
means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time and (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any
Revolving Lender at any time shall be such Lender’s Applicable Percentage of the aggregate LC Exposure at such time.
“LC Sublimit” means an
amount equal to $75,000,000.
“LCT Election”
means the Borrower’s election to test the permissibility of a Limited Condition Transaction in accordance with the methodology set
forth in Section 1.06.
“LCT Test Date” has the
meaning specified in Section 1.06.
“Lender Presentation”
means that certain lender presentation delivered by Holdings to the Administrative Agent on January 28May
11, 20212026.
“Lender-Related
Person” has the meaning specified in Section 9.03(d).
“Lenders” means the Persons listed on Schedule
2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, an Incremental
Facility Amendment or a Refinancing Facility Agreement, other than any such Person that shall have ceased to be a party hereto
pursuant to an Assignment and Assumption.
“Letters
of Credit” means any letter of credit (or with respect to any Issuing Bank, any bank guarantee (or similar instrument) as such
Issuing Bank may in its sole discretion approve) denominated in dollars or in a Permitted Foreign Currency issued pursuant to this Agreement
by an Issuing Bank under the Revolving Commitments and shall include any Existing Letter of Credit (which shall be deemed issued hereunder
on the Fourth Amendment Effective Date), other than any such letter of credit that shall have ceased to be a “Letter of Credit”
outstanding hereunder pursuant to Section 9.05.
“Lien”
means, with respect to any asset, (a) any mortgage, lien, pledge, hypothecation, charge, security interest or other encumbrance in,
on or of such asset or (b) the interest of a vendor or a lessor under any conditional sale agreement or title retention agreement
(or any capital lease or financing lease having substantially the same economic effect as any of the foregoing) relating to such
asset; provided that in no event shall an operating lease be deemed to constitute a Lien.
“Limited
Condition Transaction” means (i) any acquisition of any assets, business or person, or a merger or consolidation, in each case
involving third parties, or similar Investment permitted hereunder (subject to Section 1.06) by the Borrower or one or more of the Restricted
Subsidiaries, including by way of merger or amalgamation, whose consummation is not conditioned on the availability of, or on obtaining,
third party financing (or, if such condition does exist, the Borrower or any Restricted Subsidiary, as applicable, would be required to
pay any fee, liquidated damages or other amount or be subject to any indemnity, claim or other liability as a result of such third party
financing not having been available or obtained), (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment
of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment,
(iii) any Restricted Payment requiring irrevocable notice in advance thereof or (iv) the IRA Termination.
“Loan
Document Obligations” means (a) the due and punctual payment by the Borrower of (i) the principal of and interest (including
interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed
or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (ii) each payment required to be made by the Borrower under this Agreement in respect of any Letter of Credit, when and
as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral and
(iii) all other monetary obligations of the Borrower under this Agreement and each of the other Loan Documents, including obligations
to pay fees, expense reimbursement obligations (including with respect to attorneys’ fees) and indemnification obligations, whether
primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) and (b) the due and
punctual payment of all the obligations of each other Loan Party under or pursuant to each of the Loan Documents (including monetary obligations
incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding).
“Loan
Documents” means this Agreement, the Amendment and Restatement
Agreement, the Second Amendment and Restatement Agreement, any Incremental Facility Amendment, any Refinancing Facility Agreement,
any Security Document, any agreement designating an additional Issuing Bank as contemplated by Section 2.05(j) and, except for purposes
of Section 9.02, the Global Intercompany Note and any promissory notes delivered pursuant to Section 2.09(d) (and, in each case, any amendment,
restatement, waiver, supplement or other modification to any of the foregoing) and any document designated as a Loan Document by the Administrative
Agent and the Borrower.
“Loan
Parties” means, collectively, Holdings, the Borrower and each other Subsidiary that guarantees any Obligations or is a party
to any Security Document.
“Loans”
means the loans made by the Lenders to the Borrower pursuant to this Agreement, including pursuant to any Incremental Facility Amendment
or any Refinancing Facility Agreement.
41
“Local
Time” means with respect to any Loan or Borrowing, New York City time.
“Long-Term
Indebtedness” means any Indebtedness (excluding Indebtedness permitted by Section 6.01(a)(iv)) that, in accordance with GAAP,
constitutes (or, when incurred, constituted) a long-term liability.
“LTM Consolidated
EBITDA” means, as of any date of determination, the Consolidated EBITDA of Holdings for the most recent period of four consecutive
fiscal quarters of Holdings ended on or prior to such time (taken as one accounting period) in respect of which financial statements for
each fiscal quarter or fiscal year in such period have been delivered pursuant to Section 5.01(a) or Section 5.01(b).
“Majority
in Interest”, when used in reference to Lenders of any Class, means, at any time, (a) in the case of the Revolving Lenders,
Lenders having Revolving Exposures and unused Revolving Commitments representing more than 50% of the sum of the Aggregate Revolving Exposure
and the unused Aggregate Revolving Commitment at such time and (b) in the case of the Term Lenders of any Class, Lenders holding outstanding
Term Loans of such Class representing more than 50% of the aggregate principal amount of all Term Loans of such Class outstanding at such
time; provided that whenever there are one or more Defaulting Lenders, the total outstanding Term Loans and Revolving Exposures
of, and the unused Commitments of, each Defaulting Lender of any Class shall be excluded for purposes of making a determination of Majority
in Interest.
“Market
Capitalization” means an amount equal to (a) the sum of (i) the total number of issued and outstanding shares of common
stock of Resideo Technologies, Inc. on the date of the declaration of a Restricted Payment permitted pursuant to clause (a)(vi) of Section
6.08 multiplied by (ii) the arithmetic mean of the closing prices per share of such shares on the principal securities exchange
on which such shares are traded for the 30 consecutive trading days immediately preceding the date of declaration of such Restricted
Payment.
“Material
Acquisition” means any merger, amalgamation, acquisition
or similar Investment or consolidation (or series of related transactions), in any such case,
by Holdings or any Restricted Subsidiary that involves aggregate consideration greater than or equal to
$250,000,000.
“Material
Adverse Effect” means a material adverse effect on (a) the business, financial condition or results of operations of Holdings,
the Borrower and the Restricted Subsidiaries, taken as a whole, (b) the ability of the Loan Parties (taken as a whole) to perform their
material obligations to the Lenders or the Administrative Agent under this Agreement or any other Loan Document or (c) the material rights
of, or remedies available to, the Administrative Agent or the Lenders under this Agreement or any other Loan Document.
“Material
Acquisition” means any merger, amalgamation, acquisition or similar Investment or consolidation (or series of related transactions),
in any such case, by Holdings or any Restricted Subsidiary that involves aggregate consideration greater than or equal to $250,000,000.
“Material
Indebtedness” means Indebtedness (other than the Loans, the Letters of Credit and the Guarantees under the Loan Documents),
or obligations in respect of one or more Hedging Agreements, of any one or more of Holdings, the Borrower and the Restricted Subsidiaries
in an aggregate principal amount exceeding $70,000,000. For purposes of determining Material Indebtedness, the “principal amount”
of the obligations of Holdings, the Borrower or any Restricted Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that Holdings, the Borrower or such Restricted Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
42
“Material
Real Property” means any fee-owned real property (i) with a Fair Market Value of more than $15,000,000
that is owned by a Loan Party as of the Effective Date (other than the Golden Valley Property), with any such real property as
of the Second Amendment and Restatement Effective Date being specified in Schedule 1.02 or (ii) with
a Fair Market Value of more than $15,000,000 that is acquired after the Effective Date by any Loan Party or owned by a Subsidiary that
becomes a Loan Party pursuant to Section 5.12.
“Material
Subsidiary” means each Restricted Subsidiary (a) the Consolidated Total Assets of which equal 5.0% or more of the Consolidated
Total Assets of Holdings, the Borrower and the Restricted Subsidiaries or (b) the consolidated revenues of which equal 5.0% or more of
the consolidated revenues of Holdings, the Borrower and the Restricted Subsidiaries, in each case as of the end of or for the most recent
period of four consecutive fiscal quarters of Holdings for which financial statements have been delivered pursuant to Section 5.01(a)
or 5.01(b) (or, prior to the first delivery of any such financial statements, as of the end of or for the period of four consecutive fiscal
quarters of Holdings most recently ended prior to the date of this Agreement); provided that if, at the end of or for any such
most recent period of four consecutive fiscal quarters, the combined Consolidated Total Assets or combined consolidated revenues of all
Restricted Subsidiaries that under clauses (a) and (b) above would not constitute Material Subsidiaries shall have exceeded 7.5% of the
Consolidated Total Assets of Holdings, the Borrower and the Restricted Subsidiaries or 7.5% of the consolidated revenues of Holdings,
the Borrower and the Restricted Subsidiaries, respectively, then one or more of such excluded Restricted Subsidiaries shall for all purposes
of this Agreement be designated by the Borrower to be Material Subsidiaries, until such excess shall have been eliminated.
“Maturity
Date” means the Revolving Maturity Date, the Initial Term Maturity Date, the Fourth Amendment Term Maturity Date, the Sixth
Amendment Term Maturity Date or the maturity date with respect to any Class of Incremental Term Loans, as the context requires (or if
such date is not a Business Day, the immediately preceding Business Day).
“Maturity
Date Extension Request” means a request by the Borrower, substantially in the form of Exhibit I hereto or such other
form as shall be approved by the Administrative Agent, for the extension of the applicable Maturity Date pursuant to Section 2.22.
“Maximum
Rate” has the meaning assigned to such term in Section 9.13.
“MNPI” means material information
concerning Holdings, the Borrower, any Subsidiary or any Affiliate of any of the foregoing or their respective securities that has
not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD under the
Securities Act and the Exchange Act. For purposes of this definition, “material information” means information
concerning Holdings, the Borrower, the Subsidiaries or any Affiliate of any of the foregoing or any of their respective securities
that could reasonably be expected to be material for purposes of the United States Federal and State securities laws and, where
applicable, foreign securities laws.
“Moody’s”
means Moody’s Investors Service, Inc., and any successor to its rating agency business.
“Mortgage”
means a mortgage, deed of trust or other security document granting a Lien on any Mortgaged Property owned by Loan Party to secure the
Obligations. Each Mortgage shall be reasonably satisfactory in form and substance to the Administrative Agent.
43
“Mortgaged
Property” means, initially, each parcel of Material Real Property existing on the Second
Amendment and Restatement Effective Date, if any, and identified on Schedule 1.02 and
thereafter, each parcel of Material Real Property with respect to which a Mortgage is required to be granted pursuant to Section 5.12
or 5.13, as applicable.
“Multiemployer
Plan” means a “multiemployer plan”, as defined in Section 4001(a)(3) of ERISA, and in respect of which the Borrower
or any of its ERISA Affiliates makes or is obligated to make contributions or with respect to which any of them has any ongoing obligation
or liability, contingent or otherwise.
“Net
Proceeds” means, with respect to any event, (a) the cash proceeds received in respect of such event, including (i) any cash
received in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to
a note or installment receivable or purchase price adjustment or earnout, but excluding any interest payments), but only as and when
received, (ii) in the case of a casualty, insurance proceeds and (iii) in the case of a condemnation or similar event, condemnation awards
and similar payments, minus (b) the sum, without duplication, of (i) all fees and out-of-pocket expenses paid in connection with
such event by the Restricted Group (including attorney’s fees, investment banking fees, survey costs, title insurance premiums,
and related search and recording charges, transfer taxes, deed or mortgage recording taxes, underwriting discounts and commissions, other
customary expenses and brokerage, consultant, accountant and other customary fees), (ii) in the case of a sale, transfer, lease or other
disposition of an asset (including pursuant to a sale and leaseback transaction or a casualty or a condemnation or similar proceeding),
(x) the amount of all payments that are permitted hereunder and are made by the Restricted Group as a result of such event to repay Indebtedness
(other than the Loans) secured by such asset or otherwise subject to mandatory prepayment as a result of such event, (y) the pro rata
portion of net cash proceeds thereof attributable to minority interests and not available for distribution to or for the account of Holdings,
the Borrower and the Restricted Subsidiaries as a result thereof and (z) the amount of any liabilities directly associated with such
asset and retained by Holdings, the Borrower or any Restricted Subsidiary and including pension and other post-employment benefit liabilities
and liabilities related to environmental matters, and (iii) the amount of all taxes paid (or reasonably estimated to be payable), and
the amount of any reserves established in accordance with GAAP to fund purchase price adjustment, indemnification and other liabilities
(other than any earnout obligations, but including pension and other post-employment benefit liabilities and liabilities related to environmental
matters) reasonably estimated to be payable, as a result of the occurrence of such event (including, without duplication of the foregoing,
the amount of any distributions in respect thereof pursuant to Section 6.08(a)(xiii)) (as determined reasonably and in good faith by
a Financial Officer of Holdings). For purposes of this definition, in the event any contingent liability reserve established with respect
to any event as described in clause (b)(iii) above shall be reduced, the amount of such reduction shall, except to the extent such reduction
is made as a result of a payment having been made in respect of the contingent liabilities with respect to which such reserve has been
established, be deemed to be receipt, on the date of such reduction, of cash proceeds in respect of such event. Notwithstanding
the foregoing, Net Proceeds in respect of (A) any event set forth in clause (a) of the definition of “Prepayment Event” shall
be limited to aggregate Net Proceeds solely to the extent exceeding(A) $25,000,000 in the case of any single disposition or series of
related dispositions and (B) $50,000,000 for all such dispositions during any fiscal year of Holdings and (B) any event set forth in
clause (b) of the definition of “Prepayment Event” shall be limited to aggregate Net Proceeds solely to the extent exceeding
$20,000,000.
“Net
Working Capital” means, at any date, (a) the consolidated current assets of the Restricted Group as of such date (excluding
cash and Permitted Investments) minus (b) the consolidated current liabilities of the Restricted Group as of such date (excluding
current liabilities in respect of Indebtedness). Net Working Capital at any date may be a positive or negative number. Net Working Capital
increases when it becomes more positive or less negative and decreases when it becomes less positive or more negative.
“Non-Consenting Lender”
means a Lender whose consent to a Proposed Change
is not obtained.
“Non-Guarantor
Debt Basket” means a shared basket in an amount not to exceed the greater of (x) $185,000,000 and (y) 46% of LTM Consolidated
EBITDA at any time outstanding that may be used for (A) the incurrence of certain Indebtedness by Restricted Subsidiaries that are not
Loan Parties under Sections 6.01(a)(xii), 6.01(a)(xix) and 6.01(a)(xx) and (B) Secured Cash Management Obligations of any Restricted Subsidiary
that is not a Loan Party.
“Non-Guarantor
Investment Basket” means a shared basket in an amount not to exceed the greater of (x) $200,000,000 and (y) 50% of LTM Consolidated
EBITDA at any time outstanding that may be used for (A) certain Investments permitted under Sections 6.04(b), 6.04(e), 6.04(f), 6.04(g)
and 6.04(r) and (B) certain Guarantees permitted under Section 6.04(g) (without duplication of amounts previously included or utilized
under clause (A) above).
“NYFRB” means the
Federal Reserve Bank of New York.
“NYFRB
Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank
Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided
that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for
a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized
standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such
rate shall be deemed to be zero for purposes of this Agreement.
“NYFRB’s
Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor
source.
“Obligations”
means, collectively, (a) all the Loan Document Obligations of the Loan Parties, (b) all the Secured Cash Management Obligations of the
Loan Parties, (c) all the Secured Hedging Obligations of the Loan Parties, (d) all Secured Supply Chain Financing Obligations and (e)
all Secured Additional Letter of Credit Facility Obligations. For the avoidance of doubt, Obligations shall not include any Excluded Swap
Obligations.
44
“OFAC”
means the Office of Foreign Assets Control of the U.S. Department of the Treasury.
“Ordinary
Course of Business” means (a) the ordinary course of business
(including with respect to nature, scope, magnitude, quantity and frequency) that does not require any board of director or shareholder
approval or any other separate or special authorization of any nature and similar in nature, scope and magnitude to actions customarily
taken in the ordinary course of the normal day-to-day operations of other persons that are in the same line of business acting in good
faith, (b) consistent with past practice or (c) consistent with industry
practice; provided that, for the avoidance of doubt, the payment of reasonable and customary corporate overhead costs and
expenses (including administrative, legal, accounting and similar expenses payable to third parties), the payment of taxes and the payment
of costs and expenses in connection with litigation matters shall be deemed to be in the ordinary course
of businessOrdinary Course of Business.
“Other
Connection Tax” means, with respect to any Recipient, a Tax 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 this Agreement or any other Loan Document, or sold or assigned an interest in this Agreement
or any other 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, this Agreement or any other Loan Document, except any such Taxes that are Other
Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19(b)).
“Overnight
Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Term Benchmark borrowings
by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its
public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Participant”
has the meaning assigned to such term in Section 9.04(c). “Participant Register” has the meaning assigned to such
term in Section 9.04(c). “Patent License Agreement” means the Patent Cross-License Agreement, dated as of October
19, 2018, between Honeywell and Holdings.
“Payment”
has the meaning assigned to such term in Section 8.07.
“Payment
Notice” has the meaning assigned to such term in Section 8.07.
“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
45
“Perfection
Certificate” means a certificate in the form of Exhibit D or any other form approved by
thethat certain Perfection Certificate, dated as of
October 25, 2018, as amended, restated, amended and restated, supplemented or modified from time to time, delivered by the Loan
Parties to the Administrative Agent.
“Permitted
Acquisition” means, the purchase or other acquisition by Holdings, the Borrower or a Restricted Subsidiary permitted under
Section 6.04(b) (in one transaction or a series of related transactions)
of all or substantially all of the property and assets or business of any Person or of assets constituting a business unit, a line of
business or division of such Person, or the Equity Interests in a Person that, upon the consummation thereof, will be a Restricted Subsidiary
(or, in the case of a merger or consolidation, the surviving Person is Holdings, the Borrower or a Restricted Subsidiary of the Borrower)
or, in the case of a purchase or acquisition of assets (other than Equity Interests), will be owned by Holdings, the Borrower or a Restricted
Subsidiary of the Borrower; provided that, immediately before and immediately after giving Pro
Forma Effectpro forma effect to any such purchase
or other acquisition, no Event of Default shall have occurred and be continuing under Section 7.01 (a), (b), (h) or (i).
“Permitted Encumbrances”
means, with respect to any Person:
(a)
Liens imposed by law for Taxes, assessments or governmental charges that (i) are not yet overdue for a period of more than 30 days
or not subject to penalties for nonpayment, (ii) are being contested in good faith by appropriate proceedings if adequate reserves
with respect thereto are maintained on the books of the applicable Person in accordance with GAAP or (iii) are for property taxes on
property such Person or one of its subsidiaries has determined to abandon if the sole recourse for such tax, assessment, charge,
levy or claim is to such property;
(b) Liens
with respect to outstanding motor vehicle fines and carriers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s, landlords’, construction contractors’ and other like Liens imposed by law or landlord liens
specifically created by contract, arising in the ordinary course of businessOrdinary
Course of Business and securing obligations that are not overdue by more than 45 days or are being contested in good faith by
appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance
with GAAP or other Liens arising out of or securing judgments or awards against such Person with respect to which such Person shall
be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books
of the applicable Person in accordance with GAAP;
(c) pledges
and deposits made (i) in the ordinary course of businessOrdinary
Course of Business in compliance with workers’ compensation, unemployment insurance, health, disability or employee
benefits and other social security laws or similar legislation or regulations and (ii) in respect of letters of credit, bank
guarantees or similar instruments issued for the account of Holdings or any subsidiary of Holdings in the ordinary
course of businessOrdinary Course of Business
supporting obligations of the type set forth in clause (i) above;
(d)
pledges and deposits made (i)(x) to secure the performance of bids, tenders, trade contracts (other than for payment of
Indebtedness), governmental contracts, leases (other than Capital Lease Obligations), public or statutory obligations, surety, stay,
customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and
environmental obligations), in each case in the ordinary course of businessOrdinary
Course of Business and (ii) in respect of letters of credit, bank guarantees or similar instruments issued for the account of
Holdings or any subsidiary of Holdings in the ordinary course of businessOrdinary
Course of Business supporting obligations of the type set forth in clause (i) above;
46
(e)
judgment and attachment liens in respect of judgments that do not constitute an Event of Default under clause (k) of Section 7.01
and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings
and for which adequate reserves have been made;
(f) easements,
survey exceptions, charges, ground leases, protrusions, encroachments on use of real property or reservations of, or rights of
others for, licenses, servitudes, sewers, electric lines, drains, telegraph and telephone and cable television lines, gas and oil
pipelines and other similar purposes, any zoning, building or similar law or right reserved to or vested in any governmental office
or agency to control or regulate the use of any real property, servicing agreements, site plan agreements, developments agreements,
contract zoning agreements, subdivision agreements, facilities sharing agreements, cost sharing agreements and other agreements
pertaining to the use or development of any of the real property of Holdings and the Restricted Subsidiaries, restrictions,
rights-of-way and similar encumbrances (including, without limitation, minor defects or irregularities in title and similar
encumbrance) on real property imposed by law or arising in the ordinary course of
businessOrdinary Course of Business that do not
secure any monetary obligations and do not individually or in the aggregate materially interfere with the ordinary conduct of
business of the Borrower or any Subsidiary, leases, subleases, licenses, sublicenses, occupancy agreements or assignments of or in
respect of real or personal property, or which are set forth in the title insurance policy delivered with respect to the Mortgaged
Property and are “insured over” in such insurance policy;
(g)
[reserved];
(h)
banker’s liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained with depository
institutions and securities accounts and other financial assets maintained with a securities intermediary; provided that such deposit
accounts or funds and securities accounts or other financial assets are not established or deposited for the purpose of providing collateral
for any Indebtedness;
(i) Liens
arising by virtue of Uniform Commercial Code financing statement filings (or similar filings under applicable law) regarding
operating leases, accounts or consignments entered into by Holdings, the Borrower and the Restricted Subsidiaries or purported Liens
evidenced by filings of precautionary Uniform Commercial Code (or similar filings under applicable law) financing statements or
similar public filings;
(j) Liens
of a collecting bank arising in the ordinary course of businessOrdinary
Course of Business under Section 4-208 (or the applicable corresponding section) of the Uniform Commercial Code in effect in
the relevant jurisdiction covering only the items being collected upon;
(k)
(i) Liens representing any interest or title of a licensor, lessor or sublicensor or sublessor, or a licensee, lessee or sublicensee
or sublessee, in the property or rights (other than Intellectual Property) subject to any lease, sublease, license or sublicense or concession
agreement held by Holdings, the Borrower or any Restricted Subsidiary in the ordinary course of businessOrdinary
Course of Business and (ii) deposits of cash with the owner or lessor of premises leased and operated by Holdings or any of its
Subsidiaries in the ordinary course of businessOrdinary
Course of Business of Holdings and such Subsidiary to secure the performance of Holdings’ or such Subsidiary’s obligations
under the terms of the lease for such premises;
47
(l)
Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection
with the importation of goods;
(m)
Liens that are contractual rights of set-off;
(n) Liens
(i) of a collection bank arising under Section 4-208 of the New York Uniform Commercial Code or Section 4-210 of the Uniform
Commercial Code applicable in other States on items in the course of collection, (ii) attaching to pooling accounts,
commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of
businessOrdinary Course of Business, or (iii) in
favor of a banking or other financial institutions or entities, or electronic payment service providers, arising as a matter of law
or under general terms and conditions encumbering deposits, deposit accounts, securities accounts, cash management arrangements
(including the right of set-off and netting arrangements) or other funds maintained with such institution or in connection with the
issuance of letters of credit, bank guarantees or other similar instruments and which are within the general parameters customary in
the banking or finance industry;
(o) Liens
encumbering customary initial deposits and margin deposits and similar Liens attaching to brokerage accounts incurred in the ordinary
course of businessOrdinary Course of Business
and not for speculative purposes;
(p)
[reserved];
(q) Liens
on specific items of inventory or other goods and proceeds of any Person securing such Person’s accounts payable or similar
obligations in respect of bankers’ acceptances or letters of credit entered into in the ordinary
course of businessOrdinary Course of Business
issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other
goods;
(r) deposits
made or other security provided in the ordinary course of businessOrdinary
Course of Business to secure liability to insurance brokers, carriers, underwriters or under self-insurance arrangements in
respect of such obligations;
(s) Liens
on the Equity Interests or other securities of Unrestricted Subsidiaries to the extent securing obligations of such Unrestricted
Subsidiaries, which obligations shall be non-recourse to the Restricted Group;
(t) Liens
arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary
course of businessOrdinary Course of
Business;
(u) Liens
on accounts receivable and related assets of the type specified in the definition of “Permitted Receivables Facility
Assets” incurred and transferred in connection with a Permitted Receivables Facility, including Liens on such receivables
resulting from precautionary Uniform Commercial Code (or equivalent statutes) filings or from recharacterization of any such sale as
a financing or loan;
48
(v) non-exclusive
licenses or sublicenses of Intellectual Property granted in the ordinary course of businessOrdinary
Course of Business or other licenses or sublicenses of Intellectual Property granted in the ordinary
course of businessOrdinary Course of Business that
do not materially interfere with the business of Holdings, the Borrower or any Restricted Subsidiary;
(w) Liens
on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto or on funds received from
insurance companies on account of third party claims handlers and managers;
(x) agreements
to subordinate any interest of Holdings or any Restricted Subsidiary in any accounts receivable or other proceeds arising from consignment
of inventory by Holdings or any Restricted Subsidiary pursuant to an agreement entered into in the ordinary
course of businessOrdinary Course of Business;
(y) with
respect to any entities that are not Loan Parties, other Liens and privileges arising mandatorily by Law;
(z) Liens
arising pursuant to Section 107(l) of the Comprehensive Environmental Response, Compensation and Liability Act or similar lien provision
of any other environmental statute;
(aa) Liens on
cash or Permitted Investments securing Hedging Agreements in the ordinary course of businessOrdinary
Course of Business submitted for clearing in accordance with applicable Requirements of Law;
(bb) rights of
recapture of unused real property (other than any Material Real Property of Loan Parties) in favor of the seller of such property set
forth in customary purchase agreements and related arrangements with any Governmental Authority;
(cc) Liens on
the property of (x) any Loan Party in favor of any other Loan Party and (y) any Restricted Subsidiary that is not a Loan Party in favor
of Holdings, the Borrower or any Restricted Subsidiary;
(dd) Liens or
security given to public utilities or to any municipality or Governmental Authority when required by the utility, municipality or Governmental
Authority in connection with the supply of services or utilities to the Borrower and any other Restricted Subsidiaries; and
(ee) receipt of
progress payments and advances from customers in the ordinary course of businessOrdinary
Course of Business to the extent the same creates a Lien on the related inventory and proceeds thereof.
provided that the
term “Permitted Encumbrances” shall not include any Lien securing Indebtedness in
respect of borrowed money, other than Liens referred to in clauses (c), (d), (r),
(s),
(t), (u), (bb) and (cc) above.
“Permitted
Foreign Currency” means, (a) with respect to any Revolving Loan, any foreign currency reasonably requested by the
applicable Borrower from time to time and in which each Revolving Lender has agreed, in accordance with its policies and procedures
in effect at such time, to lend Revolving Loans and (b) with respect to any Letter of Credit, any foreign currency included in
clause (a) that is reasonably requested by the applicable Borrower from time to time and that has been agreed to by the applicable
Issuing Bank.
49
“Permitted
Foreign Currency Equivalent” means, for any amount of any Permitted Foreign Currency, at the time of determination thereof,
(a) if such amount is expressed in such Permitted Foreign Currency, such amount and (b) if such amount is expressed in dollars, the equivalent
of such amount in such Permitted Foreign Currency determined by using the rate of exchange for the purchase of such Permitted Foreign
Currency with dollars last provided (either by publication or otherwise provided to the Administrative Agent) by the applicable Reuters
source on the Business Day (New York City time) immediately preceding the date of determination or if such service ceases to be available
or ceases to provide a rate of exchange for the purchase of such Permitted Foreign Currency with dollars, as provided by such other publicly
available information service which provides that rate of exchange at such time in place of Reuters chosen by the Administrative Agent
in its sole discretion (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 using any method of determination it deems appropriate in its sole discretion).
“Permitted Investments”
means:
(a) direct
obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, (i) the United States of America
(or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), (ii)
England and Wales, (iii) Canada or (iv) Switzerland, in each case maturing within one year from the date of acquisition thereof;
(b)
investments in commercial paper and variable and fixed rate notes maturing within 12 months from the date of acquisition thereof
and having, at such date of acquisition, a rating of at least A-2 by S&P or P-2 by Moody’s;
(c)
investments in certificates of deposit, banker’s acceptances and demand or time deposits, in each case maturing within 12
months from the date of acquisition thereof, issued or guaranteed by or placed with, and money market deposit accounts issued or offered
by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof that has
a combined capital and surplus and undivided profits of not less than $500,000,000;
(d)
fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria described in clause (c) above;
(e)
“money market funds” that (i) comply with the criteria set forth in Rule 2a-7 of the Investment Company Act, (ii) are
rated AAA- by S&P and Aaa3 by Moody’s and (iii) have portfolio assets of at least $5,000,000,000;
(f) asset-backed
securities rated AAA by Moody’s or S&P, with weighted average lives of 12 months or less (measured to the next maturity date);
(g) readily
marketable direct obligations issued by any state, commonwealth or territory of the United States, England and Wales, Canada or Switzerland
or any political subdivision or taxing authority thereof having a rating equal to or higher than Baa3 (or the equivalent) by Moody’s
or BBB- (or the equivalent) by S&P, and in each such case with a “stable” or better outlook, with maturities of 24 months
or less from the date of acquisition;
50
(h) Investments
with average maturities of 24 months or less from the date of acquisition in money market funds rated “AAA” (or the equivalent
thereof) or better by S&P or “Aaa3” (or the equivalent thereof) or better by Moody’s (or reasonably equivalent
ratings of another internationally recognized rating agency);
(i)
investment funds investing at least 95% of their assets in securities of the types described in clauses (a) through (h) above;
(j)
in the case of any Non-Unon-U.S.
Subsidiary, other short-term investments that are analogous to the foregoing, are of comparable credit quality and are customarily used
by companies in the jurisdiction of such Non-Unon-U.S.
Subsidiary for cash management purposes; and
(k) dollars,
euros, Canadian dollars, pounds sterling, Swiss francs, any Permitted Foreign Currency or any other readily tradable currency held by
it from time to time in the ordinary course of businessOrdinary
Course of Business of Holdings or any of its Restricted Subsidiaries.
“Permitted
Receivables Facility” means one or more receivables facilities created under the Permitted Receivables Facility Documents providing
for (a) the factoring, sale or pledge by one or more of Holdings, the Borrower or a Restricted Subsidiary (each a “Receivables
Seller”) of Permitted Receivables Facility Assets (thereby providing financing to the Receivables Sellers) to the Receivables
Entity (either directly or through another Receivables Seller), which in turn shall sell or pledge interests in the respective Permitted
Receivables Facility Assets to third-party lenders or investors pursuant to the Permitted Receivables Facility Documents (with the Receivables
Entity permitted to issue investor certificates, purchased interest certificates or other similar documentation evidencing interests in
the Permitted Receivables Facility Assets) in return for the cash used by the Receivables Entity to purchase the Permitted Receivables
Facility Assets from the respective Receivables Sellers or (b) the factoring, sale or pledge by one or more Receivables Sellers of Permitted
Receivables Facility Assets to third-party lenders or investors pursuant to the Permitted Receivables Facility Documents in connection
with Receivables-backedreceivables-backed
financing programs, in each case as more fully set forth in the Permitted Receivables Facility Documents; provided that in each
case of clause (a) and clause (b), such facilities are not recourse to or obligates Holdings, the Borrower or any Restricted Subsidiary
in any way other than pursuant to Standard Securitization Undertakings.
“Permitted
Receivables Facility Assets” means (i) accounts receivables (whether now existing or arising in the future) of Subsidiaries
which are transferred or pledged to the Receivables Entity pursuant to the Permitted Receivables Facility and any related Permitted Receivables
Related Assets which are also so transferred or pledged to the Receivables Entity and all proceeds thereof and (ii) loans to Subsidiaries
secured by accounts receivables (whether now existing or arising in the future) of Holdings, the Borrower and the Restricted Subsidiaries
which are made pursuant to the Permitted Receivables Facility.
“Permitted
Receivables Facility Documents” means each of the documents and agreements entered into in connection with the Permitted Receivables
Facility, including all documents and agreements relating to the issuance, funding and/or purchase of certificates and purchased interests,
all of which documents and agreements shall be in form and substance reasonably customary for transactions of this type.
51
“Permitted
Second Priority Refinancing Debt” shall mean any secured Indebtedness incurred by the Borrower in the form of one or more series
of senior secured notes or loans; provided that (i) such Indebtedness is secured by the Collateral on a second lien, subordinated
basis to the Obligations and is not secured by any property or assets of Holdings, the Borrower or any Restricted Subsidiary other than
the Collateral, (ii) such Indebtedness constitutes Refinancing Term Loan Indebtedness in respect of Term Loans (including portions of
Classes of Term Loans), (iii) the security agreements relating to such Indebtedness are not materially more favorable (when taken as a
whole) to the lenders or holders providing such Indebtedness than the existing Security Documents are to the Lenders, (iv) such Indebtedness
is not guaranteed by any Restricted Subsidiaries other than the Loan Parties and (v) the holders of, or an agent, trustee or note agent
acting on behalf of the holders of, such Indebtedness shall have become party to an Acceptable Intercreditor Agreement.
“Permitted
Unsecured Refinancing Debt” shall mean unsecured Indebtedness incurred by the Borrower in the form of one or more series of
senior or subordinated unsecured notes or loans; provided that (i) such Indebtedness constitutes Refinancing Term Loan Indebtedness
in respect of Term Loans (including portions of Classes of Term Loans), (ii) such Indebtedness is not guaranteed by any Subsidiaries other
than the Loan Parties and (iii) such Indebtedness is not secured by any Lien or any property or assets of Holdings, the Borrower or any
Restricted Subsidiary.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
“Plan”
means any “employee pension benefit plan”, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), that is
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any of its ERISA Affiliates is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer”
as defined in Section 3(5) of ERISA.
“Plan
Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
“Platform” has
the meaning assigned to such term in Section 9.01(d).
“Prepayment Event” means:
(a) any
non-ordinary course sale, transfer, lease or other disposition (including pursuant to a sale and leaseback transaction and by way of
merger or consolidation) (for purposes of this defined term, collectively, “dispositions”) of any asset of any
member of the Restricted Group, other than (i) dispositions described in clauses (a) through (i) and (l) and (m) of Section 6.05 and
(ii) other dispositions resulting in aggregate Net Proceeds not exceeding (A) $25,000,000 in the case of any single disposition or
series of related dispositions and (B) $50,000,000 for all such dispositions during any fiscal year of Holdings;
(b)
any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding
of, any asset of any member of the Restricted Group with a fair market value immediately prior to such event equal to or greater than
$20,000,000; or
52
(c)
the incurrence by any member of the Restricted Group of any Indebtedness, other than Indebtedness permitted to be incurred under
Section 6.01.
“Prime
Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The
Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Board of Governors in Federal Reserve
Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted
therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Board of Governors
(as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change
is publicly announced or quoted as being effective.
“Private-Siders” has the
meaning assigned to such term in Section 9.17(b).
“Pro
Forma Basis” means, with respect to the calculation of the financial covenants contained in Sections 6.12 and 6.13 or any
other calculations hereunder or otherwise for purposes of determining the Consolidated Total Leverage Ratio, Consolidated Interest
Expense, the Consolidated Secured Leverage Ratio, the Consolidated First Lien Secured Leverage Ratio or Consolidated EBITDA as of
any date, that such calculation shall give pro forma effect to all acquisitions, designations of Restricted Subsidiaries as
Unrestricted Subsidiaries, all designations of Unrestricted Subsidiaries as Restricted Subsidiaries, all issuances, incurrences or
assumptions or repayments and prepayments of Indebtedness in connection therewith (with any such Indebtedness being deemed to be
amortized over the applicable testing period in accordance with its terms), all sales, transfers or other dispositions of any Equity
Interests in a Restricted Subsidiary or all or substantially all assets of a Restricted Subsidiary or division or line of business
of a Restricted Subsidiary outside the ordinary course of businessOrdinary
Course of Business (and any related prepayments or repayments of Indebtedness), and the IRA Termination, in each case that
have occurred during (or, if such calculation is being made for the purpose of determining whether any Incremental Extension of
Credit may be made, any designation under Section 5.17 is permitted or any event subject to Article VI is permitted, since the
beginning of) the four consecutive fiscal quarter period of Holdings most recently ended on or prior to such date as if they
occurred on the first day of such four consecutive fiscal quarter period, including expected cost savings, operating expense
reductions, and other synergies (excluding any revenue synergies) (in each case without duplication of amounts actually realized) to
the extent (a) such cost savings, operating expense reductions, and other synergies (excluding any revenue synergies) would be
permitted to be reflected in pro forma financial information complying with the requirements of Article 11 of Regulation S-X under
the Securities Act as interpreted by the Staff of the SEC, and as certified by a Financial Officer of Holdings or (b) in the case of
an acquisition, restructuring, repositioning or other similar transaction, or the IRA Termination, such cost savings, operating
expense reductions, and other synergies (excluding any revenue synergies) are factually supportable and have been realized or are
reasonably expected to be realized within 24 months following such acquisition, restructuring, repositioning or other similar
transaction, or the IRA Termination; provided that (i) Holdings shall have delivered to the Administrative Agent a certificate of
the chief financial officer of Holdings certifying that such cost savings, operating expense reductions, and other synergies meet
the requirements set forth in this clause (b), together with reasonably detailed evidence in support thereof and (ii) if any cost
savings, operating expense reductions, and other synergies included in any pro forma calculations based on the expectation that such
cost savings, operating expense reductions, and other synergies are reasonably expected to be realized within 24 months following
such acquisition, restructuring, repositioning or other similar transaction, or the IRA Termination, shall at any time cease to be
reasonably expected to be so realized within such period, then on and after such time pro forma calculations required to be made
hereunder shall not reflect such cost savings, operating expense reductions, and other synergies; provided further that (i) Holdings
shall have delivered to the Administrative Agent a certificate of the chief financial officer of Holdings certifying that such cost
savings meet the requirements set forth in clause (b)together with reasonably detailed evidence in support thereof and (ii) the
aggregate amount of cost savings, operating expense reductions and other synergies to be included in any calculation based upon
clause (b) for any period of four fiscal quarters of Holdings shall not exceed, together with any amounts added back pursuant to
clauses (a)(xii) and (a)(xiii) of the definition of “Consolidated EBITDA” for such period (excluding any addbacks and
adjustments pursuant to clause (a)(xiii) of the definition of Consolidated EBITDA with respect to the IRA Termination, which shall
be uncapped), 20% of Consolidated EBITDA for such four fiscal quarter period (in each case, determined after giving effect to the
adjustments contemplated by the Applicable Adjustments). If any Indebtedness bears a floating rate of interest and is being given
pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had
been the applicable rate for the entire period (taking into account any Hedging Agreement applicable to such Indebtedness).
53
“Pro Rata
Share” means, with respect to a Revolving Lender or Issuing Bank, a fraction (expressed as a percentage, carried out to the
ninth decimal place), the numerator of which is the Revolving Commitments of such Revolving Lender or Issuing Bank in its capacity as
Revolving Lender and the denominator of which is the aggregate Revolving Commitments of all Revolving Lenders.
“Proposed
Change” means a proposed amendment, modification, waiver or termination of any provision of this Agreement or any other Loan
Document.
“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-Siders”
has the meaning assigned to such term in Section 9.17(b).
“Purchasing Borrower Party” means any of Holdings, the Borrower
or any Restricted Subsidiary.
“QFC”
has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D).
“QFC
Credit Support” has the meaning assigned to such term in Section 9.21.
“Qualified Equity Interests” means
Equity Interests of Holdings, other than Disqualified Equity Interests.
54
“Receivables
Entity” means a wholly owned Subsidiary of Holdings which engages in no activities other than in connection with the
financing of accounts receivable of the Receivables Sellers and which is designated (as provided below) as the “Receivables
Entity” (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by
Holdings, the Borrower or any Restricted Subsidiary (excluding guarantees of obligations (other than the principal of, and interest
on, Indebtedness)) pursuant to Standard Securitization Undertakings, (ii) is recourse to or obligates Holdings, the Borrower or any
Restricted Subsidiary in any way (other than pursuant to Standard Securitization Undertakings) or (iii) subjects any property or
asset of Holdings, the Borrower or any Restricted Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization Undertakings, (b) with which neither Holdings, the Borrower nor any
Restricted Subsidiary has any contract, agreement, arrangement or understanding (other than pursuant to the Permitted Receivables
Facility Documents (including with respect to fees payable in the ordinary course of
businessOrdinary Course of Business in
connection with the servicing of accounts receivable and related assets)) on terms less favorable to Holdings, the Borrower or such
Restricted Subsidiary than those that might be obtained at the time from persons that are not Affiliates of Holdings, and (c) to
which neither Holdings, the Borrower, nor any Restricted Subsidiary has any obligation to maintain or preserve such entity’s
financial condition or cause such entity to achieve certain levels of operating results. Any such designation shall be evidenced to
the Administrative Agent by a certificate of a Financial Officer of the Borrower certifying that, to the best of such
officer’s knowledge and belief after consultation with counsel, such designation complied with the foregoing conditions.
“Receivables
Seller” has the meaning assigned to such term in the definition of “Permitted Receivables Facility”.
“Recipient”
means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.
“Reference
Rate” means, for any day, the Adjusted Term SOFR Rate as of such day
for a Term Benchmark Borrowing with an Interest Period of three months’ duration.
“Reference
Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m.
(Chicago time) on the day that is two U.S. Government Securities Business Days preceding the date of such setting, and (2) if such Benchmark
is not Term SOFR Rate, the time determined by the Administrative Agent in its reasonable discretion.
“Refinanced
Debt” has the meaning set forth in the definition of “Refinancing Term Loan Indebtedness”.
“Refinancing Effective
Date” has the meaning assigned to such term in Section 2.23(a).
“Refinancing
Facility Agreement” means a Refinancing Facility Agreement, in form and substance reasonably satisfactory to the Administrative
Agent, among Holdings, the Borrower, the Administrative Agent and one or more Refinancing Term Lenders and/or Lenders providing any Refinancing
Revolving Commitments (as applicable), establishing commitments in respect of Refinancing Term Loans and/or Refinancing Revolving Commitments
and effecting such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.23.
55
“Refinancing
Indebtedness” means, in respect of any Indebtedness (the “Original Indebtedness”), any Indebtedness that
extends, renews, replaces or refinances such Original Indebtedness (or any Refinancing Indebtedness in respect thereof); provided
that (a) the principal amount (or accreted value, if applicable) of such Refinancing Indebtedness shall not exceed the principal amount
(or accreted value, if applicable) of such Original Indebtedness except by an amount no greater than accrued and unpaid interest with
respect to such Original Indebtedness and any fees, premium and expenses relating to such extension, renewal, replacement or refinancing;
(b) either (i) the stated final maturity of such Refinancing Indebtedness shall not be earlier than that of such Original Indebtedness
or (ii) such Refinancing Indebtedness shall not be required to mature or to be repaid, prepaid, redeemed, repurchased or defeased, whether
on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, upon
the occurrence of an event of default, asset sale or a change in control or as and to the extent such repayment, prepayment, redemption,
repurchase or defeasance would have been required pursuant to the terms of such Original Indebtedness) prior to the date 91 days after
the Latest Maturity Date in effect on the date of such extension, renewal, replacement or refinancing; provided that, notwithstanding
the foregoing, scheduled amortization payments (however denominated) of such Refinancing Indebtedness shall be permitted so long as the
weighted average life to maturity of such Refinancing Indebtedness shall be no shorter than the weighted average life to maturity of
such Original Indebtedness remaining as of the date of such extension, renewal or refinancing (or, if shorter, 91 days after the Latest
Maturity Date in effect on the date of such extension, renewal or refinancing); (c) such Refinancing Indebtedness shall not constitute
an obligation (including pursuant to a Guarantee) of the Borrower or any Subsidiary, in each case that shall not have been (or, in the
case of after-acquired Subsidiaries, shall not have been required to become pursuant to the terms of the Original Indebtedness) an obligor
in respect of such Original Indebtedness, and shall not constitute an obligation of Holdings if Holdings shall not have been an obligor
in respect of such Original Indebtedness; (d) if such Original Indebtedness shall have been subordinated to the Loan Document Obligations,
such Refinancing Indebtedness shall also be subordinated to the Loan Document Obligations on terms not less favorable in any material
respect to the Lenders; (e) such Refinancing Indebtedness shall not be secured by any Lien on any asset other than the assets that secured
such Original Indebtedness (or would have been required to secure such Original Indebtedness pursuant to the terms thereof) or, in the
event Liens securing such Original Indebtedness shall have been contractually subordinated to any Lien securing the Loan Document Obligations,
by any Lien that shall not have been contractually subordinated to at least the same extent; and (f) if the proceeds of any Refinancing
Indebtedness in respect of any Original Indebtedness are not applied to refinance, repurchase or redeem such Original Indebtedness immediately
upon the incurrence thereof, to the extent that (x) the incurrence of such Refinancing Indebtedness is otherwise permitted under this
Agreement, (y) the proceeds of such Refinancing Indebtedness are applied to so refinance, repurchase or redeem such Original Indebtedness
on or prior to the ninetieth day following the date of the incurrence of such Refinancing Indebtedness and (z) the proceeds are segregated
and held in escrow prior to their application to refinance, repurchase or redeem such Original Indebtedness, from and after the date
of the incurrence of such Refinancing Indebtedness, such Original Indebtedness shall be deemed not to be outstanding for the purposes
of computation of any ratios hereunder (such Indebtedness described in this clause (f), “Excluded Refinanced Debt”).
“Refinancing
Revolving Commitments” has the meaning assigned to such term in Section 2.23(b).
“Refinancing
Revolving Commitments Effective Date” has the meaning assigned to such term in Section 2.23(b).
“Refinancing
Term Lender” means any Person that provides a Refinancing Term Loan.
56
“Refinancing
Term Loan Indebtedness” means (a) Permitted Second Priority Refinancing Debt, (b) Permitted Unsecured Refinancing Debt or (c)
Refinancing Term Loans obtained pursuant to a Refinancing Facility Agreement, in each case, issued, incurred or otherwise obtained (including
by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, refinance or replace, in whole or
part, existing Term Loans hereunder (including any successive Refinancing Term Loan Indebtedness) (such existing Term Loans and successive
Refinancing Term Loan Indebtedness, the “Refinanced Debt”); provided that (i) the principal amount (or accreted
value, if applicable) of such Refinancing Term Loan Indebtedness shall not exceed the principal amount (or accreted value, if applicable)
of such Refinanced Debt except by an amount equal to the sum of accrued and unpaid interest, accrued fees and premiums (if any) with respect
to such Refinanced Debt and fees and expenses associated with the refinancing of such Refinanced Debt with such Refinancing Term Loan
Indebtedness; provided, however, that, as part of the same incurrence or issuance of Indebtedness as such Refinancing Term
Loan Indebtedness, the Borrower may incur or issue an additional amount of Indebtedness under Section 6.01 without violating this clause
(i) (and, for purposes of clarity, (x) such additional amount of Indebtedness shall not constitute Refinancing Term Loan Indebtedness
and (y) such additional amount of Indebtedness shall reduce the applicable basket under Section 6.01, if any, on a dollar-for-dollar basis);
(ii) the stated final maturity of such Refinancing Term Loan Indebtedness shall not be earlier than 91 days after the Latest Maturity
Date of such Refinanced Debt, and such stated final maturity of such Refinancing Term Loan Indebtedness shall not be subject to any conditions
that could result in such stated final maturity occurring on a date that precedes the Latest Maturity Date of such Refinanced Debt; (iii)
such Refinancing Term Loan Indebtedness shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one
or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, on the stated
final maturity date as permitted pursuant to the preceding clause (ii) or upon the occurrence of an event of default, asset sale or a
change in control or as and to the extent such repayment, prepayment, redemption, repurchase or defeasance would have been required pursuant
to the terms of such Refinanced Debt) prior to the earlier of (A) the latest stated final maturity of such Refinanced Debt and (B) 91
days after the Latest Maturity Date in effect on the date of such extension, renewal or refinancing; provided that, notwithstanding
the foregoing, scheduled amortization payments (however denominated) of such Refinancing Term Loan Indebtedness in the form of Refinancing
Term Loans shall be permitted so long as the weighted average life to maturity of such Refinancing Term Loan Indebtedness in the form
of Refinancing Term Loans shall be no shorter than the weighted average life to maturity of such Refinanced Debt remaining as of the date
of such extension, replacement or refinancing; (iv) such Refinancing Term Loan Indebtedness shall not constitute an obligation (including
pursuant to a Guarantee) of the Borrower or any Subsidiary, in each case that shall not have been (or, in the case of after-acquired Subsidiaries,
shall not have been required to become pursuant to the terms of the Refinanced Debt) an obligor in respect of such Refinanced Debt, and,
in each case, shall constitute an obligation of the Borrower or such Subsidiary to the extent of its obligations in respect of such Refinanced
Debt and (v) in the case of Refinancing Term Loans, such Refinancing Term Loan Indebtedness shall contain terms and conditions that are
not materially more favorable (when taken as a whole) to the investors providing such Refinancing Term Loan Indebtedness than those applicable
to the existing Term Loans of the applicable Class being refinanced (other than (A) with respect to pricing, maturity, amortization, optional
prepayments and redemption and (B) covenants or other provisions applicable only to periods after the Latest Maturity Date) on the date
such Refinancing Term Loan is incurred.
“Refinancing
Term Loans” shall mean one or more Classes of term loans incurred by the Borrower under this Agreement pursuant to a Refinancing
Facility Agreement; provided that such Indebtedness constitutes Refinancing Term Loan Indebtedness in respect of Term Loans (including
portions of Classes of Term Loans).
57
“Register” has the meaning
assigned to such term in Section 9.04(b).
“Related
Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers,
employees, agents, trustees, managers, advisors, representatives and controlling persons of such Person or Affiliates.
“Release”
means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration
into or through the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within or upon
any building, structure, facility or fixture.
“Relevant
Governmental Body” means (i) with respect to a Benchmark Replacement in respect of Loans denominated in dollars, the Board of
Governors and/or the NYFRB, or a committee officially endorsed or convened by the Board of Governors and/or the NYFRB or, in each case,
any successor thereto and (ii) with respect to a Benchmark Replacement in respect of Loans denominated in any Permitted Foreign Currency,
(a) the central bank for the currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which
is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (b) any
working group or committee officially endorsed or convened by (1) the central bank for the currency in which such Benchmark Replacement
is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or
(B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability
Board or any part thereof.
“Repricing
Transaction” means (i) the prepayment or refinancing of all or a portion of the Initial Term Loans, Fourth Amendment Term Loans,
or Sixth Amendment Term Loans (as applicable) directly or indirectly, from the net proceeds of any broadly syndicated Indebtedness of
Holdings, the Borrower or any of their Subsidiaries, in each case having a lower Weighted Average Yield than such Initial Term Loans,
Fourth Amendment Term Loans or Sixth Amendment Term Loans (as applicable) or (ii) any amendment to the terms of such Initial Term Loans,
Fourth Amendment Term Loans or Sixth Amendment Term Loans (as applicable) that is effected for the primary purpose of reducing the Weighted
Average Yield applicable to such Initial Term Loans, Fourth Amendment Term Loans or Sixth Amendment Term Loans (as applicable), excluding,
in each case of clauses (i) and (ii), any such prepayment, refinancing or amendment made or effected in connection with a Change in Control
or Transformative Transactions.
“Required
Initial Term Lenders” means, at any time, Lenders having Initial Term Loans and unused Initial Term Commitments representing more
than 50% of the sum of the Initial Term Loans and unused Initial Term Commitments at such time.
“Required
Lenders” means, at any time, Lenders having Revolving Exposures, Term Loans and unused Commitments representing more than
50% of the sum of the Aggregate Revolving Exposure (with the aggregate of each Lender’s risk participation and funded
participation in Letters of Credit being deemed “held” by such Lender for purposes of this definition), outstanding Term
Loans and unused Commitments at such time; provided that whenever there is one or more Defaulting Lenders, the total
outstanding Term Loans and Revolving Exposures of, and the unused Commitments of, each Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
58
“Required
Revolving Lenders” means, at any time, Lenders having Revolving Exposures and unused Revolving Commitments representing more
than 50% of the sum of the Aggregate Revolving Exposure and unused Revolving Commitments at such time; provided that whenever there
are one or more Defaulting Lenders, the total outstanding Revolving Exposures of, and the unused Revolving Commitments of, each Defaulting
Lender, shall be excluded for purposes of making a determination of Required Revolving Lenders.
“Required
Initial Term Lenders” means, at any time, Lenders having Initial Term Loans and unused Initial Term Commitments
representing more than 50% of the sum of the Initial Term Loans and unused Initial Term Commitments at such time.
“Requirement
of Law” means, with respect to any Person, (a) the charter, articles or certificate of organization or incorporation and bylaws
or other organizational or governing documents of such Person and (b) any law (including common law), statute, ordinance, treaty, rule,
regulation, order, decree, writ, injunction, settlement agreement or determination of any arbitrator or court or other Governmental Authority,
in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Resolution
Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Debt
Payments” has the meaning assigned to such term in Section 6.08(b).
“Restricted Group”
means Holdings, the Borrower and the Restricted Subsidiaries.
“Restricted
Payment” means any dividend or other distribution (whether in cash, securities or other property) by Holdings, the Borrower
or any Restricted Subsidiary with respect to its Equity Interests, or any payment or distribution (whether in cash, securities or other
property) by Holdings, the Borrower or any Restricted Subsidiary, including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancelation or termination of its Equity Interests. For the avoidance of doubt, the IRA Termination
Payment shall not constitute a Restricted Payment.
“Restricted
Subsidiary” means each Subsidiary of Holdings other than an Unrestricted Subsidiary.
“Resulting Revolving
Borrowings” has the meaning assigned to such term in Section 2.21(d).
“Revolving
Availability Period” means the period from and including the Fourth Amendment Effective Date to but excluding the earlier of
the Revolving Maturity Date and the date of termination of all the Revolving Commitments.
59
“Revolving
Borrowing” means Revolving Loans of the same Class, Type and currency, made, converted or continued on the same date and, in
the case of Term Benchmark Revolving Loans, as to which a single Interest Period is in effect.
“Revolving
Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit hereunder, expressed as an amount representing the maximum possible aggregate amount of such Lender’s
Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08, (b) increased from time
to time pursuant to Section 2.21 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant
to Section 2.23 and Section 9.04. The initial amount of each Lender’s Revolving Commitment is set forth on Schedule 2.01
or in the Assignment and Assumption, Refinancing Facility Agreement or Incremental Facility Amendment pursuant to which such Lender shall
have assumed its Revolving Commitment, as applicable. The initial aggregate amount of the Lenders’ Revolving Commitments is $500,000,000
as of the FourthSecond
Amendment and Restatement Effective Date.
“Revolving Commitment
Increase” has the meaning assigned to such term in Section 2.21(a).
“Revolving
Commitment Increase Lender” means, with respect to any Revolving Commitment Increase, each Additional Lender providing a portion
of such Revolving Commitment Increase.
“Revolving
Exposure” means, with respect to any Revolving Lender at any time, the sum of (a) the outstanding principal amount of such Revolving
Lender’s Revolving Loans and (b) such Revolving Lender’s LC Exposure, in each case, at such time.
“Revolving
Lender” means a Lender with a Revolving Commitment or, if the Revolving Commitments have terminated or expired, a Lender with
Revolving Exposure.
“Revolving
Lender Parent” means, with respect to any Revolving Lender, any Person as to which such Revolving Lender is, directly or indirectly,
a subsidiary.
“Revolving
Loan” means a Loan made pursuant to clause (c) of Section 2.01.
“Revolving Maturity Date” means the
date that is five years after the FourthSecond
Amendment and Restatement Effective Date, as the same may be
extended pursuant to Section 2.22.
“S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor to its rating agency
business.
“Sanctioned
Country” means, at any time, a country, region, territory or government which is itself the subject or target of any Sanctions
(at the time of this Agreement, Cuba, Iran, North Korea, Syria and Crimea).
“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the
Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations
Security Council, the European Union or any European Union member state, Canada, His Majesty’s Treasury of the United Kingdom
or Hong Kong Monetary Authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or
controlled by any such Person or Persons described in the foregoing clauses (a) or (b).
60
“Sanctions”
means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government,
including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of
State or (b) the United Nations Security Council, the European Union, any European Union member state, Canada, His Majesty’s Treasury
of the United Kingdom or Hong Kong Monetary Authority.
“SEC”
means the United States Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.
“Second
Amendment to the Credit Agreement” means that certain Second Amendment
to theAmended and Restated
Credit Agreement, dated as of November 16June
30, 20202023,
among Holdings, U.S. HoldCo 1, U.S. HoldCo 2, the Borrower, the Lenders party thereto and the Administrative Agent.
“Second
Amendment and Restatement Agreement” means the Second Amendment and Restatement Agreement,
dated as of the Second Amendment and Restatement Effective Date,
among the Loan Parties, the Lenders party thereto,
the Administrative Agent and the Issuing Banks.
“Second
Amendment and Restatement Effective Date” means June 4, 2026.
“Secured Additional Letter of Credit Facility Obligations”
means the due and punctual payment of any and all obligations of (x) Holdings and each Loan Party and (y) each Restricted Subsidiary
that is not a Loan Party, in each case whether absolute or contingent and however and whenever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor) arising in respect of any Additional Letter
of Credit Facility established by Holdings, the Borrower and/or any Restricted Subsidiary to obtain letters of credit, bank guarantees,
bankers’ acceptances or other instruments required by customers, suppliers or landlords or otherwise required in the ordinary
course of businessOrdinary Course of Business that
(a)(i) are owed to the Administrative Agent or an Arranger or an Affiliate thereof, or any Person
that was the Administrative Agent or an Arranger or an Affiliate thereof at the time the agreements
in respect of such obligations were entered, incurred or that becomes the Administrative Agent or an Affiliate thereof thereafter, (ii)
are owed on the Amendment and Restatement Effective Date with a counterparty that is a Lender or an Affiliate of a Lender as of the Amendment
and Restatement Effective Date, (iii) are owed to a Person that is a Lender or an Affiliate of a Lender at the time such obligations
are incurred or becomes a Lender or an Affiliate of a Lender thereafter or (iv) are owed to any other Person and (b) are secured by the
Collateral.
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“Secured
Cash Management Obligations” means the due and punctual payment of any and all obligations of (x) Holdings and each Loan Party
and (y) each Restricted Subsidiary that is not a Loan Party, in each case whether absolute or contingent and however and whenever created,
arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) arising in respect
of Cash Management Services or in the case of clause (y) above only, local working capital and/or bilateral credit facilities that are
secured by the Collateral (such local working capital and/or bilateral credit facilities, the “Cash Management Financing Facilities”);
provided that at the time of incurrence of obligations incurred pursuant to clause (y) of this definition and after giving effect
thereto, the Non-Guarantor Debt Basket shall not have been exceeded, in each case that (a) (i) are owed to the Administrative Agent or
an Affiliate thereof, or to any Person that was the Administrative Agent or an Affiliate thereof at the time the agreements in respect
of such obligations were entered, incurred or that becomes the Administrative Agent or an Affiliate thereof thereafter, (ii) are owed
on the Second Amendment and Restatement Effective Date to a
Person that is a Lender or an Affiliate of a Lender as of the Second Amendment
and Restatement Effective Date or (iii) are owed to a Person that is a Lender or an Affiliate of a Lender at the time such obligations
are incurred or becomes a Lender or an Affiliate of a Lender thereafter and (b) are secured by the Collateral.
“Secured
Hedging Obligations” means the due and punctual payment of any and all obligations of Holdings, the Borrower and each Restricted
Subsidiary arising under each Hedging Agreement that (a)(i) is with a counterparty that is the Administrative Agent or an Arranger
or an Affiliate thereof, or any Person that was the Administrative Agent or an Arranger or an Affiliate
thereof at the time such Hedging Agreement was entered into or that becomes the Administrative Agent or an Arranger
or an Affiliate thereof thereafter, (ii) is in effect on the Second
Amendment and Restatement Effective Date with a counterparty that is a Lender or an Affiliate of a Lender as of the Second
Amendment and Restatement Effective Date or (iii) is entered into after the Second
Amendment and Restatement Effective Date with a counterparty that is a Lender or an Affiliate of a Lender at the time such Hedging Agreement
is entered into or that becomes a Lender or an Affiliate of a Lender thereafter and (b) are secured by the Collateral. Notwithstanding
the foregoing, in the case of any Excluded Swap Guarantor, “Secured Hedging Obligations” shall not include Excluded Swap Obligations
of such Excluded Swap Guarantor.
“Secured
Parties” means, collectively, (a) the Lenders, (b) the Administrative Agent, (c) each Issuing Bank, (d) each provider of Cash
Management Services the obligations under which constitute Secured Cash Management Obligations, (e) each counterparty to any Hedging Agreement
the obligations under which constitute Secured Hedging Obligations, (f) each Supply Chain Bank in a Secured Supply Chain Financing, (g)
each provider of an Additional Letter of Credit Facility which constitutes a Secured Additional Letter of Credit Facility Obligation and
(g) the successors and assigns of each of the foregoing.
“Secured
Supply Chain Financing” means any Supply Chain Financing that is entered into by and between the Borrower or any Restricted
Subsidiary and any Supply Chain Bank, including any such Supply Chain Financing that is in effect on the Second Amendment and Restatement Effective Date; provided that (a) the Borrower and the applicable Supply Chain Bank shall have designated
such Supply Chain Financing as a Secured Supply Chain Financing in writing delivered to the Administrative Agent in substantially the
form of Exhibit K (other than with respect to any Supply Chain Financings where the Administrative Agent or an Affiliate thereof is the
Supply Chain Bank), (b) Secured Supply Chain Financing Obligations in respect of Secured Supply Chain Financings shall not exceed the
greater of (x) $65,000,000 and (y) 16% of LTM Consolidated EBITDA and (c) any trade payables under any Secured Supply Chain Financing
shall become payable within 120 days from issuance thereof.
“Secured
Supply Chain Financing Obligations” means all obligations of the Borrower and the Restricted Subsidiaries in respect of any
Secured Supply Chain Financing.
“Securities Act” means
the United States Securities Act of 1933.
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“Security
Documents” means the Amended and Restated Guarantee Agreement, the Amended and Restated Collateral Agreement, any Acceptable Intercreditor Agreement, each Mortgage, each intellectual property
security agreement and each other security agreement or other instrument or document executed and delivered by any Loan Party
pursuant to any of the foregoing or pursuant to Section 5.12 or 5.13.
“Senior
Notes” means the $400,000,000 aggregate principal amount of senior unsecured notes due 2026 issued by the Borrower on or prior
to the Effective Date.
“Senior
Notes Documents” means the Senior Notes Indenture, all instruments, agreements and other documents evidencing or governing the
Senior Notes, providing for any Guarantee or other right in respect thereof, and all schedules, exhibits and annexes to each of the foregoing,
as may be amended pursuant to the terms hereof.
“Senior
Notes Indenture” means the Indenture dated as of October 19, 2018, among, inter alia, the Borrower and Deutsche Bank
Trust Company Americas, as trustee, in respect of the Senior Notes, as may be amended pursuant to the terms hereof.
“Senior
Notes Redemption” means the redemption of the Senior Notes on or about the Amendment and Restatement Effective Date in an aggregate
principal amount equal to $140,000,000.
“Sixth
Amendment” means the Sixth Amendment to the Amended and Restated Credit Agreement, dated as of August 13, 2025, among Holdings,
U.S. HoldCo 1, U.S. HoldCo 2, the Borrower, the other Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.
“Sixth
Amendment Effective Date” has the meaning assigned to such term in the Sixth Amendment.
“Sixth
Amendment Term Borrowing” means Sixth Amendment Term Loans of the same Class and Type made, converted or continued on the same
date and, in the case of Term Benchmark Loans, as to which a single Interest Period is in effect.
“Sixth
Amendment Term Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make a Sixth Amendment
Term Loan hereunder on the Sixth Amendment Effective Date, expressed as an amount representing the maximum principal amount of the Sixth
Amendment Term Loan to be made by such Lender hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08
or (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender’s Sixth Amendment Term Commitment is set forth in the Sixth Amendment or in the Assignment and Assumption pursuant
to which such Lender shall have assumed its Sixth Amendment Term Commitment, as applicable. The initial aggregate amount of the Lenders’
Sixth Amendment Term Commitments is $1,225,000,000 as of the Sixth Amendment Effective Date (prior to any funding thereof on such date).
“Sixth Amendment
Term Lenders” means a Lender with a Sixth Amendment Term Commitment or an outstanding Sixth Amendment Term Loan.
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“Sixth
Amendment Term Loans” means the Term Loans made by the Term Lenders pursuant to clause (a)(iii) of Section 2.01 on the Sixth
Amendment Effective Date.
“Sixth
Amendment Term Maturity Date” means the date that is seven years after the Sixth Amendment Effective Date, as the same may be
extended pursuant to Section 2.22.
“SOFR”
means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published
by the SOFR Administrator on the SOFR Administrator’s Website at approximately 8:00 a.m. (New York City time) on the immediately
succeeding Business Day.
“SOFR
Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR
Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org,
or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“Specified
ECF Percentage” means, with respect to any fiscal year of Holdings, (a) if the Consolidated Total Leverage Ratio as of the
last day of such fiscal year is greater than 2.00 to 1.00, 50%, (b) if the Consolidated Total Leverage Ratio as of the last day of such
fiscal year is less than or equal to 2.00 to 1.00 but greater than 1.50 to 1.00, 25%, and (c) if the Consolidated Total Leverage Ratio
as of the last day of such fiscal year is less than or equal to 1.50 to 1.00, 0%.
“Specified Net Proceeds Percentage”
means,
(a)
100%, if the Consolidated Total Leverage Ratio as of the end of the fiscal quarter of Holdings for which consolidated financial
statements have most recently been delivered to the Administrative Agent pursuant to Section 5.01(a) or 5.01(b) exceeds 1.475 to 1.00;
(b) 50%, if such Consolidated
Total Leverage Ratio is less than or equal to 1.475 to 1.00, but exceeds 0.975 to 1.00; and
(c)
0%, if such Consolidated Total Leverage Ratio is less than or equal to 0.975 to 1.00.
“Spin-Off
Documents” means the Distribution Agreement, the Transition Services Agreement, the agreement
set forth in clause (i) of the definition of “Tax Matters Agreement,Agreements”,
the Employee Matters Agreement, the Patent License Agreement and the Trademark License Agreement.
“Standard
Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by Holdings, the Borrower
or any Restricted Subsidiary thereof in connection with the Permitted Receivables Facility which are customary in an accounts receivable
financing transaction.
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“subsidiary”
means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated
financial statements if such financial statements were prepared in accordance with GAAP, as well as any other corporation, limited
liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held (unless parent does not Control such entity), or (b) that is,
as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent. In no event shall Cara C’air B.V. be considered a subsidiary of Holdings or any of its
subsidiaries unless the Borrower or Holdings otherwise elects by written notice to the Administrative Agent.
“Subsidiary” means
any subsidiary of Holdings.
“Successor
Holdings” has the meaning assigned to such term in Section 6.03(a)(v).
“Supply
Chain Bank” means any Person that (a) at the time it enters into a Supply Chain Financing (or on the Second Amendment and Restatement Effective Date), is the Administrative Agent, an Arranger, a Lender or an Affiliate of any such Person, in each
case, in its capacity as a party to such Supply Chain Financing and (b) any Supply Chain Bank Purchaser.
“Supply
Chain Bank Purchaser” means any subsequent purchaser of any trade payables that had been initially acquired by a Person that
was a Supply Chain Bank pursuant clause (a) of the definition thereof pursuant to a Secured Supply Chain Financing; provided that
such subsequent purchaser is designated as such in writing delivered to the Administrative Agent in substantially the form of Exhibit
K.
“Supply
Chain Financing” means any agreement under which any bank, financial institution or other Person may from time to time provide
any financial accommodation to any of the Borrower or any Restricted Subsidiary in connection with trade payables of the Borrower or any
Restricted Subsidiary, in each case issued for the benefit of any such bank, financial institution or such other person that has acquired
such trade payables pursuant to “supply chain” or other similar financing for vendors and suppliers of the Borrower or any
Restricted Subsidiaries, so long as (a) other than in the case of Secured Supply Chain Financing Obligations, such Indebtedness is unsecured
and (b) such Indebtedness represents amounts not in excess of those which the Borrower or any of its Restricted Subsidiaries would otherwise
have been obligated to pay to its vendor or supplier in respect of the applicable trade payables.
“Supported
QFC” has the meaning assigned to such term in Section 9.21. “Swap Obligations” means, with respect to
Holdings or any other Loan Party, an obligation to pay or perform under any agreement, contract or transaction that constitutes a
“swap” within the meaning of § 1a(47) of the Commodity Exchange Act.
“Syndication
Agents” means, collectively, JPMorgan Chase Bank, N.A., and BofA
Securities, Inc. and Morgan Stanley Senior Funding, Inc..
“Tax
Matters AgreementAgreements”
means, collectively, (i) the Tax Matters Agreement, dated as of October
19, 2018, between Honeywell and Holdings and (ii) the Tax Matters Agreement,
to be dated on or around the effective date of the ADI Spin-Off Transaction, between ADI Global Distribution Inc. and Holdings.
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“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 Benchmark”
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted Term SOFR Rate.
“Term
Borrowings” means the Initial Term Borrowings, the Fourth Amendment Term Borrowings, the Sixth Amendment Term Borrowings, and/or
the Incremental Term Loans, as the context requires.
“Term
Commitments” means, collectively, the Initial Term Commitments, the Fourth Amendment Term Commitments, the Sixth Amendment Term
Commitments and any commitments to make Incremental Term Loans.
“Term
Lenders” means, collectively, the Initial Term Lenders, the Fourth Amendment Term Lenders, the Sixth Amendment Term Lenders
and any Lenders with an outstanding Incremental Term Loan or a Commitment to make an Incremental Term Loan.
“Term
Loans” means, collectively, the Initial Term Loans, the Fourth Amendment Term Loans, the Sixth Amendment Term Loans and any
Incremental Term Loans.
“Term
SOFR Adjustment” means. (i) with respect to Revolving Loans, 0.10%, (ii) with respect to Initial Term
Loans, 0% and (iii) with respect to the Fourth Amendment Term Loans and Sixth Amendment Term Loans, 0%.
“Term SOFR
Determination Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate.
“Term
SOFR Rate” means, with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest Period,
the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement
of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator;
provided that if the Term SOFR Rate as so determined shall ever be less than the Floor, then the Term SOFR Rate shall be deemed to be
the Floor.
“Term
SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), with
respect to any Term Benchmark Borrowing denominated in Dollars and for any tenor comparable to the applicable Interest Period, the
rate per annum published by the CME Term SOFR Administrator and identified by the Administrative Agent as the forward-looking term
rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference
Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with
respect to the Term SOFR Rate has not occurred, then, so long as such day is otherwise a U.S. Government Securities Business Day,
the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of
the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term
SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than five (5) U.S.
Government Securities Business Days prior to such Term SOFR Determination Day.
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“Third
Amendment” means the Third Amendment to the Amended and Restated Credit Agreement, dated as of May 24, 2024, among Holdings,
U.S. HoldCo 1, U.S. HoldCo 2, the Borrower, the other Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.
“Third Amendment Effective
Date” means May 24, 2024.
“Trademark
License Agreement” means the Trademark License Agreement, dated as of October 19, 2018, between Honeywell and Holdings.
“Transaction
Costs” means all fees, costs and expenses incurred or payable by Holdings, the Borrower or any Subsidiary in connection with
the Transactions.
“Transactions”
means, collectively, (a) the execution, delivery and performance by each Loan Party
of the Loan Documents (including the Second Amendment and Restatement
Agreement and this Agreement) to which it is to be a party,
the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of Credit hereunder,
(b) the consummation of the Amendment and
Restatement Date Refinancing and (c) the
consummation of the Senior Notes Redemption.
“Transformative
Transactions” means any merger, acquisition, consolidation or similar transaction involving third-parties, in any case by the
Borrower or any Restricted Subsidiary that is either (a) not permitted by the terms of this Agreement immediately prior to the consummation
of such acquisition or (b) permitted by the terms of this Agreement immediately prior to the consummation of such acquisition, but would
not provide the Borrower and its Restricted Subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion
of the combined operations following such consummation, as determined by the Borrower acting in good faith.
“Transition
Services Agreement” means the Transition Services Agreement, dated as of October 19, 2018, between Honeywell and Resideo LLC,
a Delaware limited liability company (formerly Ademco Inc.,
a Delaware corporation).
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted Term SOFR Rate or the Alternate
Base Rate.
“U.S.
HoldCo 1” has the meaning assigned to such term in the introductory statement to this Agreement.
“U.S.
HoldCo 2” has the meaning assigned to such term in the introductory statement to this Agreement.
“U.S.
Intellectual Property” means Intellectual Property (as defined in the Amended and Restated Collateral Agreement) that is registered
or applied for in the United States.
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“U.S. Person”
means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“U.S.
Special Resolution Regimes” has the meaning assigned to such term in Section 9.21.
“U.S.
Subsidiary” means any Subsidiary organized under the laws of the United States of America, any State thereof or the District
of Columbia.
“U.S.
Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(f)(ii)(B)(3).
“UK
Financial InstitutionInstitutions”
means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom
Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated
by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates
of such credit institutions or investment firms.
“UK Resolution
Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of
any UK Financial Institution.
“Unadjusted
Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unaudited
Financial Statements” the unaudited combined balance sheets of Holdings as of September 30March
31, 20202026,
and the related unaudited combined statements of comprehensive income and cash flows for the three and
nine months ended on September 30March
31, 20202026.
“Uniform
Commercial Code” or “UCC” means the Uniform Commercial Code as the same may from time to time be in effect
in the State of New York.
“Unrestricted
Subsidiaries” means (a) ADI Escrow Issuer LLC, a Delaware limited
liability company, (b) any Subsidiary that is formed or acquired after the Second Amendment and Restatement Effective Date and is designated as an Unrestricted Subsidiary by the Borrower pursuant to Section 5.17 subsequent
to the Second Amendment and Restatement Effective Date and (bc)
any Subsidiary of an Unrestricted Subsidiary. As of the Second Amendment
and Restatement Effective Date, there are noADI
Escrow Issuer LLC, a Delaware limited liability company, is the sole Unrestricted SubsidiariesSubsidiary.
“Unrestricted
Subsidiary Reconciliation Statement” means in connection with the delivery of financial statements pursuant to Section 5.01(a)
or (b) (solely to the extent required under Section 5.01(c)), an unaudited financial statement (in substantially the same form) prepared
on the basis of consolidating the accounts of Holdings, the Borrower and the Restricted Subsidiaries and treating Unrestricted Subsidiaries
as if they were not consolidated with Holdings and otherwise eliminating all accounts of Unrestricted Subsidiaries, together with an explanation
of reconciliation adjustments in reasonable detail.
“U.S.
Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities
Industry and Financial Markets Association recommends that the fixed income
departments of its members be closed for the entire day for purposes of trading in United States government securities.
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“USA PATRIOT
Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001.
“Voting
Equity Interests” of any Person means the Equity Interests of such Person ordinarily having the power to vote for the election
of the directors of such Person.
“Weighted
Average Yield” means, with respect to any Term Loan, any Term Commitment or any other Loans or Commitments, the weighted average
yield to stated maturity thereof based on the interest rate or rates applicable thereto and giving effect to all upfront or similar fees
or original issue discount payable to the lenders with respect thereto and to any interest rate “floor”, but excluding any
prepayment premiums, customary arrangement, syndication, commitment, structuring, ticking, underwriting and other similar fees paid or
payable to the arrangers (or similar titles) or their Affiliates, in each case in their capacities as such in connection therewith and
that are not generally shared with all lenders providing such loans and commitments; provided that to the extent that the Reference
Rate on the effective date of such other loans or commitments is less than the interest rate floor, if any, applicable to such other loans
or commitments, then the amount of such difference shall be included in the calculation of the Weighted Average Yield of such other loans
or commitments; provided, further, that original issue discount and upfront fees (which shall be deemed to constitute like
amounts of original issue discount) shall be equated to interest margins based on the shorter of the remaining life to the stated maturity
and an assumed four-year life to maturity. For purposes of determining the Weighted Average Yield of any floating rate Indebtedness at
any time, the rate of interest applicable to such Indebtedness at such time shall be assumed to be the rate applicable to such Indebtedness
at all times prior to maturity; provided that appropriate adjustments shall be made for any changes in rates of interest provided for
in the documents governing such Indebtedness (other than those resulting from fluctuations in interbank offered rates, prime rates, Federal
funds rates or other external indices not influenced by the financial performance or creditworthiness of Holdings, the Borrower or any
Subsidiary).
“wholly
owned Subsidiary” means, with respect to any Person at any date, a subsidiary of such Person of which securities or other ownership
interests representing 100% of the Equity Interests (other than directors’ qualifying shares) are, as of such date, owned, controlled
or held by such Person or one or more wholly owned Subsidiaries of such Person or by such Person and one or more wholly owned Subsidiaries
of such Person.
“Withdrawal
Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Withholding
Agent” means any Loan Party, the Administrative Agent and, in the case of any U.S. federal withholding Tax, any other withholding
agent, if applicable.
“Write-Down
and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of
such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which
write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom,
any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a
liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of
that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or
instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or
any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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SECTION 1.02. Classification
of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving
Loan”) or by Type (e.g., a “Term Benchmark Loan”) or by Class and Type (e.g., a “Term Benchmark
Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving Borrowing”)
or by Type (e.g., a “Term Benchmark Borrowing”) or by Class and Type (e.g., a “Term Benchmark Revolving
Borrowing”).
SECTION 1.03. Terms
Generally. 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 or except as expressly provided herein, (a) any definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, supplemented
or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth in the Loan Documents),
(b) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended,
supplemented or otherwise modified (including by succession of comparable successor laws), unless otherwise expressly stated to the contrary,
(c) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (d) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (e) all references herein to Articles, Sections, Exhibits and Schedules shall be construed
to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (f) 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.
SECTION
1.04. Accounting Terms; GAAP; Borrower Representative. (a) Except as otherwise expressly provided herein, all terms of an accounting
or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that (i) if the Borrower
notifies the Administrative Agent that the Borrower requests an amendment to any provision (including any definition) hereof to eliminate
the effect of any change occurring after the Second Amendment and
Restatement Effective Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies
the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis
of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn
or such provision amended in accordance herewith, (ii) notwithstanding any other provision contained herein, all terms of an accounting
or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without
giving effect to any election under Statement of Financial Accounting Standards 159, The Fair Value Option for Financial Assets and Financial
Liabilities, or any successor thereto (including pursuant to Accounting Standard Codifications), to value any Indebtedness of Holdings,
the Borrower or any Subsidiary at “fair value”, as defined therein and (iii) notwithstanding any other provision contained
herein, all obligations of any person that are or would have been treated as operating leases for purposes
of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the
“ASU”) shall continue to be accounted for as operating leases for purposes of the Loan Documents (whether or not such operating
lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU
(on a prospective or retroactive basis or otherwise) to be treated as the
accounting for any lease shall be based on U.S. GAAP as in effect on December 15, 2018 and without giving effect to any subsequent changes
in U.S. GAAP (or the required implementation of any previously promulgated changes in U.S. GAAP) relating to the treatment of a lease
as an operating lease or capitalized lease obligations in Holdings’ financial statements
(provided that the only financial statements required to be delivered shall be those filed with the SEC).
(b)
The Borrower is hereby authorized to act as an agent and representative of the other Loan Parties party hereto in providing and
receiving notices, consents, certificates, other writing or statements on behalf of the other Loan Parties for purposes hereof
(including for purposes of Article II). Unless otherwise provided therein, the Administrative Agent may assume any notice, consent,
certificate, other writing or statement received from the Borrower is made on behalf of the other Loan Parties, and shall be
entitled to rely on, and shall incur no liability by acting upon, any such notice, consent, certificate, other writing or statement
accordingly.
SECTION 1.05. Pro
Forma Calculations. With respect to any period during which any acquisition permitted by this Agreement or any sale, transfer or other
disposition of any Equity Interests in a Subsidiary or all or substantially all the assets of a Subsidiary or division or line of business
of a Subsidiary outside the ordinary course of business Ordinary
Course of Business occurs, for purposes of determining compliance with the covenants contained in Sections 6.12 and 6.13 or otherwise
for purposes of determining the Consolidated Total Leverage Ratio, Consolidated Interest Expense, Consolidated Secured Leverage Ratio,
the Consolidated First Lien Secured Leverage Ratio and Consolidated EBITDA, calculations with respect to such period shall be made on
a Pro Forma Basis.
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SECTION
1.06. Limited Condition Transaction. (a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, when
calculating any applicable financial ratio or test or determining other compliance with this Agreement (including the determination of
compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would
result therefrom) in connection with the consummation of a Limited Condition Transaction, the date of determination of such ratio and
determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom or other applicable covenant
shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition
Transaction, an “LCT Election”, it being acknowledged and agreed that an LCT Election may be made at any time prior
to, contemporaneously with, or at any time after, the applicable LCT Test Date), be deemed to be (i) in the case of a Limited Condition
Transaction described in clause (i) of the definition thereof, the date the definitive agreements for such Limited Condition Transaction
are entered into.(ii) in the case of a Limited Condition Transaction described in clause (ii) of the definition thereof, the date of
giving of the irrevocable notice of redemption therefor, (iii) in the case of a Limited Condition Transaction described in clause (iii)
of the definition thereof, the date of giving of the irrevocable notice of the applicable Restricted Payment and (iv) in the case of
a Limited Condition Transaction described in clause (iv) of the definition thereof, July 30, 2025 (each such date in the foregoing clauses
(i) through (iv), a “LCT Test Date”) and if, after such financial ratios and tests and other provisions are measured
on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other transactions to be entered into in connection
therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the applicable
period being used to calculate such financial ratio ending prior to the LCT Test Date, the Borrower could have taken such action on the
relevant LCT Test Date in compliance with such ratios and provisions, such provisions shall be deemed to have been complied with; provided
that at the option of the Borrower, the relevant ratios and baskets may be recalculated at the time of consummation of such Limited Condition
Transaction. For the avoidance of doubt, (x) if any of such financial ratios or tests are exceeded (or, with respect to the Interest
Coverage Ratio, not reached) as a result of fluctuations in such ratio or test (including due to fluctuations in Consolidated EBITDA
or otherwise) at or prior to the consummation of the relevant Limited Condition Transaction, such financial ratios and tests and other
provisions will not be deemed to have been exceeded (or, with respect to the Interest Coverage Ratio, not reached) as a result of such
fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (y) such financial
ratios and tests and other provisions shall not be tested at the time of consummation of such Limited Condition Transaction or related
transaction. For the avoidance of doubt, if the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection
with any subsequent calculation of any financial ratio or test (excluding, for the avoidance of doubt, any ratio contained in Sections
6.12 or 6.13) or basket availability with respect to any Limited Condition Transaction on or following the relevant LCT Test Date and
prior to the earlier of the date on which such Limited Condition Transaction is consummated or, in the case of a Limited Condition Transaction
described in clause (i) thereof, the date that the definitive agreement for such Limited Condition Transaction is terminated or expires
without consummation of such Limited Condition Transaction, for purposes of determining whether such subsequent transaction is permitted
under this Agreement or any Loan Document, any such ratio, test or basket shall be required to comply with any such ratio, test or basket
on a Pro Forma Basis assuming such Limited Condition Transaction and the other transactions in connection therewith (including any incurrence
of Indebtedness and the use of proceeds thereof) have been consummated until such time as the applicable Limited Condition Transaction
has actually closed or the definitive agreement with respect thereto has been terminated or expires.
(b) Notwithstanding
anything to the contrary herein, with respect to any Indebtedness or Liens incurred in reliance on a provision of this Agreement that
does not require compliance with a financial ratio or test (including, without limitation, any tests based on the Consolidated Total Leverage
Ratio, Consolidated Interest Expense, Consolidated Secured Leverage Ratio, the Consolidated First Lien Secured Leverage Ratio or the Consolidated
EBITDA) (any such amounts, the “Fixed Amounts”) substantially concurrently with any Indebtedness or Liens incurred
in reliance on a provision of this Agreement that requires compliance with a financial ratio or test (including any tests based on the
Consolidated Total Leverage Ratio, Consolidated Interest Expense, Consolidated Secured Leverage Ratio, the Consolidated First Lien Secured
Leverage Ratio or the Consolidated EBITDA) (any such amounts, the “Incurrence-Based Amounts”), it is understood and
agreed that the Fixed Amounts shall be disregarded in the calculation of the financial ratio or test applicable to the incurrence of the
Incurrence-Based Amounts.
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SECTION
1.07. Change in GAAP. Upon written notice to the Administrative Agent, Holdings, the Borrower and the Restricted Subsidiaries
may elect to apply IFRS, in lieu of GAAP, which change shall take effect at the end of such fiscal quarter or year specified by the
Borrower and in which case all accounting terms (including financial ratios and other financial calculations for the test period
then ended and all subsequent periods) required to be submitted pursuant to this Agreement shall be prepared in conformity with
IFRS. As of such effective date, at the request of the Borrower the Administrative Agent shall enter into and is hereby authorized
by the Lenders to enter into an amendment to this Agreement which shall provide for and give effect to the change in GAAP.
SECTION
1.08. Delaware Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under
Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability
of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred
from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed
to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
SECTION 1.09.
Interest Rates; Benchmark Notification. The interest rate on a Loan denominated in dollars or a Permitted Foreign Currency may
be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform.
Upon the occurrence of a Benchmark Transition Event, Section 2.14(b) provides a mechanism for determining an alternative rate of interest.
The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration,
submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or
successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such
alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing
interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability.
The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any
interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any
relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources
or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced
in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender
or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages,
costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any
such rate (or component thereof) provided by any such information source or service.
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ARTICLE II
The Credits
SECTION
2.01. Commitments. Subject to the terms and conditions set forth herein, (a)(i) subject to the terms and conditions set forth
in the Fifth Amendment, each Initial Term Lender agrees to make (or is deemed to make) an Initial Term Loan denominated in dollars
to the Borrower on the Fifth Amendment Effective Date in a principal amount not exceeding its Initial Term Commitment, (ii) subject
to the terms and conditions set forth in the Fifth Amendment, each Fourth Amendment Term Lender agrees to make a Fourth Amendment
Term Loan denominated in dollars to the Borrower on the Fifth Amendment Effective Date in a principal amount not exceeding its
Fourth Amendment Term Commitment and (iii) subject to the terms and conditions set forth in the Sixth Amendment, each Sixth
Amendment Term Lender agrees to make a Sixth Amendment Term Loan denominated in dollars to the Borrower on the Sixth Amendment
Effective Date in a principal amount not exceeding its Sixth Amendment Term Commitment and (b) subject to the terms and conditions
set forth in the Fourth Amendment, each Revolving Lender agrees to make Revolving Loans denominated in dollars or a Permitted
Foreign Currency to the Borrower from time to time, in each case during the Revolving Availability Period, in an aggregate principal
amount that will not result in such Revolving Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment
or the Aggregate Revolving Exposure exceeding the Aggregate Revolving Commitment; provided that aggregate principal amount of
Revolving Loans made on the Fourth Amendment Effective Date to finance the Fourth Amendment Acquisition and the Target Debt
Refinancing (as defined in the Fourth Amendment) shall not exceed $75,000,000 (other than up to $10,000,000 to cash collateralize or
provide credit support with respect to existing letters of credit or similar instruments outstanding on the Fourth Amendment
Effective Date under facilities no longer available to the Target (as defined in the Fourth Amendment) or its subsidiaries as of the
Fourth Amendment Effective Date). Term Loans may be ABR Loans or Term Benchmark Loans, as further provided herein. Within the
foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving
Loans. Amounts repaid or prepaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans
and Borrowings. (a) Each Loan shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders
ratably in accordance with their respective Commitments of the applicable Class. The failure of any Lender to make any Loan required to
be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(b) Subject
to Section 2.16, each Borrowing shall be comprised entirely of ABR Loans or Term Benchmark Loans as the Borrower may request in accordance
herewith. Each Lender at its option may make any Term Benchmark Loan by causing any domestic or foreign branch or Affiliate of such Lender
to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan
advanced to it in accordance with the terms of this Agreement.
(c) At
the commencement of each Interest Period for any Term Benchmark Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided that a Term Benchmark Borrowing
that results from a continuation of an outstanding Term Benchmark Borrowing may be in an aggregate amount that is equal to such outstanding
Borrowing. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral
multiple of $100,000 and not less than $500,000. Borrowings of more than one Type and Class may be outstanding at the same time; provided
that there shall not be more than a total of six Term Benchmark Borrowings at any time outstanding. Notwithstanding anything to the contrary
herein, an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Aggregate Revolving
Commitment or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e).
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SECTION
2.03. Requests for Borrowings. To request a Revolving Borrowing or Term Borrowing, the Borrower shall notify the
Administrative Agent of such request by submitting a Borrowing Request (a) in the case of a Term Benchmark Borrowing, not later than
2:00 p.m., Local Time, three U.S. Government Securities Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 11:00 a.m., New York City time, one U.S. Government Securities Business Day before the date of
the proposed Borrowing (or, in the case of up to $100 million of ABR Borrowings outstanding of any time, on the date of the proposed
Borrowing). Each such Borrowing Request shall be irrevocable (provided that the Borrowing Request in connection with any
acquisition or other investment permitted under Section 6.04, may be conditioned on the closing of such acquisition or other
investment, as applicable) and shall be confirmed promptly by hand delivery or facsimile to the Administrative Agent of a written
Borrowing Request signed by a Financial Officer of the Borrower. Each such Borrowing Request shall specify the following information
(to the extent applicable, in compliance with Sections 2.01 and 2.02):
(i) specifying the Class of the requested Borrowing;
(ii) the
currency and the aggregate amount of such Borrowing;
(iii) the
requested date of such Borrowing, which shall be a Business Day;
(iv) whether
such Borrowing is to be an ABR Borrowing or a Term Benchmark Borrowing;
(v) in
the case of a Term Benchmark Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by
the definition of the term “Interest Period”;
(vi)
the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements
of Section 2.06(a), or, if the Borrowing is being requested to finance the reimbursement of an LC Disbursement in accordance with Section
2.05(e), the identity of the Issuing Bank that made such LC Disbursement; and
(vii)
that as of such date Sections 4.02(a) and 4.02(b) are satisfied.
If no election as to the Type
of Borrowing is specified then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any
requested Term Benchmark Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
If no currency is specified with respect to any requested Revolving Loan, the Borrower shall be deemed to have selected dollars. Promptly
following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the applicable
Class of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
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SECTION 2.04. [Reserved].
SECTION 2.05.
Letters of Credit. (a) General. Subject to the terms and conditions set forth herein, the Borrower may request (and each
Issuing Bank shall issue) Letters of Credit for the Borrower’s own account (or for the account of any Subsidiary so long as (x)
the Borrower is a joint and several co-applicant in respect of such Letter of Credit, provided that in the case of each of the
Existing Letters of Credit listed under “Part B” on Schedule 1.04 to the Fourth Amendment, notwithstanding anything to the
contrary contained in the letter of credit application and other agreement in respect thereof, the Borrower shall be deemed to be a joint
and several co-applicant or co-obligor in respect thereof, and (y) such Issuing Bank has completed its customary
“know your client” procedures with respect to such Subsidiary), and in a form reasonably acceptable to the Administrative
Agent and the applicable Issuing Bank, at any time and from time to time during the Revolving Availability Period. Notwithstanding anything
contained in any letter of credit application or other agreement (other than this Agreement or any Security Document) submitted by the
Borrower to, or entered into by the Borrower with, any Issuing Bank relating to any Letter of Credit, (i) all provisions of such letter
of credit application or other agreement purporting to grant Liens in favor of such Issuing Bank to secure obligations in respect of such
Letter of Credit shall be disregarded, it being agreed that such obligations shall be secured to the extent provided in this Agreement
and in the Security Documents, and (ii) in the event of any inconsistency between the terms and conditions of this Agreement and the terms
and conditions of such letter of credit application or such other agreement, as applicable, the terms and conditions of this Agreement
shall control. It is hereby acknowledged and agreed that each of the Existing Letters of Credit shall be deemed issued as a Letter of
Credit under this Agreement on the Fourth Amendment Effective Date and shall constitute a Letter of Credit for all purposes of this Agreement.
(b) Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit or the amendment,
renewal or extension of an outstanding Letter of Credit (other than any automatic extension permitted pursuant to paragraph
(c) of this Section), the Borrower shall hand deliver or fax (or transmit by electronic communication, if arrangements for
doing so have been approved by such Issuing Bank) to the applicable Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and specifying the requested date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the currency and amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be requested by the applicable Issuing Bank as necessary to enable the such Issuing Bank to
prepare, amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower also shall submit a
letter of credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit. An
Issuing Bank shall not be obligated to issue any trade Letter of Credit (unless it otherwise consents) and no Letter of Credit shall
be issued, amended, renewed or extended unless (and upon issuance, amendment, renewal or extension of any Letter of Credit the
Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (i)
the sum of the LC Exposure shall not exceed the LC Sublimit, (ii) the Aggregate Revolving Exposure shall not exceed the Aggregate
Revolving Commitment, (iii) the face amount of the Letters of Credit issued by the applicable Issuing Bank shall not exceed its LC
Commitment and (iv) following the effectiveness of any Maturity Date Extension Request with respect to the Revolving Commitments of
any Class, the LC Exposure in respect of all Letters of Credit of such Class having an expiration date after the fifth Business Day
prior to the applicable Existing Maturity Date shall not exceed the aggregate Revolving Commitments of such Class of the Consenting
Lenders extended pursuant to Section 2.22. Each Issuing Bank agrees that it shall not permit any issuance, amendment, renewal
or extension of a Letter of Credit to occur unless it shall give to the Administrative Agent written notice thereof as required
under paragraph (l) of this Section. Notwithstanding anything herein to the contrary, an Issuing Bank shall have no obligation
hereunder to issue any Letter of Credit if (x) any law applicable to such Issuing Bank from any Governmental Authority with
jurisdiction over such Issuing Bank shall prohibit the issuance of letters of credit generally or the Letter of Credit in particular
or (y) such issuance shall violate such Issuing Bank’s internal policies that are applicable to letters of credit
generally.
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(c) Expiration
Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date that is one year after
the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Revolving Maturity Date (unless such Letters of Credit have been
cash collateralized or backstopped on or prior to such fifth Business Day pursuant to arrangements reasonably satisfactory to the applicable
Issuing Bank); provided that (x) any Letter of Credit may, upon the request of the Borrower, include a provision whereby such
Letter of Credit shall be renewed automatically for additional periods (but not beyond the date that is five Business Days prior to the
Revolving Maturity Date (unless such Letters of Credit have been cash collateralized or backstopped on or prior to such fifth Business
Day pursuant to arrangements reasonably satisfactory to the applicable Issuing Bank)) unless the applicable Issuing Bank notifies the
beneficiary thereof at least 30 days prior to the then-applicable expiration date that such Letter of Credit will not be renewed and
(y) clause (c)(i) above shall not apply to a Letter of Credit if such long-dated Letter of Credit is consented to by the applicable Issuing
Bank. For the avoidance of doubt, if the Revolving Maturity Date in respect of any Class of Revolving Commitments shall be extended pursuant
to Section 2.22, “Revolving Maturity Date” as referenced in this paragraph shall refer, with respect to the Class of Letters
of Credit associated with such Class of Revolving Commitments, to the Revolving Maturity Date in respect of any Class of Revolving Commitments
as extended pursuant to Section 2.22; provided that, notwithstanding anything in this Agreement (including Section 2.22 hereof)
or any other Loan Document to the contrary, the Revolving Maturity Date, as such term is used in reference to any Issuing Bank or any
Letter of Credit issued thereby, may not be extended with respect to any Issuing Bank without the prior written consent of such Issuing
Bank.
(d) Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action
on the part of the applicable Issuing Bank or the Lenders, the Issuing Bank that is the issuer of such Letter of Credit hereby grants
to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit
equal to such Revolving Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit.
In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the applicable Issuing Bank, such Revolving Lender’s Applicable Percentage of each LC
Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section,
or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
Each Revolving Lender further
acknowledges and agrees that, in issuing, amending, renewing or extending any Letter of Credit, the applicable Issuing Bank shall be entitled
to rely, and shall not incur any liability for relying, upon the representation and warranty of Holdings and the Borrower deemed made
pursuant to Section 4.02 unless, at least one Business Day prior to the time such Letter of Credit is issued, amended, renewed or extended
(or, in the case of an automatic extension permitted pursuant to paragraph (c) of this Section, at least one Business Day prior to the
time by which the election not to extend must be made by the applicable Issuing Bank), the Majority in Interest of the Revolving Lenders
shall have notified the applicable Issuing Bank (with a copy to the Administrative Agent) in writing that, as a result of one or more
events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.02(a) or 4.02(b) would
not be satisfied if such Letter of Credit were then issued, amended, renewed or extended (it being understood and agreed that, in the
event any Issuing Bank shall have received any such notice, no Issuing Bank shall have any obligation to issue, amend, renew or extend
any Letter of Credit until and unless it shall be satisfied that the events and circumstances described in such notice shall have been
cured or otherwise shall have ceased to exist).
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(e) Reimbursement.
If an Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, then the Borrower shall reimburse such LC Disbursement
by paying to the Administrative Agent an amount equal to such LC Disbursement not later than (i) if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., Local Time, on any Business Day, then 12:00 noon, Local Time, on such Business Day,
or (ii) otherwise, 12:00 noon, Local Time, on the Business Day immediately following the day that the Borrower receives such notice;
provided that, in the case of an LC Disbursement denominated in dollars in an amount equal to or in excess of $500,000, the Borrower
may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed with
an ABR Revolving Borrowing in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make such payment
shall be discharged and replaced by the resulting ABR Revolving Borrowing. If the Borrower fails to reimburse any LC Disbursement by
the time specified above in this paragraph, then the Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement,
the currency and amount of the payment then due from the Borrower in respect thereof and such Revolving Lender’s Applicable Percentage
thereof. Promptly following receipt of such notice, each applicable Revolving Lender shall pay to the Administrative Agent its Applicable
Percentage of the amount then due from the Borrower in the currency of the applicable LC Disbursement, in the same manner as provided
in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations
of the Revolving Lenders under this paragraph), and the Administrative Agent shall promptly remit to the applicable Issuing Bank the
amounts so received by it from the applicable Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment
from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or,
to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving
Lenders and such Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph to reimburse
an Issuing Bank for any LC Disbursement (other than the funding of an ABR Revolving Borrowing as contemplated above) shall not constitute
a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.
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(f) Obligations
Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any
and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision thereof or hereof, (ii) any draft or other document presented under a Letter of Credit proving
to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment
by an Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of
such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. None of the Administrative Agent, the Lenders, the Issuing Banks or any of their Related
Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of
Credit, any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding
sentence), any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond the control of the applicable Issuing Bank; provided
that the foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrower to the extent of any direct
damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to
exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.
The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of an Issuing Bank (as
finally determined by a court of competent jurisdiction in a final and nonappealable judgment), such Issuing Bank shall be deemed to
have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of
a Letter of Credit, an Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make
payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit, and any such
acceptance or refusal shall be deemed not to constitute gross negligence or willful misconduct.
(g) Disbursement Procedures. Each Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit. Each Issuing Bank shall promptly notify the Administrative Agent and the Borrower
in writing (via hand delivery, facsimile or other electronic imaging) of such demand for payment and whether such Issuing Bank has made
or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve
the Borrower of its obligation to reimburse such Issuing Bank and the applicable Revolving Lenders with respect to any such LC Disbursement
in accordance with paragraph (e) of this Section.
(h) Interim
Interest. If an Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement in full, at (i) in the
case of any LC Disbursement denominated in dollars, the rate per annum then applicable to ABR Revolving Loans and (ii) in the case
of an LC Disbursement denominated in any Permitted Foreign Currency, a rate per annum determined by the applicable Issuing Bank
(which determination will be conclusive absent manifest error) to represent its cost of funds plus the Applicable Rate used
to determine interest applicable to Term Benchmark Revolving Loans; provided that, if the Borrower fails to reimburse such LC
Disbursement in full when due pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply. Interest accrued pursuant
to this paragraph shall be paid to the Administrative Agent, for the account of the applicable Issuing Bank, except that interest
accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (e) of this Section to reimburse such Issuing
Bank shall be for the account of such Lender to the extent of such payment, and shall be payable on demand or, if no demand has been
made, on the date on which the Borrower reimburses the applicable LC Disbursement in full.
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(i) Cash
Collateralization. If any Event of Default shall occur and be continuing, on the Business Day on which the Borrower receives
notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, a Majority in
Interest of the Revolving Lenders) demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit
in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lenders,
an amount in cash (in the currency of each applicable Letter of Credit) equal to the LC Exposure of the Revolving Lenders with
respect to the Letters of Credit issued on behalf of the Borrower as of such date plus any accrued and unpaid interest thereon; provided
that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (h) or (i) of Section 7.01. The Borrower also shall deposit cash collateral in accordance with this
paragraph as and to the extent required by Section 2.11(b), 2.20(c) or 2.22(c). Each such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion
of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Notwithstanding the terms of any Security Document, moneys in
such account shall be applied by the Administrative Agent to reimburse the Issuing Banks for LC Disbursements for which they have
not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the
Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to (i) the consent of a
Majority in Interest of the Revolving Lenders (treating the Classes of Revolving Commitments and Revolving Loans as one Class) and
(ii) in the case of any such application at a time when any Revolving Lender is a Defaulting Lender (but only if, after giving
effect thereto, the remaining cash collateral shall be less than the aggregate LC Exposure of all the Defaulting Lenders), the
consent of each Issuing Bank), be applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the
extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been
cured or waived. If the Borrower is required to provide an amount of cash collateral hereunder pursuant to Section 2.11(b), such
amount (to the extent not applied as aforesaid) shall be returned to the Borrower to the extent that, after giving effect to such
return, the Aggregate Revolving Exposure in respect of the Revolving Commitments or Revolving Loans would not exceed the Aggregate
Revolving Commitment and no Default shall have occurred and be continuing. If the Borrower is required to provide an amount of cash
collateral hereunder pursuant to Section 2.20(c), such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower to the extent that, after giving effect to such return, no Issuing Bank shall have any exposure in respect of any
outstanding Letter of Credit that is not fully covered by the Revolving Commitments of the non-Defaulting Lenders and/or the
remaining cash collateral and no Default shall have occurred and be continuing.
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(j) Designation
of Additional Issuing Banks. The Borrower may, at any time and from time to time with notice to the Administrative Agent,
designate as additional Issuing Banks one or more Revolving Lenders, that agree to serve in such capacity as provided below. The
acceptance by a Revolving Lender of an appointment as an Issuing Bank hereunder shall be evidenced by an agreement, which shall be
in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the
Administrative Agent and such designated Revolving Lender and, from and after the effective date of such agreement, (i) such
Revolving Lender shall have all the rights and obligations of an Issuing Bank under this Agreement and (ii) references herein to the
term “Issuing Bank” shall be deemed to include such Revolving Lender in its capacity as an issuer of Letters of Credit
hereunder.
(k) Resignation
or Termination of an Issuing Bank. Any Issuing Bank may resign as a “Issuing Bank” hereunder upon 30 days’ prior
written notice to the Administrative Agent, the Lenders, and the Borrower; provided that on or prior to the expiration of such
30-day period with respect to such resignation, the relevant Issuing Bank shall have identified a successor Issuing Bank reasonably acceptable
to the Borrower willing to accept its appointment as successor Issuing Bank and the effectiveness of such resignation shall be conditioned
upon such successor assuming the rights and duties of the Issuing Bank. In the event of any such resignation as Issuing Bank, the Borrower
shall be entitled to appoint from among the Lenders a successor Issuing Bank hereunder; provided, however, that no failure
by the Borrower to appoint any such successor shall affect the resignation of the resigning Issuing Bank except as expressly provided
above. The Borrower may terminate the appointment of any Issuing Bank as an “Issuing Bank” hereunder by providing a written
notice thereof to such Issuing Bank, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier
of (i) such Issuing Bank acknowledging receipt of such notice and (ii) the third Business Day following the date of the delivery thereof;
provided that no such termination shall become effective until and unless the LC Exposure attributable to Letters of Credit issued
by such Issuing Bank (or its Affiliates) shall have been reduced to zero. At the time any such resignation or termination shall become
effective, the Borrower shall pay all unpaid fees accrued for the account of the resigning or terminated Issuing Bank pursuant to Section
2.12(b). Notwithstanding the effectiveness of any such resignation or termination, the resigning or terminated Issuing Bank shall remain
a party hereto and shall continue to have all the rights of an Issuing Bank under this Agreement with respect to Letters of Credit issued
by it prior to such resignation or termination, but shall not be required to issue any additional Letters of Credit.
(l) Issuing
Bank Reports to the Administrative Agent. Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in
addition to its notification obligations set forth elsewhere in this Section, report in writing to the Administrative Agent (i)
periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of
Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancelations
and all disbursements and reimbursements, (ii) reasonably prior to the time that such Issuing Bank issues, amends, renews or extends
any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the stated amount of the Letters of Credit
issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension
(and whether the amounts thereof shall have changed), (iii) on each Business Day on which such Issuing Bank makes any LC
Disbursement, the date and amount of such LC Disbursement, (iv) on any Business Day on which the Borrower fails to reimburse an LC
Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and the currency and amount of
such LC Disbursement and (v) on any other Business Day, such other information as the Administrative Agent shall reasonably request
as to the Letters of Credit issued by such Issuing Bank.
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(m) LC
Exposure Determination. For all purposes of this Agreement, the amount of a Letter of Credit that, by its terms or the terms of any
document related thereto, provides for one or more automatic increases in the stated amount thereof shall be deemed to be the maximum
stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect
at the time of determination. 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 any 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.
SECTION 2.06. Funding
of Borrowings. (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately
available funds by 12:00 noon, Local Time, to the account of the Administrative Agent most recently designated by it for such purpose
by notice to the Lenders. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so
received, in like funds, to an account of the Borrower and designated by the Borrower in the applicable Borrowing Request; provided
that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement denominated in dollars as provided in Section 2.05(e)
shall be remitted by the Administrative Agent to the applicable Issuing Bank or, to the extent that Revolving Lenders have made payments
pursuant to Section 2.05(e) to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their interests may
appear.
(b)
Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any 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 paragraph (a) of this Section and may, in
reliance upon such assumption and in its sole discretion, make available to the 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 Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment
to the Administrative Agent, at (i) in the case of such Lender, (A) in the case of Loans denominated in dollars, the greater of the
NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and
(B) in the case of Loans denominated in a Permitted Foreign Currency, the rate determined by the Administrative Agent to be the cost
to it of funding such amount (which determination will be conclusive absent manifest error) or (ii) in the case of the Borrower, the
interest rate applicable to (A) in the case of Loans denominated in dollars, ABR Loans of the applicable Class and (B) in the case
of Loans denominated in a Permitted Foreign Currency, the interest rate applicable to the subject Loan pursuant to Section 2.13. If
the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such
Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.
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SECTION 2.07.
Interest Elections. (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request or designated
by Section 2.03 and, in the case of a Term Benchmark Borrowing, shall have an initial Interest Period as specified in such Borrowing Request
or designated by Section 2.03. Thereafter, the Borrower may elect to convert such Borrowing to a Borrowing of a different Type (provided
that Term Benchmark Borrowings denominated in a Permitted Foreign Currency may not be converted into ABR Borrowings but instead must be
prepaid in the original currency of such Loan) or to continue such Borrowing and, in the case of a Term Benchmark Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions
of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.
(b) To
make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election in writing by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting
from such election to be made on the effective date of such election. Each such Interest Election Request shall be irrevocable and shall
be confirmed promptly by hand delivery, facsimile or other electronic transmission to the Administrative Agent of a written Interest
Election Request signed by a Financial Officer of the Borrower.
(c) Each
Interest Election Request shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant
to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Term Benchmark Borrowing; and
(iv) if
the resulting Borrowing is to be a Term Benchmark Borrowing, the Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request
requests a Term Benchmark Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest
Period of one month’s duration.
(d) Promptly
following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the applicable Class of the details
thereof and of such Lender’s portion of each resulting Borrowing.
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(e) If
the Borrower fails to deliver a timely Interest Election Request with respect to a Term Benchmark Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period (i) in the case
of a Term Benchmark Borrowing denominated in dollars, such Borrowing shall be converted to an ABR Borrowing and (ii) in the case of a
Term Benchmark Borrowing denominated in a Permitted Foreign Currency, such Borrowing shall be continued as a Borrowing of the applicable
Type for an Interest Period of one month. Notwithstanding any contrary provision hereof, if an Event of Default under clause (h) or (i)
of Section 7.01 has occurred and is continuing with respect to Holdings or the Borrower, or if any other Event of Default has occurred
and is continuing and the Administrative Agent, at the request of a Majority in Interest of the Lenders of any Class has notified the
Borrower of the election to give effect to this sentence on account of such other Event of Default, then, in each such case, so long
as such Event of Default is continuing, (i) no outstanding Borrowing (or Borrowing of the applicable Class, as applicable) denominated
in dollars may be converted to or continued as a Term Benchmark Borrowing, (ii) unless repaid, each Term Benchmark Borrowing (or Term
Benchmark Borrowing of the applicable Class, as applicable) shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto and (iii) unless repaid, each Term Benchmark Borrowing denominated in a Permitted Foreign Currency shall be continued
as a Term Benchmark Borrowing with an Interest Period of one month’s duration.
SECTION 2.08.
Termination and Reduction of Commitments. (a) Unless previously terminated, (i) the Initial Term Commitments shall automatically
terminate and be reduced to $0 on the Fifth Amendment Effective Date upon the making (or deemed making) of the Initial Term Loans, (ii)
the Fourth Amendment Term Commitments shall automatically terminate and be reduced to $0 on the Fifth Amendment Effective Date upon the
making of the Fourth Amendment Term Loans, (iii) the Sixth Amendment Term Commitments shall automatically terminate and be reduced to
$0 on the Sixth Amendment Effective Date upon the making of the Sixth Amendment Term Loans and (iv) the Revolving Commitments shall automatically
terminate and be reduced to $0 on the Revolving Maturity Date.
(b) The
Borrower may at any time terminate, or from time to time permanently reduce, the Commitments of any Class; provided that (i) each
partial reduction of the Commitments of any Class shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000
and (ii) the Borrower shall not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of
the Revolving Loans in accordance with Section 2.11, the Aggregate Revolving Exposure would exceed the Aggregate Revolving Commitment.
(c) The
Borrower shall notify the Administrative Agent of any election to terminate or reduce the Commitments under paragraph (b) of this Section
at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class
of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a
notice of termination or reduction of the Revolving Commitments delivered under this paragraph may state that such notice is conditioned
upon the occurrence of one or more events specified therein, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of
the Commitments of any Class shall be permanent. Each reduction of the Commitments of any Class shall be made ratably among the Lenders
in accordance with their respective Commitments of such Class.
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SECTION 2.09.
Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for
the account of each Revolving Lender the then unpaid principal amount of each Revolving Loan made by such Revolving Lender to the Borrower
on the Revolving Maturity Date, (ii) to the Administrative Agent for the account of each Initial Term Lender the then unpaid principal
amount of each Initial Term Loan made (or deemed to have been made) by such Initial Term Lender to the Borrower on the Initial Term Maturity
Date, (iii) to the Administrative Agent for the account of each Initial Term Lender the then unpaid principal amount of each Initial Term
Loan made (or deemed to have been made) by such Initial Term Lender to the Borrower as provided in Section 2.10, (iv) to the Administrative
Agent for the account of each Fourth Amendment Term Lender the then unpaid principal amount of each Fourth Amendment Term Loan made by
such Fourth Amendment Term Lender to the Borrower on the Fourth Amendment Term Maturity Date, (v) to the Administrative Agent for the
account of each Fourth Amendment Term Lender the then unpaid principal amount of each Fourth Amendment Term Loan made by such Fourth Amendment
Term Lender to the Borrower as provided in Section 2.10, (vi) to the Administrative Agent for the account of each Sixth Amendment Term
Lender the then unpaid principal amount of each Sixth Amendment Term Loan made by such Sixth Amendment Term Lender to the Borrower on
the Sixth Amendment Term Maturity Date and (vii) to the Administrative Agent for the account of each Sixth Amendment Term Lender the then
unpaid principal amount of each Sixth Amendment Term Loan made by such Sixth Amendment Term Lender to the Borrower as provided in Section
2.10.
(b) Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder. The records maintained by the Administrative Agent and the Lenders shall be prima facie
evidence of the existence and amounts of the obligations of the Borrower in respect of Loans made to the Borrower, LC Disbursements,
interest and fees due or accrued, in each case, with respect to the Borrower hereunder; provided that the failure of the Administrative
Agent or any Lender to maintain such records or any error therein shall not in any manner affect the obligation of the Borrower to pay
any amounts due hereunder in accordance with the terms of this Agreement. In the event of any inconsistency between the entries made
pursuant to paragraphs (b) and (c) of this Section 2.09, the accounts maintained by the Administrative Agent maintained pursuant to paragraph
(c) of this Section 2.09 shall control.
(c) The
Administrative Agent shall, in connection with maintenance of the Register in accordance with Section 9.04(b)(iv) maintain accounts in
which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal, premium, interest or fees due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof.
(d) Any
Lender may request that Loans of any Class made by it be evidenced by a promissory note. In such event, the Borrower of such Loans shall
prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender
and its registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note
and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and
its registered assigns).
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SECTION
2.10. Amortization of Term Loans. (a) Subject to adjustment pursuant to paragraph (d) of this Section, the Borrower shall repay
to the Administrative Agent, for the account of each Fourth Amendment Term Lender, Fourth Amendment Term Borrowings on each date set
forth below in the aggregate principal amount set forth opposite such date (provided that if any such date is not a Business Day, such
payment shall be due on the immediately preceding Business Day):
Date
Amount
December 31,2024
$ 1,500,000.00
March 31,2025
$ 1,500,000.00
June 30,2025
$ 1,500,000.00
September 30,2025
$ 1,500,000.00
December 31,2025
$ 1,500,000.00
March 31,2026
$ 1,500,000.00
June 30,2026
$ 1,500,000.00
September 30,2026
$ 1,500,000.00
December 31,2026
$ 1,500,000.00
March 31,2027
$ 1,500,000.00
June 30,2027
$ 1,500,000.00
September 30,2027
$ 1,500,000.00
December 31,2027
$ 1,500,000.00
March 31,2028
$ 1,500,000.00
June 30,2028
$ 1,500,000.00
September 30,2028
$ 1,500,000.00
December 31,2028
$ 1,500,000.00
March 31,2029
$ 1,500,000.00
June 30,2029
$ 1,500,000.00
September 30, 2027
$ 1,500,000.00
December 31, 2027
$ 1,500,000.00
March 31, 2030
$ 1,500,000.00
June 30, 2030
$ 1,500,000.00
September 30, 2030
$ 1,500,000.00
December 31, 2030
$ 1,500,000.00
March 31, 2031
$ 1,500,000,00
Fourth Amendment Term Maturity Date
Balance of any remaining outstanding principal amount of Fourth Amendment
Term Loans
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(b) Subject to adjustment pursuant to paragraph (d) of this Section, the Borrower shall repay to the Administrative Agent, for the
account of each Sixth Amendment Term Lender, Sixth Amendment Term Borrowings on each date set forth below in the aggregate principal amount
set forth opposite such date (provided that if any such date is not a Business Day, such payment shall be due on the immediately preceding
Business Day):
Date
Amount
December 31, 2025
$ 3,062,500.00
March 31, 2026
$ 3,062,500.00
June 30, 2026
$ 3,062,500.00
September 30, 2026
$ 3,062,500.00
December 31, 2026
$ 3,062,500.00
March 31, 2027
$ 3,062,500.00
June 30, 2027
$ 3,062,500.00
September 30, 2027
$ 3,062,500.00
December 31, 2027
$ 3,062,500.00
March 31, 2028
$ 3,062,500.00
June 30, 2028
$ 3,062,500.00
September 30, 2028
$ 3,062,500.000
December 31,2028
$ 3,062,500.000
March 31, 2029
$ 3,062,500.000
June 30, 2029
$ 3,062,500.000
September 30, 2029
$ 3,062,500.000
December 31, 2029
$ 3,062,500.00
March 31, 2030
$ 3,062,500.00
June 30, 2030
$ 3,062,500.00
September 30, 2030
$ 3,062,500.000
December 31, 2030
$ 3,062,500.00
March 31, 2031
$ 3,062,500.000
June 30, 2031
$ 3,062,500.000
September 30,2031
$ 3,062,500.00
December 31,2031
$ 3,062,500.000
March 31, 2032
$ 3,062,500.00
June 30, 2032
$ 3,062,500.00
Sixth Amendment Term Maturity Date
Balance of any remaining outstanding principal amount of Sixth
Amendment Term Loans
(c) To the extent not previously paid, (i) the Borrower shall pay to the Administrative Agent for the account of the Initial Term Lenders
the then unpaid principal amount of the Initial Term Loans on the Initial Term Maturity Date, (ii) the Borrower shall pay to the Administrative
Agent for the account of the Fourth Amendment Term Lenders the then unpaid principal amount of the Fourth Amendment Term Loans on the
Fourth Amendment Term Maturity Date and (iii) the Borrower shall pay to the Administrative Agent for the account of the Sixth Amendment
Term Lenders the then unpaid principal amount of the Sixth Amendment Term Loans on the Sixth Amendment Term Maturity Date.
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(d) Any
prepayment by the Borrower of a Term Borrowing of any Class shall be applied to reduce the subsequent scheduled repayments of the
Term Borrowings of such Class to be made pursuant to this Section as directed in writing by the Borrower (or absent such direction,
in direct order of maturity thereof); provided that (A) any prepayment of any Class of Incremental Term Borrowings shall be
applied to subsequent scheduled repayments as provided in the applicable Incremental Facility Amendment, (B) any prepayment of Term
Borrowings of any Class contemplated by Section 2.23 shall be applied to subsequent scheduled repayments as provided in such
Section, (C) mandatory prepayments of Term Borrowings shall be applied to scheduled repayments of such Term Borrowings in direct
order of maturity and (D) if any Lender elects to decline a mandatory prepayment of a Term Borrowing in accordance with Section
2.11(f), then the portion of such prepayment not so declined shall be applied to reduce the subsequent repayments of such Term
Borrowing to be made pursuant to this Section ratably based on the amount of such scheduled repayments.
(e) Prior
to any repayment of any Term Borrowings of any Class under this Section, the Borrower shall select the Borrowing or Borrowings of the
applicable Class to be repaid and shall notify the Administrative Agent in writing (via hand delivery, facsimile or other electronic
imaging) of such selection not later than 12:00 p.m., New York City time, two Business Days before the scheduled date of such repayment. Each
repayment of a Term Borrowing shall be applied ratably to the Loans included in the repaid Term Borrowing. Repayments of Term Borrowings
shall be accompanied by accrued interest on the amount repaid.
SECTION
2.11. Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in
whole or in part, without premium or penalty (except as set forth in clause (h) of this Section 2.11), subject to Section 2.16. For
the avoidance of doubt, any ADI Spin-Off Prepayment shall be an optional prepayment pursuant to this Section 2.11(a).
(b) In
the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall prepay
its Revolving Borrowings (or, if no such Revolving Borrowings are outstanding, deposit cash collateral in an account with the Administrative
Agent in accordance with Section 2.05(i)) in an aggregate amount equal to such excess.
(c) In
the event and on each occasion that any Net Proceeds are received by or on behalf of Holdings, the Borrower or any Restricted
Subsidiary in respect of any Prepayment Event (including by the Administrative Agent as loss payee in respect of any Prepayment
Event described in clause (b) of the definition of the term “Prepayment Event”), the Borrower shall, within five
Business Days after such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal (i) in the case of any event
described in clause (a) or (b) of the definition of the term “Prepayment Event”, the Specified Net Proceeds Percentage
or (ii) in the case of any event described in clause (c) of the definition of the term “Prepayment Event”, 100%, in each
case of the foregoing clauses (i) and (ii), of the amount of such Net Proceeds (or, if the Borrower or any of its Restricted
Subsidiaries has incurred Indebtedness that is permitted under Section 6.01 that is secured, on an equal and ratable basis with the
Term Loans, by a Lien on the Collateral permitted under Section 6.02, and such Indebtedness is required to be prepaid or redeemed
with the Net Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, then
by such lesser percentage of such Net Proceeds such that such Indebtedness receives no greater than a ratable percentage of such Net
Proceeds based upon the aggregate principal amount of the Term Loans and such Indebtedness then outstanding) (such Net Proceeds
amount, as reduced in accordance with the proviso to this paragraph (c), the “Net Proceeds Prepayment Amount”); provided
that, in the case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” and so
long as no Event of Default under Section 7.01(a), 7.01(b) or, solely with respect to the Borrower, Section 7.01(h) or 7.01(i) has
occurred and be continuing if the Borrower shall, on or prior to the date of the required prepayment, deliver to the Administrative
Agent a certificate of a Financial Officer to the effect that Holdings or the Borrower intend to cause the Net Proceeds from such
event (or a portion thereof specified in such certificate) to be applied within 365 days after receipt
of such Net Proceeds to be reinvested in the business of Holdings, the Borrower or its Restricted Subsidiaries, or to enter into an
acquisition permitted by this Agreement, then no prepayment shall be required pursuant to this paragraph in respect of the Net
Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the
extent of any such Net Proceeds that have not been so applied by the end of such 365-day period (or within a period of 180 days
thereafter if by the end of such initial 365-day period the Borrower or one or more Restricted Subsidiaries shall have committed to
invest such proceeds), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so
applied.
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(d) Following
the end of each fiscal year of Holdings, commencing with the fiscal year endingended
December 31, 2021, the Borrower shall prepay Term Borrowings in an aggregate amount equal to the Specified ECF Percentage of Excess Cash
Flow for such fiscal year (such amount, as reduced in accordance with the provisos to this paragraph (d), the “ECF Sweep Amount”);
provided that no such paymentonly
amounts in excess of $35,000,000 shall be required if such amount is equal to or less than $35,000,000to
be prepaid pursuant to this paragraph (d); provided further that such amount shall be reduced by the aggregate
amount of prepayments of Term Borrowings and Revolving Borrowings (but only to the extent accompanied by a permanent reduction of the
corresponding Commitment) made pursuant to paragraph (a) of this Section during such fiscal year (and, at the Borrower’s option
(and without deducting such amounts against the subsequent fiscal year’s prepayment computation pursuant to this paragraph (d)),
after the end of such fiscal year but prior to the date on which the prepayment pursuant to this Section 2.11(d) for such fiscal year
is required to have been made); provided further that, in the case of any Term Loan prepaid in connection with the
purchase thereof by a Purchasing Borrower Party pursuant to Section 9.04(e) at a discount to par, the prepayment required pursuant to
this Section 2.11(d) shall be reduced, with respect to the prepayment of such Term Loan, only by the actual amount of cash paid to the
applicable Lender or Lenders in connection with such purchase; provided, further, that such amount shall be reduced by
the aggregate amount of Capital Expenditures and Investments, in each case, permitted under this Agreement, made in cash during such
fiscal year (and, at the Borrower’s option (and without deducting such amounts against the subsequent fiscal year’s prepayment
computation pursuant to this paragraph (d)), after the end of such fiscal year but prior to the date on which the prepayment pursuant
to this Section 2.11(d) for such fiscal year is required to have been made) to the extent not financed with the proceeds of Long-Term
Indebtedness. Each prepayment pursuant to this paragraph shall be made on or before the date that
is five (5) Business Days after the date on which financial statements are delivered pursuant to Section 5.01(a) with respect
to the fiscal year for which Excess Cash Flow is being calculated (and in any event not later than the last day on which such financial
statements may be delivered in compliance with such Section).
(e) Notwithstanding
any other provisions of Section 2.11(c) or (d), (A) to the extent that any of or all the Net Proceeds of any Prepayment Event by or Excess
Cash Flow of a Foreign Subsidiary of Holdings giving rise to a prepayment pursuant to Section 2.11(c) or (d) (a “Foreign Prepayment
Event”) are prohibited or delayed by applicable local law from being repatriated to the Borrower, the portion of such Net Proceeds
or Excess Cash Flow so affected will not be required to be taken into account in determining the amount to be applied to repay Term Loans
at the times provided in Section 2.11(c) or (d), as the case may be, and such amounts may be retained by such Subsidiary, and once the
Borrower has determined in good faith that such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under
the applicable local law, then the amount of such Net Proceeds or Excess Cash Flow will be taken into account as soon as practicable
in determining the amount to be applied (net of additional taxes payable or reserved if such amounts were repatriated) to the repayment
of the Term Loans pursuant to Section 2.11(c) or (d), as applicable, (B) to the extent that and for so long as the Borrower has determined
in good faith that repatriation of any of or all the Net Proceeds of any Foreign Prepayment Event or Excess Cash Flow would have a material
adverse tax or cost consequence with respect to such Net Proceeds or Excess Cash Flow, the amount of Net Proceeds or Excess Cash Flow
so affected will not be required to be taken into account in determining the amount to be applied to repay Term Loans at the times provided
in Section 2.11(c) or Section 2.11(d), as the case may be, and such amounts may be retained by such Subsidiary; provided that
when the Borrower determines in good faith that repatriation of any of or all the Net Proceeds of any Foreign Prepayment Event or Excess
Cash Flow would no longer have a material adverse tax consequence with respect to such Net Proceeds or Excess Cash Flow, such Net Proceeds
or Excess Cash Flow shall be taken into account as soon as practicable in determining the amount to be applied (net of additional taxes
payable or reserved against if such amounts were repatriated) to the repayment of the Term Loans pursuant to Section 2.11(c) or Section
2.11(d), as applicable, and (C) to the extent that and for so long as the Borrower has determined in good faith that repatriation of
any of or all the Net Proceeds of any Foreign Prepayment Event or Excess Cash Flow would give rise to a risk of liability for the directors
of such Subsidiary, the Net Proceeds or Excess Cash Flow so affected will not be required to be taken into account in determining the
amount to be applied to repay Term Loans at the times provided in Section 2.11(c) or Section 2.11(d), as the case may be, and such amounts
may be retained by such Subsidiary.
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(f) Prior to any optional prepayment of Borrowings under this Section, the Borrower shall select the Borrowing or Borrowings to be
prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to paragraph (g) of this Section. In the
event of any mandatory prepayment of Term Borrowings made at a time when Term Borrowings of more than one Class remain outstanding, the
aggregate amount of such prepayment shall be allocated among the Term Borrowings (and, to the extent provided in the Incremental Facility
Amendment for any Class of Incremental Term Loans, the Borrowings of such Class) pro rata based on the aggregate principal amount of outstanding
Borrowings of each such Class; provided that any Term Lender (and, to the extent provided in the Incremental Facility Amendment
for any Class of Incremental Term Loans, any Lender that holds Incremental Term Loans of such Class) may elect, by notice to the Administrative
Agent in writing (via hand delivery, facsimile or other electronic imaging) at least one Business Day prior to the required prepayment
date, to decline all or any portion of any prepayment of its Loans pursuant to this Section (other than (x) an optional prepayment pursuant
to paragraph (a) of this Section or (y) a mandatory prepayment triggered by an event described in clause (c) of the definition of the
term “Prepayment Event”, neither of which may be declined), in which case the aggregate amount of the prepayment that would
have been applied to prepay such Loans may be retained by the Borrower.
(g) The
Borrower shall notify the Administrative Agent in writing (via hand delivery, facsimile or other electronic imaging) of any optional
prepayment and, to the extent practicable, any mandatory prepayment hereunder (i) in the case of a prepayment of a Term Benchmark Borrowing,
not later than 11:00 a.m., Local Time, three Business Days before the date of prepayment or (ii) in the case of a prepayment of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment. Each such notice shall be irrevocable
and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of optional
prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.08 and (B) a notice
of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence
of one or more events specified therein, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent
on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice, the
Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing
shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02,
except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably
to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section
2.13.
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(h) (I) All (i) prepayments of Initial Term Loans effected on or prior to the six-month anniversary of the Fifth Amendment Effective
Date with the proceeds of a Repricing Transaction, and (ii) amendments, amendments and restatements or other modifications of this Agreement
on or prior to the six-month anniversary of the Fifth Amendment Effective Date, the effect of which is a Repricing Transaction, shall
be accompanied by a fee payable for the ratable account of each of the applicable Initial Term Lenders in an amount equal to 1.00% of
the aggregate principal amount of the Initial Term Borrowings so prepaid in the case of a transaction described in clause (i) of this
paragraph, or 1.00% of the aggregate principal amount of the Initial Term Borrowings affected by such amendment, amendment and restatement
or other modification in the case of a transaction described in clause (ii) of this paragraph. Such fee shall be paid by the Borrower
to the Administrative Agent, for the account of the Initial Term Lenders of the applicable Class, on the date of such prepayment.
(II) All (i)
prepayments of Fourth Amendment Term Loans effected on or prior to the six-month anniversary of the Fifth Amendment Effective Date with
the proceeds of a Repricing Transaction, and (ii) amendments, amendments and restatements or other modifications of this Agreement on
or prior to the six-month anniversary of the Fifth Amendment Effective Date, the effect of which is a Repricing Transaction, shall be
accompanied by a fee payable for the ratable account of each of the applicable Fourth Amendment Term Lenders in an amount equal to 1.00%
of the aggregate principal amount of the Fourth Amendment Term Borrowings so prepaid in the case of a transaction described in clause
(i) of this paragraph, or 1.00% of the aggregate principal amount of the Fourth Amendment Term Borrowings affected by such amendment,
amendment and restatement or other modification in the case of a transaction described in clause (ii) of this paragraph. Such fee shall
be paid by the Borrower to the Administrative Agent, for the account of the Fourth Amendment Term Lenders of the applicable Class, on
the date of such prepayment.
(III)
All (i) prepayments of Sixth Amendment Term Loans effected on or prior to the six-month anniversary of the Sixth Amendment Effective
Date with the proceeds of a Repricing Transaction, and (ii) amendments, amendments and restatements or other modifications of this
Agreement on or prior to the six-month anniversary of the Sixth Amendment Effective Date, the effect of which is a Repricing
Transaction, shall be accompanied by a fee payable for the ratable account of each of the applicable Sixth Amendment Term Lenders in
an amount equal to 1.00% of the aggregate principal amount of the Sixth Amendment Term Borrowings so prepaid in the case of a
transaction described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of the Sixth Amendment Term
Borrowings affected by such amendment, amendment and restatement or other modification in the case of a transaction described in
clause (ii) of this paragraph. Such fee shall be paid by the Borrower to the Administrative Agent, for the account of the Sixth
Amendment Term Lenders of the applicable Class, on the date of such prepayment.
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SECTION
2.12. Fees. (a) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender (other than a
Defaulting Lender) in accordance with its Pro Rata Share of the Aggregate Revolving Commitments for the period from and including the
Amendment and Restatement Effective Date to but excluding the date on which the
Revolving Commitments terminate (or are otherwise reduced to zero), a commitment fee which shall accrue at the Applicable Rate on the
average daily unused amount of the aggregate Revolving Commitment of such Revolving Lender. Such accrued commitment fees accrued through
and including the last day of March, June, September and December of each year shall be payable in arrears on the fifteenth day following
such last day and on the date on which all the Revolving Commitments terminate, commencing on the first such date to occur after the
Amendment and Restatement Effective Date. For purposes of computing commitment fees,
a Revolving Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure of such
Lender.
(b) The
Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable Rate then used to determine the interest rate applicable
to Term Benchmark Revolving Loans on the average daily amount of such Lender’s aggregate LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Amendment and
Restatement Effective Date to but excluding the later of the date on which all of such Lender’s Revolving
Commitments terminate and the date on which such Lender ceases to have any LC Exposure and (ii) to each Issuing Bank a fronting fee,
which shall accrue at a rate per annum equal to 0.125% on the average daily amount of the LC Exposure attributable to Letters of Credit
issued by such Issuing Bank (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and
including the Amendment and Restatement Effective Date to but excluding the later of
the date of termination of all the Revolving Commitments and the date on which there ceases to be any such LC Exposure, as well as such
Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Participation fees and fronting fees accrued through and including the last day of March, June, September and
December of each year shall be payable on the fifteenth day following such last day, commencing on the first such date to occur after
the Amendment and Restatement Effective Date; provided that all such fees
shall be payable on the date on which all the Revolving Commitments terminate and any such fees accruing after the date on which all
the Revolving Commitments terminate shall be payable on demand. Any other fees payable to an Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand.
(c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(d) The
Borrower agrees to pay to the Arrangers and the Administrative Agent, for the account of each applicable Arranger and Lender, such
other fees as shall have been separately agreed upon in writing (including pursuant to the Fee Letters and including upfront fees,
which may be in the form of original issues discounts to the Loans) in the amounts and at the times so specified.
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(e) All
fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to the applicable
Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Revolving
Lenders entitled thereto. Fees paid hereunder shall not be refundable under any circumstances.
(f) All
commitment fees, participation fees, fronting fees and other fees payable pursuant to this Section 2.12 and all interest shall be computed
on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate
Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and shall be
payable for the actual number of days elapsed (including the first day but excluding the last day).
SECTION 2.13.
Interest. (a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The
Loans comprising each Term Benchmark Borrowing shall bear interest at the Adjusted Term
SOFR Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder
is not paid when due, whether at stated maturity, upon acceleration or otherwise, and an Event of Default under Section 7.01(a), (b),
(h) or (i) shall have occurred and be continuing, such overdue amount shall bear interest, on and from such date, at a rate per annum
equal to (i) in the case of overdue principal of any Loan, 2.00% per annum plus the rate otherwise applicable to such Loan as provided
in the preceding paragraphs of this Section or (ii) in the case of any other overdue amount, 2.00% per annum plus the rate applicable
to ABR Revolving Loans as provided in paragraph (a) of this Section. Payment or acceptance of the increased rates of interest provided
for in this paragraph (c) is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or
otherwise prejudice or limit any rights or remedies of the Administrative Agent, any Issuing Bank or any Lender.
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and, in the case of a Revolving
Loan of any Class, upon termination of the Revolving Commitments of such Class; provided that (i) interest accrued pursuant to
paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment
of an ABR Revolving Loan prior to the end of the Revolving Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of a Term Benchmark Loan prior to
the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
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SECTION 2.14. Alternate Rate of Interest.
(a) Subject
to clauses (b), (d), (e), (f) and (g) of this Section 2.14, if prior to the commencement of any Interest Period for a Term Benchmark
Borrowing of any Class:
(i) the
Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted Term SOFR Rate or
the Term SOFR Rate, as applicable, for the applicable Agreed Currency and such Interest Period, provided that
no Benchmark Transition Event with respect to such Benchmark shall have occurred at such time; or
(ii) the
Administrative Agent is advised by the Required Lenders that the Adjusted Term
SOFR Rate or the Term SOFR Rate as applicable, for the applicable Agreed Currency and
such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in
such Borrowing for the applicable Agreed Currency and such Interest Period;
then the Administrative
Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (A) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving
Borrowing as, a Term Benchmark Borrowing shall be ineffective, (B) if any Borrowing Request requests a Term Benchmark Revolving Borrowing
in dollars, such Borrowing shall be made as an ABR Borrowing and (C) if any Borrowing Request requests a Term Benchmark Borrowing in a
Permitted Foreign Currency, then such request shall be ineffective; provided that if the circumstances giving rise to such notice affect
only one Type of Borrowing, then the other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan in any Agreed
Currency is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section
2.14(a) with respect to the Adjusted Term SOFR Rate or
the Term SOFR Rate (as applicable) for such Term Benchmark Loan then (i) if such Term Benchmark Loan is denominated in
dollars, then on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a
Business Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in dollars on
such day or (ii) if such Term Benchmark Loan is denominated in any Agreed Currency (other than dollars), then such Loan shall, on the
last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), at the
Borrower’s election prior to such day: (A) be prepaid by the Borrower on such day or (B) be converted by the Administrative Agent
to, and (subject to the remainder of this subclause (B)) shall constitute, an ABR Loan denominated in dollars (in an amount equal to the
Dollar Equivalent of such Agreed Currency) on such day (it being understood and agreed that if the Borrower does not so prepay such Loan
on such day by 12:00 noon, local time, the Administrative Agent is authorized to effect such conversion of such Term Benchmark Loan into
an ABR Loan denominated in dollars), and, in the case of such subclause (B), upon the Borrower’s receipt of notice from the Administrative
Agent that the circumstances giving rise to the aforementioned notice no longer exist, such ABR Loan denominated in dollars shall then
be converted by the Administrative Agent to, and shall constitute, a Term Benchmark Loan denominated in such original Agreed Currency
(in an amount equal to the Permitted Foreign Currency Equivalent of such Agreed Currency) on the day of such notice being given to the
Borrower by the Administrative Agent.
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(b) Notwithstanding
anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement
Date have occurred prior to the Reference Time in respect of any setting of the
then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark
Replacement"”
for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any
Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent
of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with
clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will
replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m.
(New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without
any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative
Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required
Lenders. If the Benchmark Replacement is based upon Daily Simple SOFR, all interest payments will be payable on a monthly basis.
(c) [Reserved]
(d) In
connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the
right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any
other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further
action or consent of any other party to this Agreement or any other Loan Document.
(e) The
Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark
Transition Event and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement,
and (iiiii)
the effectiveness of any Benchmark Replacement Conforming Changes, (iv) in
connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify
the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.14(f) and (vy)
the commencement or conclusion of any Benchmark Unavailability Period. Any determination,
decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this
Section 2.14, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event,
circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent
manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other
Loan Document, except, in each case, as expressly required pursuant to this Section 2.14.
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(f) Notwithstanding
anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark
Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR
Reference Rate) and either (A) any tenor for such Benchmark is not
displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent
in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement
or publication of information announcing that any tenor for such Benchmark is not or
will be no longernot be
representative, then the Administrative Agent may modify the definition of “Interest Period” (or
any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative
tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information
service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not
or will no longernot
be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest
Period” (or any similar or analogous definition) for
all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon
the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i)
the Borrower may revoke any pending request for a Term
Benchmark Borrowing of, conversion to or continuation of Term Benchmark Loans to be made, converted or continued
during any Benchmark Unavailability Period and, failing that, either (x) the Borrower
will be deemed to have converted any such request for
a Term Benchmark Borrowing denominated in dollars into a request for a Borrowing of or conversion to ABR Loans
orand (yii)
any outstanding affected Term Benchmark Borrowing
denominated in a Permitted Foreign Currency shall be ineffective. During any Loans
will be deemed to have been
converted to ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at any
time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark
or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore,
if any Term Benchmark Loan in any Agreed Currency is outstanding on the date of the Borrower’s receipt of notice of the commencement
of a Benchmark Unavailability Period with respect to the Term SOFR Rate applicable to such Term Benchmark Loan, then (i) if such Term
Benchmark Loan is denominated in dollars, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business
Day if such day is not a Business Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, an ABR Loan
denominated in dollars on such day or (ii) if such Term Benchmark Loan is denominated in any Agreed Currency (other than dollars), then
such Loan shall, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not
a Business Day), at the Borrower’s election prior to such day: (A) be prepaid by the Borrower on such day or (B) be converted by
the Administrative Agent to, and (subject to the remainder of this subclause (B)) shall constitute, an ABR Loan denominated in dollars
(in an amount equal to the Dollar Equivalent of such Agreed Currency) on such day (it being understood and agreed that if the Borrower
does not so prepay such Loan on such day by 12:00 noon, local time, the Administrative Agent is authorized to effect such conversion
of such Term Benchmark Loan into an ABR Loan denominated in dollars), and, in the case of such subclause (B), upon any subsequent implementation
of a Benchmark Replacement in respect of such Agreed Currency pursuant to this Section 2.14, such ABR Loan denominated in dollars shall
then be converted by the Administrative Agent to, and shall constitute, a Term Benchmark Loan denominated in such original Agreed Currency
(in an amount equal to the Permitted Foreign Currency Equivalent of such Agreed Currency) on the day of such implementation, giving effect
to such Benchmark Replacement in respect of such Agreed Currency.
SECTION
2.15. Increased CostsIncreased Costs..
(a) If any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits
with or for the account of, or credit extended or participated in by, any Lender or any Issuing Bank;
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(ii) impose on any Lender or any Issuing Bank any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans
made by such Lender or any Letter of Credit or participation therein; or
(iii) subject
any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) 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;
and the result of any of the foregoing
shall be to increase the cost to such Lender or such other Recipient 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, such Issuing Bank or such other Recipient
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, such Issuing Bank or such other Recipient hereunder
(whether of principal, interest or otherwise), then, from time to time upon request of such Lender, such Issuing Bank or such other Recipient,
the Borrower will pay to such Lender, such Issuing Bank or such other Recipient, as applicable, such additional amount or amounts as will
compensate such Lender, such Issuing Bank or such other Recipient, as applicable, for such additional costs or expenses incurred or reduction
suffered.
(b) If
any Lender or any Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has had or would have the
effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s
or such Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans
made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level
below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved
but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such
Lender’s or such Issuing Bank’s holding company with respect to capital adequacy), then, from time to time upon the request
of such Lender or such Issuing Bank, the Borrower will pay to such Lender or such Issuing Bank, as applicable, such additional amount
or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for
any such reduction suffered.
(c) A
certificate of a Lender or an Issuing Bank setting forth in reasonable detail the amount or amounts necessary to compensate such Lender
or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) of this Section and the calculation
thereof shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or such
Issuing Bank, as applicable, the amount shown as due on any such certificate within 30 days after receipt thereof.
(d) Failure
or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver
of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be
required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or expenses incurred or reductions
suffered more than 180 days prior to the date that such Lender or such Issuing Bank, as applicable, notifies the Borrower of the Change
in Law giving rise to such increased costs or expenses or reductions and of such Lender’s or such Issuing Bank’s intention
to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or
expenses or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive
effect thereof.
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(e) Notwithstanding
any other provision of this Section, no Lender or Issuing Bank shall demand compensation for any increased cost or reduction
pursuant to this Section 2.15 if (i) it shall not at the time be the general policy or practice of such Lender or Issuing Bank to
demand such compensation in similar circumstances under comparable provisions of other credit agreements and (ii) such increased
cost or reduction is due to market disruption, unless such circumstances generally affect the banking market and when the Required
Lenders have made such a request.
SECTION 2.16.
Break Funding Payments. In the event of (a) the payment of any principal of any Term Benchmark Loan other than on the last day
of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Term Benchmark Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Term
Benchmark Loan on the date specified in any notice delivered pursuant hereto (whether or not such notice may be revoked in accordance
with the terms hereof) or (d) the assignment of any Term Benchmark Loan other than on the last day of the Interest Period applicable thereto
as a result of a request by the Borrower pursuant to Section 2.19(b) or 9.02(c), then, in any such event, the Borrower shall compensate
each Lender for the loss, cost and expense attributable to such event (excluding loss of profit). In the case of a Term Benchmark Loan,
such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender. A certificate of any Lender setting
forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section and the reasons therefor,
and showing the calculation thereof, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall
pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof. Notwithstanding the foregoing, this
Section 2.16 will not apply to losses, costs or expenses resulting from Taxes.
SECTION 2.17.
Taxes. (a) Payment Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under this Agreement
or any other Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any
applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of
any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or
withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable
law and, if such Tax is an Indemnified Tax, then an additional amount shall be payable by the applicable Loan Party as necessary so that
after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under
this Section 2.17) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding
been made.
(b) Payment
of Other Taxes by the Loan Parties. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable
law, or at the option of the Administrative Agent reimburse it for the payment of, any Other Taxes.
(c) Evidence
of Payment. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this
Section 2.17, such Loan Party 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 the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
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(d) Indemnification
by the Loan Parties. The Loan Parties shall jointly and severally indemnify each Recipient, within 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 2.17) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any
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 Borrower
by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall
be conclusive absent manifest error.
(e) Indemnification
by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any
Indemnified Taxes attributable to such Lender (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 Parties to do so), (ii) any Taxes attributable to such
Lender’s failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant Register and (iii)
any Excluded Taxes attributable to such Lender, in each case that are payable or paid by the Administrative Agent in connection with
this Agreement or any other 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 hereby authorizes
the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other
Loan Document or otherwise payable by the Administrative Agent to such Lender from any other source against any amount due to the Administrative
Agent under this paragraph.
(f) Status
of Lenders. (i) Any Lender that is entitled to an exemption from, or reduction of, withholding Tax with respect to payments made
under this Agreement or any other Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably
requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the
Borrower 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 Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower 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 set forth in Section 2.17(f)(ii)(A), 2.17(f)(ii)(B) or 2.17(f)(ii)(D)) 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:
(A) any Lender that is a U.S. Person shall
deliver to the Borrower 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 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 Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in
such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of
the following is applicable:
(1) in
the case of a Foreign 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 this Agreement or any other Loan Document, executed originals of IRS Form W-8BEN or Form W-8BEN-E
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 this Agreement or any other Loan Document, IRS Form W-8BEN or
Form W-8BEN-E 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 originals of IRS Form W-8ECI;
(3) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c)(3)(B) of the Code, (x)
a certificate substantially in the form of Exhibit J-1 to the effect that such Foreign Lender is not a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(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 originals of IRS Form W-8BEN or Form W-8BEN-E; or
(4) to
the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form
W-8BEN or Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-2 or Exhibit J-3, IRS Form W-9 and/or
another certification document from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership
and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender
may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-4 on behalf of each such direct or indirect partner;
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(C) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed
originals 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
Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if
a payment made to a Lender under this Agreement or any other 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 Borrower and the Administrative Agent at the time or
times prescribed by law and at such time or times reasonably requested by the Borrower 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 Borrower or the Administrative Agent as may be necessary for the Borrower 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 Second Amendment and Restatement Effective
Date.
Each Lender agrees
that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such
form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g) Treatment
of Certain Refunds. If any party 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 pursuant to this Section 2.17 (including by the payment of additional amounts paid pursuant
to this Section 2.17), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments
made under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes)
of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such
refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over
pursuant to this paragraph (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event
that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary
in this paragraph, in no event will any indemnified party be required to pay any amount to any indemnifying party pursuant to this paragraph
the payment of which would place such indemnified party in a less favorable net after-Tax position than such indemnified party would
have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This paragraph shall
not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that
it deems confidential) to the indemnifying party or any other Person.
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(h) For purposes of this Section 2.17, the term “Lender” includes any Issuing Bank and the term “applicable law”
includes FATCA.
SECTION 2.18. Payments
Generally; Pro Rata Treatment; Sharing of Setoffs. (a) The Borrower shall make each payment required to be made by it hereunder
or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under
Section 2.15, 2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or under such other Loan Document for such payment
(or, if no such time is expressly required, prior to 1:00 p.m., New York City time), on the date when due, in immediately available funds,
without any defense, setoff, recoupment or counterclaim. Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.
All such payments shall be made to such account or accounts as may be specified by the Administrative Agent, except that payments required
to be made directly to any Issuing Bank shall be so made, payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly
to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative
Agent shall distribute any such payment received by it for the account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment under this Agreement or any other Loan Document shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder of principal or interest in respect of any Loan or LC Disbursement
shall, except as otherwise expressly provided herein, be made in the currency of such Loan or LC Disbursement; all other payments hereunder
and under each other Loan Document shall be made in dollars.
(b) If
at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then
due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) 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 its Revolving Loans, Term Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent
of such fact and shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in LC Disbursements
of other Lenders to the extent necessary so that the aggregate amount 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 Revolving Loans, Term Loans and participations
in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and
in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations in LC Disbursements to any Eligible Assignee, to the Borrower or any Subsidiary
or other Affiliate thereof in a transaction that complies with the terms of Section 9.04(e) or (f), as applicable. The Borrower 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 the Borrower rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
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(d) Unless
the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Banks hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption
and in its sole discretion, distribute to the Lenders or the Issuing Banks, as applicable, the amount due. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders or the Issuing Banks, as applicable, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater
of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e) If
any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(d) or (e), 2.06(a) or (b), 2.17(e), 2.18(d)
or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts
thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations in respect
of such payment until all such unsatisfied obligations have been discharged and/or (ii) hold any such amounts in a segregated account
as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each
of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
SECTION 2.19. Mitigation
Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.15, or if any Loan Party is required
to pay any Indemnified Taxes or additional amounts to any Lender or to any Governmental Authority for the account of any Lender pursuant
to Section 2.17, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or its participation in any Letter of Credit affected by such event, or to assign and delegate
its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation
or assignment and delegation (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as applicable, in the future
and (ii) would not subject such Lender to any unreimbursed cost or expense and would not be inconsistent with its internal policies or
otherwise be disadvantageous to such Lender in any material respect. The Borrower hereby agree to pay all reasonable and documented assignment
fees in connection with any such designation or assignment and delegation.
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(b)
If (i) any Lender has requested compensation under Section 2.15, (ii) the 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 2.17, (iii) any
Lender has become a Defaulting Lender, (iv) any Lender has become a Declining Lender under Section 2.22 or (v) any Lender is a
Disqualified Institution, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights (other than its existing rights to payments pursuant to Section 2.15 or 2.17) and
obligations under this Agreement and the other Loan Documents (or, in the case of any such assignment and delegation resulting from
a Lender having become a Declining Lender, all its interests, rights and obligations under this Agreement and the other Loan
Documents as a Lender of the applicable Class with respect to which such Lender is a Declining Lender) to an Eligible Assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment and delegation); provided
that (A) the Borrower shall have received the prior written consent of the Administrative Agent to the extent such consent would be
required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable (and, if a Revolving Commitment is being
assigned, each Issuing Bank), which consent shall not unreasonably be withheld or delayed, (B) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and unreimbursed participations in LC Disbursements, accrued
interest thereon, accrued but unpaid fees and all other amounts payable to it hereunder (including, if applicable, the prepayment
fee pursuant to Section 2.11(h) (with such assignment being deemed to be an optional prepayment for purposes of determining the
applicability of such Section)) (if applicable, in each case only to the extent such amounts relate to its interest as a Lender of a
particular Class) from the assignee (in the case of such principal and accrued interest and fees (other than any fee payable
pursuant to Section 2.11(h)) or the Borrower (in the case of all other amounts (including any fee payable pursuant to Section
2.11(h)), (C) the Borrower or such assignee shall have paid (unless waived) to the Administrative Agent the processing and
recordation fee specified in Section 9.04(b), (D) in the case of any such assignment and delegation resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a material
reduction in such compensation or payments and (E) such assignment and delegation does not
conflict with applicable law. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver or consent by such Lender or otherwise (including as a result of any action taken by such Lender under paragraph
(a) above), the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply. Each party
hereto agrees that an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption
executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment need not be
a party thereto.
SECTION 2.20.
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting
Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the
Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders
or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to
any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification
requiring the consent of all Lenders or all Lenders adversely affected thereby shall, except as otherwise provided in Section 9.02, require
the consent of such Defaulting Lender in accordance with the terms hereof;
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(c) if
any LC Exposure exists at the time a Revolving Lender becomes a Defaulting Lender, then:
(i) [reserved];
(ii) all
or any part of the LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such
Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall
be reallocated among the non-Defaulting Revolver Lenders in accordance with their respective Applicable Percentages but only to the extent
that (x) the sum of all non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s LC Exposure does
not exceed the sum of all non-Defaulting Revolving Lenders’ Revolving Commitments and (y) such
reallocation does not cause the aggregate Revolving Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s
Revolving Commitment; provided that, subject to Section 9.18, no reallocation under
this clause (ii) 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;
(iii) if
the reallocation described in clause (ii) above cannot, or can only partially, be effected, the Borrower shall within one Business Day
following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s
LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure
is outstanding;
(iv) if
any portion of such Defaulting Lender’s LC Exposure is cash collateralized pursuant to clause (iii) above, the Borrower shall not
be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting
Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(v) if
any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (ii) above, then the fees payable to the Lenders
pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation;
(vi) [reserved]; and
(vii) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to
clause (ii) or (iii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation
fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and
allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued
by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so
long as such Revolving Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend, renew or extend any Letter
of Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be
fully covered by the Revolving Commitments of the non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower
in accordance with Section 2.20(c), and participating interests in any such issued, amended, renewed or extended Letter of Credit
will be allocated among the non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(ii) (and such Defaulting
Lender shall not participate therein).
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In the
event that (i) a Bankruptcy Event with respect to a Revolving Lender Parent shall occur following the Second Amendment
and Restatement Effective Date and for so long as such Bankruptcy Event shall continue or (ii) any applicable Issuing Bank has a good
faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender
commits to extend credit, such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless such
Issuing Bank shall have entered into arrangements with Holdings and the Borrower or the applicable Revolving Lender, satisfactory to
such Issuing Bank to defease any risk to it in respect of such Lender hereunder.
In the
event that the Administrative Agent, Holdings, the Borrower and each applicable Issuing Bank each agrees that a Defaulting Lender has
adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the LC Exposure of the Revolving
Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving
Lender shall purchase at par such of the Revolving Loans of the applicable Class of the other Revolving Lenders of such Class as the
Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans of such Class in
accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued
or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further
that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a non-Defaulting
Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been
a Defaulting Lender.
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SECTION
2.21. Incremental Extensions of Credit. (a) At any time and from time to time, commencing on the Second
Amendment and Restatement Effective Date and ending on the latest Maturity Date, subject to the terms and conditions set forth herein,
the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of
the Lenders), request (i) to add one or more additional tranches of term loans denominated in dollars
(the “Incremental Term Loans”), (ii) one or more increases in the aggregate amount of
any Class of Term Loans (each such increase, a “Incremental Term Loan Increase”), (iii) to add one or more
additional tranches of revolving commitments (each, an “Incremental Revolving Commitment”, and the loans made pursuant
thereto, the “Incremental Revolving Loans”), (iv) solely during the Revolving Availability Period, one or more increases
in the aggregate amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase” and, together
with the Incremental Term Loans, any Incremental Term Loan Increase, any Alternative Incremental
Facility Debt and the Incremental Revolving Commitments, the “Incremental Extensions of Credit”, the Incremental Revolving
Commitments and the Incremental Revolving Loans, together with the Incremental Term Loans, any Revolving Commitment Increase and any
Incremental Term Loan Increase, the “Incremental Facilities”)) or (v) Alternative
Incremental Facility Debt, in an aggregate principal amount of up to (x) the greater of (A) $750,000,000 and (B) 100% of LTM Consolidated
EBITDA in the aggregate in respect of all Incremental Facilities and Alternative Incremental Facility Debt incurred after the Sixth Amendment
Effective Date (less the aggregate outstanding principal amount of Cash Management Financing Facilities (as determined at the time of
incurrence of such Incremental Facilities in accordance with Section 1.06)), plus (y) the amount of (I)
any voluntary prepayments of the Term Loans and,
any Alternative Incremental Facility Debt and any other Indebtedness secured by Liens on the Collateral on a pari passu basis with the
Obligations and (II) permanent reductions in the amount of the Revolving Commitments and
any other revolving Indebtedness secured by Liens on the Collateral on a pari passu basis with the Obligations, in each case,
to the extent not funded with long-term Indebtedness and excluding any ADI
Spin-Off Prepayments, plus (z) an additional amount if, after giving effect to the incurrence of such additional amount
and the application of the proceeds therefrom (assuming that the full amount of such Incremental Extensions of Credit being
established on such date has been funded on such date) (A) in the case of any such Incremental
Extensions of Credit that is secured by a Lien on the Collateral on a pari passu basis to
the Liens securing the Obligations, the Consolidated First Lien Leverage Ratio does not exceed (1) 1.375
to 1.00 or (2) if incurred in connection with a Permitted Acquisition, the greater of (I) 1.375 to
1.00 and (II) the Consolidated First Lien Leverage Ratio immediately prior to such incurrence, (B)
in the case of any such Incremental Extensions of Credit secured by a Lien on the Collateral on
a junior basis to the Liens securing the Obligations, the Consolidated Secured Leverage Ratio does not exceed
(1) 1.875 to 1.00 or (2) if incurred in connection with a Permitted Acquisition, the greater of (I) 1.875
to 1.00 and (II) the Consolidated Secured Leverage Ratio immediately prior to such incurrence and
(C) in the case of any such Incremental Extensions of Credit that is unsecured, the Consolidated
Total Leverage Ratio does not exceed (1) 2.975 to 1.00 or (2) if incurred in connection with a Permitted Acquisition, the greater
of (I) 2.975 to 1.00 and (II) the Consolidated Total Leverage Ratio immediately prior to such incurrence
(in each case, assuming any such Incremental Revolving Commitments being established on such date are fully drawn and excluding any amounts
incurred concurrently in reliance on clause (x) or (y) above) (it being understood that if the proceeds of the relevant Incremental Extensions
of Credit will be applied to finance a Limited Condition Transaction and the Borrower has made an LCT Election, compliance with the Consolidated
First Lien Leverage Ratio, the Consolidated Secured Leverage Ratio or Consolidated Total Leverage Ratio tests prescribed above may be
determined as of the LCT Test Date in respect of such Limited Condition Transaction on a Pro Forma Basis); provided, (A) unless
the Borrower elects otherwise, each Incremental Extensions of Credit shall be deemed incurred first under clause (z) to the extent permitted
with any balance incurred under the clause (x) and/or clause (y), (B) if the Borrower incurs any Incremental Extensions of Credit under
clause (x) and/or clause (y) on the same date that it incurs such Incremental Extensions of Credit under clause (z), then the Consolidated
First Lien Leverage Ratio, Consolidated Secured Leverage Ratio or Consolidated Total Leverage Ratio will be calculated with respect to
such incurrence under clause (z) without regard to such incurrence under clause (x) and/or clause (y) and (C) notwithstanding anything
herein or in any other Loan Document to the contrary, as of the Sixth Amendment Effective Date (I) all Incremental Facilities incurred
under clause (x) above of this Section 2.21(a) outstanding immediately prior to the Sixth Amendment Effective Date (including without
limitation the Fourth Amendment Term Loans then outstanding) and (II) the Sixth Amendment Term Commitments (and upon the funding thereof
on the Sixth Amendment Effective Date, the Sixth Amendment Term Loans), in each case, shall be automatically deemed incurred under the
foregoing clause (z) of this Section 2.21(a) (without regard to whether or not the requirements under such clause (z) have been satisfied
for such incurrence as of such date); provided further that, at the time of each such request and upon the effectiveness of each
Incremental Facility Amendment, (A) no Event of Default has occurred and is continuing or shall result therefrom (or, in the event the
proceeds of any Incremental Extension of Credit are used to finance any Limited Condition Transaction permitted hereunder for which the
Borrower has made an LCT Election, no Event of Default shall exist and be continuing as of the LCT Test Date for such Limited Condition
Transaction), (B) the representations and warranties of Holdings, the Borrower and each other Loan Party, as applicable, set forth in
the Loan Documents would be true and correct in all material respects (or, in the case of representations and warranties qualified as
to materiality or Material Adverse Effect, in all respects) on and as of the date of, and immediately after giving effect to, the incurrence
of such Incremental Extension of Credit (or, if incurred in connection with a Limited Condition Transaction, on the LCT Test Date) (provided
that in the event the proceeds of any Incremental Extension of Credit are used to finance any Investment permitted hereunder, such condition
precedent related to the making and accuracy of such representations and warranties may be waived or limited as agreed between the Borrower
and the Lenders providing such Incremental Extension of Credit, without the consent of any other Lenders) and (C) the Borrower shall
have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above;
provided further that any Incremental Extensions of Credit incurred under clause (x) and/or clause (y) shall automatically be
reclassified as being incurred under clause (z) at any later time that such Incremental Extensions of Credit would have been permitted
to be incurred under clause (z). Each Class of Incremental Term Loans and Incremental Revolving Commitments, and each Revolving
Commitment Increase, shall be in an integral multiple of the $5,000,000 and be in an aggregate principal amount that is not less than
$25,000,000; provided that such amount may be less than $25,000,000 if such amount represents all the remaining availability under
the aggregate principal amount of Incremental Extensions of Credit set forth above.
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(b) The
Incremental Facilities (i) shall be documented pursuant to an Incremental Facility Amendment and
rank pari passu in right of payment in respect of the Collateral and with the Obligations
in respect of the Revolving Commitments, the Initial Term Loans, the Fourth Amendment Term Loans and
the Sixth Amendment Term Loans,,
(ii) shall not have a borrower other than the Borrower, (iii) shall not be secured by any property or assets of Holdings, the
Borrower or any Restricted Subsidiary other than the Collateral or guaranteed by any Subsidiaries other than the Loan Parties, and
(iv) shall, except as otherwise set forth herein, be on terms and subject to conditions as agreed between the Borrower and the
Lenders providing the applicable Incremental Extension of Credit and to the extent such terms (other than with respect to maturity,
amortization and pricing) are inconsistent with those governing the other Loans hereunder, the covenants and events of default of
any Incremental Facility shall be, when taken as a whole, no more favorable to the Lenders providing the applicable Incremental
Facility than the terms governing the Loans hereunder, unless (1) the Lenders receive the benefit of such more restrictive terms (it
being understood to the extent that any covenant is added for the benefit of any Incremental Facility, no consent shall be required
from the Administrative Agent or any Lender to the extent that such covenant is also added for the benefit of the Lenders), (2) such
more restrictive terms only apply after the Latest Maturity Date or (3) such terms shall be reasonably satisfactory to the
Administrative Agent and the Borrower; provided, further, that (A) for any Incremental Term Loans (including in the
form of any Incremental Term Loan Increase) incurred prior to the date that is six (6) months after the Sixth Amendment Effective
Date, if the Weighted Average Yield relating to such Incremental Term Loans that (x) rank pari passu to the Sixth Amendment
Term Loans with respect to security, (y) are broadly syndicated to banks and other financial institutions and (z) have a maturity
date that is less than one year after the Sixth Amendment Term Maturity Date, exceeds the Weighted Average Yield relating to the
Sixth Amendment Term Loans (after giving effect to any amendments to the applicable margin on such Class of existing Sixth Amendment
Term Loans prior to the time that such Incremental Term Loans are made) immediately prior to the effectiveness of the applicable
Incremental Facility Amendment by more than 0.50%, then the Applicable Rate relating to such Class of existing Sixth Amendment Term
Loans shall be adjusted so that the Weighted Average Yield relating to such Incremental Term Loans shall not exceed the Weighted
Average Yield relating to such Class of existing Sixth Amendment Term Loans by more than 0.50%, (C) any Incremental Term Loan shall
not have (1) a final maturity date earlier than the Initial Term Maturity Date, the Fourth Amendment Term Maturity Date or the Sixth
Amendment Term Maturity Date or (2) a weighted average life to maturity that is shorter than the remaining weighted average life to
maturity of the then-remaining Initial Term Loans ,the then-remaining Fourth Amendment Term Loans or the then-remaining Sixth
Amendment Term Loans; provided that the requirements set forth in the foregoing clause (C) shall not apply to any
Indebtedness (x) consisting of a customary bridge facility so long as such bridge facility converts into long-term Indebtedness that
satisfies this clause (C) or (y) incurred in reliance on the Inside Maturity Exception; (D) any Incremental Revolving Commitment or
any Revolving Commitment Increase shall not have a maturity date that is earlier than the Revolving Maturity Date and shall not
require any scheduled amortization or mandatory commitment reductions prior to the Revolving Maturity Date and (E)
any Incremental Term Loan Increase shall be treated the same as the Class of Term Loans being increased (including with respect to
maturity date thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms
applicable to such Term Loans.
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(c) Any
additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Extensions of Credit (i)
shall, to the extent a consent would be required under Section 9.04 if such additional bank, financial institution, existing Lender
or other Person were taking an assignment of Loans or Commitments, be approved by the Borrower and the Administrative Agent (and, in
the case of any Incremental Revolving Commitment or Revolving Commitment Increase, each applicable Issuing Bank) (such approval not
be unreasonably withheld) (any such bank, financial institution, existing Lender or other Person being called an
“Additional Lender”) and (ii) if not already a Lender, shall become a Lender under this Agreement pursuant to an
amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents,
executed by Holdings, the Borrower, each such Additional Lender and the Administrative Agent. No Lender shall be obligated to
provide any Incremental Extension of Credit unless it so agrees. Commitments in respect of any Incremental Extension of Credit shall
become Commitments (or in the case of any Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase
in such Lender’s Revolving Commitment) under this Agreement upon the effectiveness of the applicable Incremental Facility
Amendment. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement
or to any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the
provisions of this Section (including to provide for voting provisions applicable to the Additional Lenders comparable to the
provisions of clause (B) of the second proviso of Section 9.02(b)). The effectiveness of any Incremental Facility Amendment shall,
unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the effective
date thereof of each of the conditions set forth in clauses (a) and (b) of Section 4.02 (it being understood and agreed that all
references to a Borrowing in clauses (a) and (b) of Section 4.02 shall be deemed to refer to the applicable Incremental Facility
Amendment).
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(d) On
the date of effectiveness of any Revolving Commitment Increase, (i) the aggregate principal amount of the Revolving Loans outstanding
(the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Revolving Commitment Increase
shall be deemed to be repaid, (ii) each Revolving Commitment Increase Lender that shall have had a Revolving Commitment prior to the
effectiveness of such Revolving Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the amount,
if any, by which (A) (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated after giving effect to the
effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Resulting Revolving Borrowings
(as hereinafter defined) exceeds (B) (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated without
giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Existing
Revolving Borrowings, (iii) each Revolving Commitment
Increase Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Revolving Commitment Increase shall
pay to the Administrative Agent in same day funds an amount equal to (1) such Revolving Commitment Increase Lender’s Applicable
Percentage (calculated after giving effect to the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate
principal amount of the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii)
and (iii) above, the Administrative Agent shall pay to each Revolving Lender of the Applicable Class the portion of such funds that is
equal to the amount, if any, by which (A) (1) such Revolving Lender’s Applicable Percentage (calculated without giving effect to
the effectiveness of such Revolving Commitment Increase) multiplied by (2) the aggregate principal amount of the Existing Revolving Borrowings,
exceeds (B) (1) such Revolving Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Revolving
Commitment Increase) multiplied by (2) the aggregate principal amount of the Resulting Revolving Borrowings, (v) after the effectiveness
of such Revolving Commitment Increase, the Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving
Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Existing Revolving Borrowings
and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with
Section 2.03 (and the Borrower shall deliver such Borrowing Request), (vi) each Revolving Lender of the Applicable Class shall be deemed
to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such
Revolving Commitment Increase) and (vii) the Borrower shall pay each Revolving Lender any and all accrued but unpaid interest on its
Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause
(i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.16 if the date of the effectiveness
of such Revolving Commitment Increase occurs other than on the last day of the Interest Period relating thereto. Upon each Revolving
Commitment Increase pursuant to this Section, each Revolving Lender immediately prior to such increase will automatically and without
further act be deemed to have assigned to each Revolving Commitment Increase Lender, and each such Revolving Commitment Increase Lender
will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder
in outstanding Letters of Credit such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment
and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each
Revolving Lender (including each such Revolving Commitment Increase Lender) will equal such Revolving Lender’s Applicable Percentage.
(e) Notwithstanding
anything to the contrary contained in this Section 2.21, unless the Administrative Agent shall agree otherwise, after giving effect to
any transaction contemplated in this Section 2.21, there shall not be more than six Classes of Loans or Commitments (including any revolving
and term loan facilities) hereunder at any one time outstanding.
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SECTION
2.22. Extension of Maturity Date (a) The Borrower may, by delivery of a Maturity Date Extension Request to the Administrative
Agent (which shall promptly deliver a copy thereof to each of the Lenders) not less than 30 days prior to the then-existing Maturity
Date for the applicable Class of Commitments and/or Loans hereunder to be extended (the “Existing Maturity
Date”), request that the Lenders extend the Existing Maturity Date in accordance with this Section; provided that,
for the avoidance of doubt, each Lender may elect to agree or not agree, in its sole discretion, to an extension of a Maturity Date.
Each Maturity Date Extension Request shall (i) specify the applicable Class of Commitments and/or Loans hereunder to be extended,
(ii) specify the date to which the applicable Maturity Date is sought to be extended, (iii) specify the changes, if any, to the
Applicable Rate to be applied in determining the interest payable on the Loans of, and fees payable hereunder to, Consenting Lenders
(as defined below) in respect of that portion of their Commitments and/or Loans extended to such new Maturity Date and the time as
of which such changes will become effective (which may be prior to the Existing Maturity Date) and (iv) specify any other amendments
or modifications to this Agreement to be effected in connection with such Maturity Date Extension Request; provided that no
such changes or modifications requiring approvals pursuant to the provisos to Section 9.02(b) shall become effective prior to the
Existing Maturity Date unless such other approvals have been obtained. In the event a Maturity Date Extension Request shall have
been delivered by the Borrower, each Lender shall have the right to agree to the extension of the Existing Maturity Date and other
matters contemplated thereby on the terms and subject to the conditions set forth therein (each Lender agreeing to the Maturity Date
Extension Request being referred to herein as a “Consenting Lender” and each Lender not agreeing thereto being
referred to herein as a “Declining Lender”), which right may be exercised by written notice thereof, specifying
the maximum amount of the Commitment and/or Loans of such Lender with respect to which such Lender agrees to the extension of the
Maturity Date, delivered to the Borrower (with a copy to the Administrative Agent) not later than a day to be agreed upon by the
Borrower and the Administrative Agent following the date on which the Maturity Date Extension Request shall have been delivered by
the Borrower (it being understood and agreed that any Lender that shall have failed to exercise such right as set forth above shall
be deemed to be a Declining Lender). If a Lender elects to extend only a portion of its then existing Commitment and/or Loans, it
will be deemed for purposes hereof to be a Consenting Lender in respect of such extended portion and a Declining Lender in respect
of the remaining portion of its Commitment and/or Loans, and the aggregate principal amount of each Type and currency of Loans of
the applicable Class of such Lender shall be allocated ratably among the extended and non-extended portions of the Loans of such
Lender based on the aggregate principal amount of such Loans so extended and not extended. If Consenting Lenders shall have agreed
to such Maturity Date Extension Request in respect of Commitments and/or Loans held by them, then, subject to paragraph (d) of this
Section, on the date specified in the Maturity Date Extension Request as the effective date thereof (the “Extension
Effective Date”), (i) the Existing Maturity Date of the applicable Commitments and/or Loans shall, as to the Consenting
Lenders, be extended to such date as shall be specified therein, (ii) the terms and conditions of the applicable Commitments and/or
Loans of the Consenting Lenders (including interest and fees (including Letter of Credit fees) payable in respect thereof) shall be
modified as set forth in the Maturity Date Extension Request and (iii) such other modifications and amendments hereto specified in
the Maturity Date Extension Request shall (subject to any required approvals (including those of the Required Lenders) having been
obtained) become effective.
(b) Notwithstanding
the foregoing, the Borrower shall have the right, in accordance with the provisions of Sections 2.19(b) and 9.04, at any time prior to
the Existing Maturity Date, to replace a Declining Lender (for the avoidance of doubt, only in respect of that portion of such Lender’s
Commitment and/or Loans subject to a Maturity Date Extension Request that it has not agreed to extend) with a Lender or other financial
institution that will agree to such Maturity Date Extension Request, and any such replacement Lender shall for all purposes constitute
a Consenting Lender in respect of the Commitment and/or Loans assigned to and assumed by it on and after the effective time of such replacement.
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(c) If a Maturity Date Extension Request has become effective hereunder:
(i) solely in respect
of a Maturity Date Extension Request that has become effective in respect of the Revolving Commitments, not later than the fifth
Business Day prior to the Existing Maturity Date, the Borrower shall make prepayments of Revolving Loans and shall provide cash
collateral in respect of Letters of Credit, in each case, in the manner set forth in Section 2.05(i), such that, after giving effect
to such prepayments and such provision of cash collateral, the Aggregate Revolving Exposure as of such date will not exceed the
aggregate Revolving Commitments of the Consenting Lenders extended pursuant to this Section (and the Borrower shall not be permitted
thereafter to request any Revolving Loan or any issuance, amendment, renewal or extension of a Letter of Credit if, after giving
effect thereto, the Aggregate Revolving Exposure would exceed the aggregate amount of the Revolving Commitments so extended);
(ii) solely
in respect of a Maturity Date Extension Request that has become effective in respect of the Revolving Commitments, on the Existing Maturity
Date, the Revolving Commitment of each Declining Lender shall, to the extent not assumed, assigned or transferred as provided in paragraph
(b) of this Section, terminate, and the Borrower shall repay all the Revolving Loans made by each Declining Lender to the Borrower to
the extent such Loans shall not have been so purchased, assigned and transferred, in each case together with accrued and unpaid interest
and all fees and other amounts owing to such Declining Lender hereunder, it being understood and agreed that, subject to satisfaction
of the conditions set forth in Section 4.02, such repayments may be funded with the proceeds of new Revolving Borrowings made simultaneously
with such repayments by the Consenting Lenders, which such Revolving Borrowings shall be made ratably by the Consenting Lenders in accordance
with their extended Revolving Commitments; and
(iii)
solely in respect of a Maturity Date Extension Request that has become effective in respect of a Class of Term Loans, on the Existing
Maturity Date, the Borrower shall repay all the Loans of such Class made by each Declining Lender to the Borrower, to the extent such
Loans shall not have been so purchased, assigned and transferred, in each case together with accrued and unpaid interest and all fees
and other amounts owing to such Declining Lender hereunder, it being understood and agreed that, subject to satisfaction of the conditions
set forth in Section 4.02, such repayments may be funded with the proceeds of new Revolving Borrowings made simultaneously with such repayments
by the Revolving Lenders.
(d) Notwithstanding
the foregoing, no Maturity Date Extension Request shall become effective hereunder unless, on the Extension Effective Date, the conditions
set forth in clauses (a) and (b) of Section 4.02 shall be satisfied (with all references in such Section to a Borrowing being deemed
to be references to such Maturity Date Extension Request) and the Administrative Agent shall have received a certificate to that effect
dated such date and executed by a Financial Officer of the Borrower.
(e) Notwithstanding
any provision of this Agreement to the contrary, it is hereby agreed that no extension of an Existing Maturity Date in accordance with
the express terms of this Section, or any amendment or modification of the terms and conditions of the Commitments and the Loans of the
Consenting Lenders effected pursuant thereto, shall be deemed to (i) violate the last sentence of Section 2.08(c) or Section 2.18(b)
or 2.18(c) or any other provision of this Agreement requiring the ratable reduction of Commitments or the ratable sharing of payments
or (ii) require the consent of all Lenders or all affected Lenders under Section 9.02(b).
(f) The
Borrower, the Administrative Agent and the Consenting Lenders may enter into an amendment to this Agreement to effect such modifications
as may be necessary to reflect the terms of any Maturity Date Extension Request that has become effective in accordance with the provisions
of this Section.
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(g) Notwithstanding
anything to the contrary contained in this Section 2.22, unless the Administrative Agent shall agree otherwise, after giving effect to
any transaction contemplated in this Section 2.22, there shall not be more than six Classes of Loans or Commitments (including any revolving
and term loan facilities) hereunder at any one time outstanding.
SECTION 2.23.
Refinancing Facilities. (a) The Borrower may, on one or more occasions, by written notice to the Administrative Agent, obtain Refinancing
Term Loan Indebtedness. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the
Borrower proposes that such Refinancing Term Loan Indebtedness shall be made, which shall be a date not less than five Business Days after
the date on which such notice is delivered to the Administrative Agent; provided that:
(i)
no Event of Default of the type set forth in Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing;
(ii)
substantially concurrently with the incurrence of such Refinancing Term Loan Indebtedness, the Borrower shall repay or prepay then
outstanding Term Borrowings of the applicable Class made to the Borrower (together with any accrued but unpaid interest thereon and any
prepayment premium with respect thereto) in an aggregate principal amount equal to the Net Proceeds of such Refinancing Term Loan Indebtedness,
and any such prepayment of Term Borrowings of such Class shall be applied to reduce the subsequent scheduled repayments of Term Borrowings
of such Class to be made pursuant to Section 2.09(a) ratably,
(iii)
such notice shall set forth, with respect to the Refinancing Term Loan Indebtedness established thereby in the form of Refinancing
Term Loans, to the extent applicable, the following terms thereof: (a) the designation of such Refinancing Term Loans as a new “Class”
for all purposes hereof, (b) the stated termination and maturity dates applicable to the Refinancing Term Loans of such Class, (c) amortization
applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (d) the interest rate or rates applicable
to the Refinancing Term Loans of such Class, (e) the fees applicable to the Refinancing Term Loans of such Class, (f) any original issue
discount applicable thereto, (g) the initial Interest Period or Interest Periods applicable to Refinancing Term Loans of such Class and
(h) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans of such Class (which
prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with
any Class of existing Term Loans, but may not provide for prepayment requirements that are materially more favorable to the Lenders holding
such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions
or prepayments of Refinancing Term Loans of such Class, and
(iv)
such Refinancing Term Loan Indebtedness will, to the extent secured, rank pari passu or junior in right of payment and of
security with the other Loans and Commitments hereunder on the terms set out in an Acceptable Intercreditor Agreement.
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(b) Notwithstanding
anything to the contrary in this Agreement, the Borrower may, on one or more occasions, by written notice to the Administrative
Agent, establish revolving commitments (“Refinancing Revolving Commitments”), which replace in whole or in part any
Class or tranche of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, a “Refinancing
Revolving Commitments Effective Date”) on which the Borrower proposes that the Refinancing Revolving Commitments shall become
effective, which shall be a date not less than five Business Days after the date on which such notice is delivered to the
Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided
that:
(i)
after giving effect to the establishment of such Refinancing Revolving Commitments on the Refinancing Revolving Commitments Effective
Date, no Event of Default of the type set forth in Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing;
(ii)
after giving effect to the establishment of such Refinancing Revolving Commitments and the replacement in whole or in part any
Class or tranche of existing Revolving Commitments, the aggregate amount of Revolving Commitments shall not exceed the aggregate amount
of the Revolving Commitments outstanding immediately prior to the applicable Refinancing Revolving Commitments Effective Date plus amounts
used to pay fees, premiums, costs and expenses and accrued interest associated therewith and other fees, costs and expenses relating thereto;
(iii)
no Refinancing Revolving Commitments shall have a final maturity date (or require commitment reduction or amortization) prior to
the Latest Maturity Date for the Revolving Credit Commitments being replaced; and
(iv)
all other terms applicable to such Refinancing Revolving Commitments (other than provisions relating to (x) fees, interest rates
and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower
and the Lenders providing such Refinancing Revolving Commitments and (y) the amount of any letter of credit sublimit under such Refinancing
Revolving Commitments, which shall be as agreed between the Borrower, the Lenders providing such Refinancing Revolving Commitments, the
Administrative Agent and the replacement issuing bank, if any, under such Refinancing Revolving Credit Commitments), when taken as a whole,
shall be no more favorable to the Lenders providing such Refinancing Revolving Commitments (as reasonably determined by the Borrower)
than those, taken as a whole, applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other
terms apply solely to any period after the Latest Maturity Date for such Revolving Credit Commitments being replaced);
(c)
Any Lender or any other Eligible Assignee approached by the Borrower to provide all or a portion of the Refinancing Term Loan Indebtedness
and/or any Refinancing Revolving Commitments may elect or decline, in its sole discretion, to provide any Refinancing Term Loan Indebtedness
and/or any Refinancing Revolving Commitments.
(d) Any
Refinancing Term Loans or Refinancing Revolving Commitments shall be established pursuant to a Refinancing Facility Agreement
executed and delivered by Holdings, the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan (or in the case
of a Refinancing Facility Agreement to establish Refinancing Revolving Commitments, the Lenders providing such Refinancing Revolving
Commitments and the Administrative Agent, which shall be consistent with the provisions set forth in clause (a) or (b) above, as
applicable (but which shall not require the consent of any other Lender). Each Refinancing Facility Agreement shall be binding on
the Lenders, the Loan Parties and the other parties hereto and may effect amendments to the other Loan Documents as may be necessary
or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect provisions of this Section 2.23,
including any amendments necessary to treat any such Refinancing Term Loans as a new “Class” of Loans hereunder or any
amendments necessary to treat any such Refinancing Revolving Commitments as a new Class of Revolving Commitments (and the Loans in
respect thereof as a new Class of Loans hereunder). The Administrative Agent shall promptly notify each Lender as to the
effectiveness of each Refinancing Facility Agreement.
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(e)
Notwithstanding anything to the contrary contained in this Section 2.23, unless the Administrative Agent shall agree otherwise,
after giving effect to any transaction contemplated in this Section 2.23, there shall not be more than six Classes of Loans or Commitments
(including any revolving and term loan facilities) hereunder at any one time outstanding.
ARTICLE III
Representations and Warranties
Each of Holdings
(with respect to itself and, where applicable, the Restricted Subsidiaries) and the Borrower represents and warrants to the Administrative
Agent, each of the Issuing Banks and each of the Lenders that:
SECTION 3.01.
Organization; Powers. Each of Holdings, the Borrower and the Restricted Subsidiaries (a) is duly organized, validly existing and,
to the extent that such concept is applicable in the relevant jurisdiction, in good standing (to the extent such concept exists in the
relevant jurisdictions) under the laws of the jurisdiction of its organization, (b) has the corporate or other organizational power and
authority to carry on its business as now conducted, to execute, deliver and perform its obligations under this Agreement and each other
Loan Document and (c) except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result
in a Material Adverse Effect, is qualified to do business in, and, to the extent that such concept exists in the relevant jurisdiction,
is in good standing in, every jurisdiction where such qualification is required.
SECTION
3.02. Authorization; Due Execution and Delivery; Enforceability. This Agreement has been duly authorized, executed and delivered
by Holdings, U.S. HoldCo1HoldCo
1, U.S. HoldCo 2 and the Borrower and constitutes, and each other Loan Document to which any Loan Party is to be a party, when
executed and delivered by such Loan Party, will constitute, a legal, valid and binding obligation of Holdings, the Borrower, U.S. HoldCo1HoldCo
1, U.S. HoldCo 2 or such Loan Party, as applicable, enforceable against such Person in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws affecting creditors’ rights generally and
subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
SECTION
3.03. Governmental Approvals; No Conflicts. Except as set forth on Schedule 3.03, the execution, delivery and performance by each
Loan Party of each Loan Document to which it is a party (a),
as of the date such Loan Document is executed, (a) do not require
any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect and except (i) filings necessary to perfect Liens created under the Loan Documents
or (ii) where failure to obtain such consent or approval, or make such registration or filing, in the aggregate, would not reasonably
be expected to have a Material Adverse Effect, (b) will not violate any Requirement of Law applicable to Holdings, the Borrower or any
Restricted Subsidiary, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon Holdings,
the Borrower or any Restricted Subsidiary or their respective assets, or give rise to a right thereunder to require any payment, repurchase
or redemption to be made by Holdings, the Borrower or any Restricted Subsidiary or give rise to a right of, or result in, termination,
cancelation or acceleration of any obligation thereunder, except with respect to any violation, default, payment, repurchase, redemption,
termination, cancellation or acceleration under this clause (c) or clause (b) above that would not reasonably be expected to have a Material
Adverse Effect and (d) will not result in the creation or imposition of any Lien on any asset of Holdings, the Borrower or any Restricted
Subsidiary, except Liens created under the Loan Documents or permitted by Section 6.02.
SECTION
3.04. Financial Condition; No Material Adverse Change. (a)
The Audited Financial Statements and the Unaudited Financial Statements present fairly, in all material respects, the financial
position of Holdings, the Borrower and the Subsidiaries on a combined consolidated basis as of such dates and their results of operations
and cash flows for the period covered thereby, and were prepared in accordance with GAAP consistently applied throughout the period covered
thereby except as otherwise expressly noted therein, subject to normal year-end audit adjustments and, in the case of the Unaudited Financial
Statements, the absence of footnotes.
(b)
Except as set forth in the financial statements referred to in this Section 3.04 and the Form 10, since the Second
Amendment and Restatement Effective Date, no event, change or condition has occurred that has had, or would reasonably be expected
to have, a Material Adverse Effect.
SECTION 3.05. Properties.
(a) Each of Holdings, the Borrower and the Restricted Subsidiaries has good title to, or valid leasehold (or license or similar) interests
in or other limited property interests in, all its real and personal property necessary for the conduct of its business (including the
Mortgaged Properties), (i) free and clear of Liens, other than Liens expressly permitted by Section 6.02 and (ii) except for minor defects
in title or interest that do not interfere with its ability to conduct its business as currently conducted or as proposed to be conducted
or to utilize such properties for their intended purposes, in each case, except where the failure to do so would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
(b) To the
knowledge of Holdings, the Borrower or any Restricted Subsidiary, (i) each of Holdings, the Borrower and the Restricted Subsidiaries owns,
or has a valid and enforceable right to use, any and all Intellectual Property that is used in or necessary for its business as currently
conducted, and (ii) the use thereof by Holdings, the Borrower and each Restricted Subsidiary does not infringe upon, misappropriate or
otherwise violate the rights of any other Person, except, in each case of (i) and (ii), as would not reasonably be expected to result
in a Material Adverse Effect. No claim or litigation regarding any Intellectual Property owned or used by Holdings, the Borrower or any
Restricted Subsidiary is pending or, to the knowledge of Holdings, the Borrower or any Restricted Subsidiary, threatened against Holdings,
the Borrower or any Restricted Subsidiary that, individually or in the aggregate, would reasonably be expected to result in a Material
Adverse Effect.
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SECTION
3.06. Litigation and Environmental Matters. (a) There are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of Holdings, threatened in writing against or affecting Holdings, the Borrower or
any Restricted Subsidiary that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(b) Except with
respect to any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect,
none of Holdings, the Borrower or any Restricted Subsidiary (i) has failed to comply with any Environmental Law or to obtain, maintain
or comply with any permit, license or other approval required under any Environmental Law, (ii) has received written notice of any claim
with respect to any Environmental Liability, or (iii) is reasonably expected to incur any Environmental Liability with respect to any
Release on any real property now or previously owned, leased or operated by it.
SECTION 3.07.
Compliance with Laws. Each of Holdings, the Borrower and the Restricted Subsidiaries is in compliance with all Requirements of
Law, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.08. Sanctions;
Anti-Corruption Laws. Holdings and the Borrower have implemented and maintain in effect policies and
procedures designed to promote compliance by Holdings, the Borrower, the Restricted Subsidiaries and their respective directors, officers,
employees and agents with Anti-Corruption Laws and applicable Sanctions, and Holdings, the Borrower, the Restricted Subsidiaries and their
respective officers and employees (when acting in their role as officers and employees) and to the knowledge of Holdings, the respective
directors of Holdings and the Borrower (when acting in their role as directors), are in compliance in all respects with Anti-Corruption
Laws and applicable Sanctions and are not knowingly engaged in any activity that would reasonably be expected to result in Holdings or
the Borrower being designated as a Sanctioned Person. None of Holdings, the Borrower, any Restricted Subsidiary or any of their respective
directors, officers or employees is a Sanctioned Person.
SECTION 3.09. Investment
Company Status. None of Holdings, the Borrower or any other Loan Party is required to register as an “investment company”
under the Investment Company Act.
SECTION 3.10.
Federal Reserve Regulations. None of Holdings, the Borrower or any Restricted Subsidiary 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 of the
Board of Governors) or extending credit for the purpose of purchasing or carrying margin stock. No part of the proceeds of the Loans will
be used, directly or indirectly, for any purpose that violates the provisions of Regulations U or X of the Board of Governors.
SECTION 3.11. Taxes.
Except to the extent that failure to do so would not reasonably be expected to result in a Material Adverse Effect, each of Holdings,
the Borrower and each Restricted Subsidiary (a) has timely filed or caused to be filed all Tax returns and reports required to have been
filed by it and (b) has paid or caused to be paid all Taxes required to have been paid by it, except where the validity or amount thereof
is being contested in good faith by appropriate proceedings and where Holdings, the Borrower or such Restricted Subsidiary, as applicable,
has set aside on its books adequate reserves therefor in conformity with GAAP.
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SECTION 3.12.
ERISA. (a) Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no
ERISA Event has occurred or is reasonably expected to occur.
(b) Except as would
not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (i) each Foreign Pension Plan is in compliance
in all material respects with all Requirements of Law applicable thereto and the respective requirements of the governing documents for
such plan, (ii) with respect to each Foreign Pension Plan, none of Holdings, its Affiliates or any of their respective directors, officers,
employees or agents has engaged in a transaction that could subject Holdings, the Borrower or any Restricted Subsidiary, directly or indirectly,
to a tax or civil penalty and (iii) with respect to each Foreign Pension Plan, any underfunding has been reflected in the financial statements
furnished to Lenders in respect of any unfunded liabilities in accordance with GAAP.
SECTION 3.13.
Disclosure. As of the Second Amendment and Restatement Effective
Date, none of the reports, financial statements, certificates or other written information furnished by or on behalf of Holdings, the
Borrower or any Restricted Subsidiary to the Arrangers, the Administrative Agent, any Issuing Bank or any Lender on or before the Second
Amendment and Restatement Effective Date in connection with the negotiation of this Agreement or any other Loan Document, included herein
or therein or furnished hereunder or thereunder (as modified or supplemented by other information so furnished and taken as a whole) contains
any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not materially misleading; provided that, with respect to projected financial information, each of
Holdings and the Borrower represents only that such information, when taken as a whole, was prepared in good faith based upon assumptions
believed by it to be reasonable at the time so furnished (it being understood and agreed that (i) such projected financial information
is merely a prediction as to future events and are not to be viewed as facts, (ii) such projected financial information is subject to
significant uncertainties and contingencies, many of which are beyond the control of Holdings, the Borrower or any of the Restricted Subsidiaries
and (iii) no assurance can be given that any particular projected financial information will be realized and 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).
SECTION 3.14.
Subsidiaries. As of the Second Amendment and Restatement Effective
Date, Schedule 3.14 sets forth the name of, and the ownership interest of Holdings, the Borrower and each Subsidiary in, each Subsidiary
and identifies each Subsidiary that is a Loan Party, after giving effect to the Transactions.
SECTION
3.15. Solvency. As of the Second Amendment and
Restatement Effective Date, after giving effect to the Transactions and the rights of indemnification, subrogation and contribution
under the Security Documents, (a) the fair value of the assets of Holdings, the Borrower and the Restricted Subsidiaries, taken as a
whole, at a fair valuation, will exceed their debts and liabilities, subordinated, contingent or otherwise, (b) the present fair
saleable value of the property of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole, will be greater than the
amount that will be required to pay the probable liability of their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured, (c) Holdings, the Borrower and the Restricted
Subsidiaries, taken as a whole, will be able to pay their debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured and (d) Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole,
will not have unreasonably small capital with which to conduct the business in which they are engaged as such business is now
conducted and is proposed to be conducted following the Second
Amendment and Restatement Effective Date. For purposes of this Section, the amount of contingent liabilities at any time shall be
computed as the amount that, in 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.
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SECTION 3.16.
Collateral Matters. (a) Each Security Document, is effective to create (to the extent described therein) in favor of the Administrative
Agent for the benefit of the Secured Parties a legal, valid, enforceable security interest in the Collateral to the extent intended to
be created thereby and (x) when all financing statements and other appropriate filings or recordings are made in the appropriate offices
as may be required under applicable law and filings and recordation with the United States Patent and Trademark Office and the United
States Copyright Office (which filings or recordings shall be made to the extent required by the applicable Security Document) and (y)
when the taking of possession by the Administrative Agent of such Collateral with respect to which a security interest may be perfected
by possession (which possession shall be given to the Administrative Agent to the extent possession by the Administrative Agent is required
by the applicable Security Document) occurs, then the security interests created by the Security Documents shall constitute so far as
possible under relevant law fully perfected (or equivalently under applicable foreign law) first priority Liens on, and security interests
in (in each case with respect to such Liens and security interests, to the extent intended to be created thereby and required to be perfected
under the Loan Documents) all right, title and interest of the Loan Parties in such Collateral in each case free and clear of any Liens
other than Liens permitted under Section 6.02; provided that no representation is made that a charge
that is expressed to be a fixed charge will actually take effect as a fixed charge and not a floating charge.
(b)
Each Mortgage, upon execution and delivery thereof by the parties thereto, will create in favor of the Administrative Agent, for
the benefit of the Secured Parties, a legal, valid and enforceable security interest in all the applicable mortgagor’s right, title
and interest in and to the Mortgaged Properties subject thereto and the proceeds thereof under the laws of the relevant jurisdiction as
indicated in the Mortgage, and when the Mortgages have been filed in the jurisdictions specified therein, the Mortgages will constitute
a fully perfected security interest in all right, title and interest of the mortgagors in the Mortgaged Properties and the proceeds thereof
under the laws of the relevant jurisdiction as indicated in the Mortgage, prior and superior in right to any other Person, but subject
to Liens permitted under Section 6.02.
(c)
Upon the recordation of the Amended and Restated Collateral Agreement (or short-form intellectual
property security agreements in form and substance substantially similar to the Patent Security Agreement, Trademark Security Agreement
and/or Copyright Security Agreement (each as defined in the Amended and Restated Collateral Agreement)) with the United States
Patent and Trademark Office or the United States Copyright Office, as applicable, and the filing of the financing statements referred
to in paragraph (a) of this Section, the security interest created under the Amended and Restated Collateral Agreement will constitute
a fully perfected security interest in all right, title and interest of the Loan Parties in the Intellectual
Property (as defined in the Amended and Restated Collateral Agreement) described
therein in which a security interest may be perfected by such filing of such documents in the United
States of America, in each case prior and superior in right to any other Person, but subject to Liens permitted under Section 6.02 (it
being understood and agreed that subsequent recordings in the United States Patent and Trademark Office or the United States Copyright
Office may be necessary pursuant to Section 4.05(e) of the Amended and Restated Collateral Agreement or to perfect a security interest
in such Intellectual Property acquired by the Loan Parties after the Second
Amendment and Restatement Effective Date).
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SECTION
3.17. Affected Financial Institutions. No Loan Party is an Affected Financial Institution.
ARTICLE IV
Conditions
SECTION
4.01. Conditions to Second Amendment
and Restatement Effective Date. The conditions to the effectiveness of the amendment and restatement of the Existing Credit Agreement
in the form of this Agreement are set forth in Section 56
of the Second Amendment and Restatement Agreement.
SECTION 4.02.
Each Credit Event. On or after the Second Amendment and Restatement
Effective Date, the obligations of the Lenders to make Loans on the occasion of any Borrowing, and of the Issuing Banks to issue, amend,
renew or extend any Letter of Credit, is subject to receipt of the request therefor in accordance herewith and to the satisfaction of
the following conditions:
(a)
The representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material
respects (or, in the case of representations and warranties qualified as to materiality or Material Adverse Effect, in all respects) on
and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable,
except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and
warranty shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date.
(b)
At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing.
(c)
The Borrower shall have delivered to the Administrative Agent a request for Borrowing that complies with the requirements set forth
in Section 2.03.
Each Borrowing
(provided that a conversion or a continuation of a Borrowing shall not constitute a “Borrowing” for purposes of this
Section 4.02) (other than a Borrowing under any Incremental Facility the proceeds of which are used to finance a Limited Condition Transaction),
and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by
Holdings and the Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section 4.02.
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ARTICLE V
Affirmative Covenants
From
and including the Second Amendment and Restatement Effective
Date and until the Commitments shall have expired or been terminated and the principal of and interest on each Loan and all fees,
expenses and other amounts (other than contingent amounts not yet due) payable under this Agreement or any other Loan Document shall
have been paid in full and all Letters of Credit (other than those collateralized or back-stopped on terms reasonably satisfactory
to the applicable Issuing Bank) shall have expired or been terminated and all LC Disbursements shall have been reimbursed, Holdings
covenants and agrees, and Holdings shall (except in the case of Sections 5.01 and 5.03) cause the Borrower to covenant and agree, in
each case with the Lenders that:
SECTION 5.01.
Financial Statements and Other Information. In the case of Holdings, Holdings will furnish to the Administrative Agent, which shall
furnish to each Lender, the following:
(a)
within 90 days after the end of each fiscal year of Holdings (or such later date as Form 10-K of Holdings is required to be filed
with the SEC taking into account any extension granted by the SEC, provided that Holdings gives the Administrative Agent notice of any
such extension), its audited consolidated balance sheet and audited consolidated statements of operations, shareholders’ equity
and cash flows as of the end of and for such fiscal year, and related notes thereto, setting forth in each case in comparative form the
figures for the previous fiscal year, prepared in accordance with generally accepted auditing standards and reported on by an independent
public accountants of recognized national standing (without a “going concern” or like qualification, exception or statement
and without any qualification or exception as to the scope of such audit, but may contain a “going concern” or like qualification
that is due to (i) an upcoming maturity date of any Indebtedness occurring within one year from the time such opinion is delivered or
(ii) any potential inability to satisfy a financial maintenance covenant on a future date or in any future period) to the effect that
such financial statements present fairly in all material respects the financial condition, results of operations and cash flow of Holdings
and its Subsidiaries on a consolidated basis as of the end of and for such fiscal year and accompanied by a narrative report describing
the financial position, results of operations and cash flow of Holdings and its consolidated Subsidiaries;
(b)
within 45 days after the end of each of the first three fiscal quarters of each fiscal year of Holdings (or such later date as
Form 10-Q of Holdings is required to be filed with the SEC taking into account any extension granted by the SEC, provided that Holdings
gives the Administrative Agent notice of any such extension), its unaudited consolidated balance sheet and unaudited consolidated statements
of operations and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth
in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the
end of) the previous fiscal year, all certified by a Financial Officer of Holdings as presenting fairly in all material respects the financial
condition, results of operations and cash flows of Holdings and its Subsidiaries on a consolidated basis as of the end of and for such
fiscal quarter and such portion of the fiscal year in accordance with GAAP consistently applied, subject to normal year-end audit adjustments
and the absence of footnotes, and accompanied by a narrative report describing the financial position, results of operations and cash
flow of Holdings and its consolidated Subsidiaries;
(c) concurrently
with each delivery of financial statements under clause (a) or (b) above (or
otherwise within five (5) Business Days thereof), a certificate of a Financial Officer of Holdings (i) certifying as to whether
a Default has occurred and is continuing and, if a Default has occurred and is continuing, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations (A) demonstrating compliance
with the covenants contained in Sections 6.12 and 6.13 and (B) in the case of financial statements delivered under clause (a) above and,
solely to the extent the Borrower would be required to prepay the Term Loans pursuant to Section 2.11(d), beginning with the financial
statements for the fiscal year of Holdings endingended
December 31, 2021, of Excess Cash Flow and (iii) at any time when there is any Unrestricted Subsidiary, including as an attachment with
respect to each such financial statement, an Unrestricted Subsidiary Reconciliation Statement (except to the extent that the information
required thereby is separately provided with the public filing of such financial statement);
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(d)
within 90 days after the end of each fiscal year of Holdings (or such longer period as permitted
under Section 5.01(a)), a detailed consolidated budget for the current fiscal year (including a projected consolidated balance sheet
and consolidated statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions
used for purposes of preparing such budget);
(e) [reserved];
(f)
promptly after the same becomes publicly available, copies of all periodic and other reports, proxy statements and other materials
filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or with any national securities exchange, or distributed by
Holdings to the holders of its Equity Interests generally, as applicable; and
(g)
promptly following any request therefor, but subject to the limitations set forth in the proviso to the last sentence of Section
5.09 and Section 9.12, such other information regarding the operations, business affairs, assets, liabilities (including contingent liabilities)
and financial condition of Holdings, the Borrower or any Restricted Subsidiary, or compliance with the terms of this Agreement or any
other Loan Document, as the Administrative Agent, any Issuing Bank or any Lender may reasonably request; provided that none of
Holdings, the Borrower or any Restricted Subsidiary will be required to provide any information (i) that constitutes non-financial trade
secrets or non-financial proprietary information of Holdings, the Borrower or any Restricted Subsidiary or
any of their respective customers and suppliers, (ii) in respect of which disclosure to the Administrative Agent or any Lender
(or any of their respective representatives) is prohibited by applicable Requirements of Law or (iii) the revelation of which would violate
any confidentiality obligations owed to any third party by Holdings, the Borrower or any Restricted Subsidiary (not created in contemplation
thereof); provided, further, that if any information is withheld pursuant to clause (i), (ii), or (iii) above, Holdings,
the Borrower or any Restricted Subsidiary shall promptly notify the Administrative Agent of such withholding of information and the basis
therefor.
Information required to be furnished
pursuant to clause (a), (b), (f) or (g) of this Section shall be deemed to have been furnished if such information, or one or more annual
or quarterly reports containing such information, shall have been posted by the Administrative Agent on the Platform or shall be available
on the website of the SEC at http://www.sec.gov. Information required to be furnished pursuant to this
Section may also be furnished by electronic communications pursuant to procedures approved by the Administrative Agent.
SECTION 5.02. Notices
of Material Events. Holdings and the Borrower will furnish to the Administrative Agent, which shall furnish to each Issuing Bank and
each Lender, prompt written notice of the following:
(a) the occurrence of any Default;
(b) to
the extent permitted by the Requirements of Law, the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or, to the knowledge of a Financial Officer or another executive officer of Holdings, the Borrower
or any Restricted Subsidiary, affecting Holdings, the Borrower or any Restricted Subsidiary, that in each case would reasonably be expected
to result in a Material Adverse Effect; and
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(c)
the occurrence of any Environmental Liability or ERISA Event that has resulted, or would reasonably
be expected to result, in a Material Adverse Effect.
Each notice delivered under this
Section shall be accompanied by a written statement of a Financial Officer or other executive officer of Holdings or the Borrower setting
forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
SECTION
5.03. Information Regarding Collateral. Holdings will furnish to the Administrative Agent prompt written notice of any change
(i) in any Loan Party’s legal name, as set forth in such Loan Party’s organizational documents, (ii) in the jurisdiction
of incorporation or organization of any Loan Party, (iii) in the form of organization of any Loan Party or (iv) in any Loan Party’s
organizational identification number, if any, or, with respect to a Loan Party organized under the laws of a jurisdiction that requires
such information to be set forth on the face of a Uniform Commercial Code financing statement (or the equivalent thereof in each applicable
jurisdiction), the Federal Taxpayer Identification Number of such Loan Party. Notwithstanding
the foregoing, no such notification shall be required, and there shall be no breach of this Section 5.03 for failure to deliver such
notification, in each case, with respect to any ADI Spin-Off Reorganization Actions (whether occurred prior to or occurring following
the Second Amendment and Restatement Effective Date).
SECTION
5.04. Existence; Conduct of Business. Each of Holdings and the Borrower will, and will cause each of its Restricted
Subsidiaries to, do or cause to be done all things necessary to maintain, preserve, protect, enforce, renew and keep in full force
and effect its legal existence and the rights, licenses, permits, privileges, franchises and IP Rights in each case to the extent
necessary for the conduct of its business; provided that the foregoing shall not prohibit (i) any merger, consolidation,
liquidation or dissolution permitted under Section 6.03 or (ii) Holdings, the Borrower and each
Restricted Subsidiary from allowing registered or applied-for IP Rights to lapse, expire, become abandoned or otherwise terminate in
the ordinary course of businessOrdinary
Course of Business or where, in its reasonable business judgment, the lapse, expiration,
abandonment or termination would not materially interfere with the business of Holdings, the Borrower or any Restricted
Subsidiary, as applicable.
SECTION 5.05. Payment
of Taxes. Each of Holdings and the Borrower will, and will cause each of its Restricted Subsidiaries to, pay its Tax liabilities before
the same shall become delinquent or in default, except where (a) (i) the validity or amount thereof is being contested in good faith by
appropriate proceedings and (ii) Holdings, the Borrower or such Restricted Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP or (b) the failure to make payment would not reasonably be expected to result in a Material Adverse
Effect.
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SECTION
5.06. Maintenance of Properties. Except if failure to do so would not reasonably be expected to have a Material Adverse Effect,
each of Holdings and the Borrower will, and will cause each of its Restricted Subsidiaries to, keep and maintain all property necessary
for the conduct of its business in good working order and condition, ordinary wear and tear excepted and casualty and condemnation excepted.
SECTION 5.07.
Insurance. Holdings will, and will cause each of its Restricted Subsidiaries to, maintain, with financially sound and reputable
insurance companies, insurance in such amounts (with no greater risk retention) and(or,
in accordance with applicable laws and good business practices, self-insurance), in each case against
such risks as are consistent with the past practices of the Loan Parties or otherwise as is customarily maintained by companies of established
repute engaged in the same or similar businesses operating in the same or similar locations. The Borrower shall take commercially
reasonable efforts cause the main property and liability policies maintained by or on behalf of the Borrower to (a) name the Administrative
Agent, on behalf of the Secured Parties, as an additional insured thereunder and (b) contain a loss payable clause or endorsement that
names the Administrative Agent, on behalf of the Secured Parties, as the loss payee thereunder. With respect to each Mortgaged Property
that is located in an area determined by the Federal Emergency Management Agency to have special flood hazards, the applicable Loan Party
has obtained, and will maintain, with financially sound and reputable insurance companies, such flood insurance as is required under applicable
law, including Regulation H of the Board of Governors. Holdings will furnish to the Lenders, upon reasonable request of the Administrative
Agent, information in reasonable detail as to the insurance so maintained; provided that no Loan Party shall be required to deliver
original copies of any insurance policies.
SECTION 5.08. [Reserved].
SECTION 5.09.
Books and Records; Inspection and Audit Rights. Each of Holdings and the Borrower will, and will cause each of its Restricted Subsidiaries
to, keep proper books of record and accounts in which full, true and correct entries in conformity with GAAP and all Requirements of Law
are made of all dealings and transactions in relation to its business and activities. Each of Holdings and the Borrower will, and will
cause each of its Restricted Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable
prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all at such reasonable times during regular office hours but no
more often than one (1) time during any calendar year absent the existence of an Event of Default; provided that excluding any
such visits and inspections during the continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may
exercise visitation and inspection rights of the Administrative Agent and the Lenders under this Section 5.09; provided, further
that none of Holdings, the Borrower or any Restricted Subsidiary will be required to disclose, permit the inspection, examination or making
copies or abstracts of, or discussion of, any document, information or other matter (i) that constitutes non-financial trade secrets or
non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective
representatives or contractors) is prohibited by Requirement of Law or any binding agreement (not created in contemplation thereof) or
(iii) that is subject to attorney-client or similar privilege or constitutes attorney work product.
SECTION
5.10. Compliance with Laws. Each of Holdings and the Borrower will, and will take reasonable action to cause each of its
Restricted Subsidiaries to, comply with all Requirements of Law (including ERISA, Environmental Laws and the USA PATRIOT Act) with
respect to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected
to result in a Material Adverse Effect.
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SECTION
5.11. Use of Proceeds; Letters of Credit (a) The proceeds of the Initial Term Loans, together with cash on hand, will be used solely
for (i) the payment of fees and expenses payable in connection with the Transactions and (ii) to consummate the Amendment and Restatement
Date Refinancing and the Senior Notes Redemption and for other general corporate purposes. On and after
the Amendment and RestatementAfter the Effective
Date, the proceeds of the Revolving Loans, as well as the proceeds of any Incremental Extension of Credit (unless otherwise provided
in the applicable Incremental Facility Amendment) will be used for working capital and other general corporate purposes, including acquisitions
permitted by this Agreement, of Holdings, the Borrower and the Restricted Subsidiaries. No part of the proceeds of any Loan will be used
in violation of the representation set forth in Section 3.10. Letters of Credit will be used by Holdings, the Borrower and the Restricted
Subsidiaries for general corporate purposes. The proceeds of the First Amendment Term Loans made on the First Amendment Effective Date,
together with cash on hand, will be used solely (i) to finance the First Alert Acquisition, (ii) pay fees, costs and expenses incurred
in connection with the First Alert Acquisition and this Amendment and (iii) for working capital and other general corporate purposes.
The proceeds of the Fourth Amendment Term Loans made on the Fourth Amendment Effective Date, together with cash on hand, will be used
solely (i) to finance the Fourth Amendment Acquisition and (ii) to pay fees, costs and expenses incurred in connection with the Transactions
(as defined in the Fourth Amendment). The proceeds of the Sixth Amendment Term Loans made on the Sixth Amendment Effective Date, together
with cash on hand, will be used solely (i) to finance the IRA Termination Payment and (ii) to pay fees, costs and expenses incurred in
connection with the Transactions (as defined in the Sixth Amendment).
(b) The Borrower
will not request any Borrowing or any Letter of Credit, and each of Holdings and the Borrower shall not use, and shall procure that its
Subsidiaries and its or their respective directors, officers and employees shall not directly or indirectly use, the proceeds of any Borrowing
or Letter of Credit (A) in furtherance of an offer, payment, promise to pay or authorization of the payment or giving of money, or anything
else of value, to any Person in material violation of any Anti-Corruption Laws by Holdings, the Borrower or any of their respective Subsidiaries,
(B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or
in any Sanctioned Country, except to the extent permitted for a Person required to comply with Sanctions, or (C) in any manner that would
result in the violation of any Sanctions applicable to any party hereto.
SECTION 5.12.
Additional Subsidiaries. (a) If any additional Subsidiary (other than any Excluded Subsidiary) is formed or acquired or if any
Subsidiary becomes a Designated Subsidiary, in each case after the Second
Amendment and Restatement Effective Date, Holdings will, as promptly as practicable and, in any event, within 90 days (or such longer
period as the Administrative Agent, acting reasonably, may agree to in writing (including electronic mail)) after such Subsidiary is formed
or acquired or becomes a Designated Subsidiary, notify the Administrative Agent thereof and, to the extent applicable, cause the Collateral
and Guarantee Requirement to be satisfied with respect to such Subsidiary (and any Material Real Property owned by such Subsidiary) and
with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party and such other documents,
certificates and opinions consistent with those previously delivered
pursuant to the Amendment and RestatementExisting
Credit Agreement that the Administrative Agent may reasonably request with respect to such Subsidiary.
(b)
Holdings may designate by writing to the Administrative Agent any wholly owned Restricted Subsidiary that is a U.S. Subsidiary and otherwise
an Excluded Subsidiary as a Designated Subsidiary (each such Restricted Subsidiary, a “Designated Subsidiary”).
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SECTION 5.13.
Further Assurances. (a) Each of Holdings and the Borrower will, and will cause each of its Subsidiaries that is a Loan Party to,
execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including
the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents, and the recording of
instruments in the United States Patent and Trademark Office and the United States Copyright Office), that may be required under any applicable
law, or that the Administrative Agent or the Required Lenders may reasonably request, to cause the Collateral and Guarantee Requirement
to be and remain satisfied and are necessary in the applicable jurisdiction in order for Liens in the Collateral to remain perfected,
all at the expense of the Loan Parties. Notwithstanding anything contained in this Agreement, no Mortgage
shall be executed and delivered to the Administrative Agent with respect to any real property located in an area identified by the Federal
Emergency Management Agency (or any successor agency) as a “special flood hazard area” with respect to which flood insurance
has been made available under Flood Insurance Laws unless and until each Lender has received, at least 30 calendar days prior to such
execution and delivery, a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination (together
with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each applicable mortgagor
relating thereto) (provided, that in no event shall the Borrower be required to deliver more than one flood determination to the
Lenders as a whole) and each such lender has confirmed to the Administrative Agent that flood insurance due diligence and flood insurance
compliance has been completed to its reasonable satisfaction (such written confirmation not to be unreasonably withheld or delayed); provided
however that the time period for execution and delivery of any such Mortgage (and any related documents pursuant to the Collateral
and Guarantee Requirement) by the applicable Loan Party shall, to the extent necessary, be automatically
extended to the date on which the Administrative Agent is permitted under this Section 5.13 to enter into such Mortgage.
(b) If any
material assets (other than Excluded Property) including any Material Real Property, or any IP Rights (other than Excluded Property) are
acquired by a Loan Party after the Second Amendment and Restatement
Effective Date (other than assets constituting Collateral under the applicable Security Document that become subject to the Lien
created by such Security Document upon acquisition thereof), Holdings will notify the Administrative Agent and the Lenders thereof, and,
if requested by the Administrative Agent or the Required Lenders, Holdings will cause such assets to be subjected to a Lien securing the
Obligations and will, subject to the Collateral and Guarantee Requirement, take, and cause the Loan Parties to take, such actions as shall
be necessary to grant and perfect such Liens, including actions described in paragraph (a) of this Section, and otherwise cause the Collateral
and Guarantee Requirement to be satisfied, all at the expense of the Loan Parties.
SECTION 5.14. Credit
Ratings. Each of Holdings and the Borrower will use reasonable efforts to cause the credit facilities made available under this Agreement
to be continuously rated by S&P and Moody’s (but not any particular rating). Holdings will use commercially reasonable efforts
to maintain a corporate rating (but not any particular rating) from S&P and a corporate family rating (but not any particular rating)
from Moody’s, in each case in respect of Holdings.
SECTION 5.15.
Post-Effective Date Matters. As promptly as practicable, and in any event within the time period specified in Schedule 5.15 (or
such longer period as the Administrative Agent, acting
reasonably, may agree to in writing), after the Second Amendment and
Restatement Effective Date, Holdings and the Borrower shall deliver, or cause to be delivered, the items specified in Schedule 5.15 hereof
or complete such undertakings described on Schedule 5.15 hereof, if any, on or before the dates specified with respect to such items,
or such later dates as may be agreed to by, or as may be waived by, the Administrative Agent in its reasonable discretion.
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SECTION 5.16. [Reserved].
SECTION
5.17. Designation of Subsidiaries. Holdings may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary
or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (a) immediately before and after such designation, no
Default or Event of Default shall have occurred and be continuing or would result from such designation, (b) immediately after giving
effect to such designation, the Consolidated Total Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently
ended fiscal quarter of Holdings for which consolidated financial statements
have most recently been, or were required to be, delivered to the Administrative Agent pursuant to Section 5.01(a) or 5.01(b),
is less than 3.00 to 1.00, and the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer setting
forth reasonably detailed calculations demonstrating compliance with this clause (b) and (c) no Subsidiary may be designated as an Unrestricted
Subsidiary if it is (i) a “restricted subsidiary” or a “guarantor” (or any similar designation) for the Senior
Notes or any Material Indebtedness that is subordinated in right of payment to the Obligations, (ii) U.S. HoldCo 2 or any other Subsidiary
that holds, directly or indirectly, any Equity Interests in the Borrower or (iii) the Borrower. The designation of any Subsidiary as
an Unrestricted Subsidiary shall constitute an Investment by the parent company of such Subsidiary therein under Section 6.04(u) at the
date of designation in an amount equal to the fair market value of such parent company’s investment therein. The designation of
any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the time of designation of any Indebtedness
or Liens of such Subsidiary, and the making of an Investment by such Subsidiary in any Investments of such Subsidiary, in each case existing
at such time, and (ii) a return on any Investment in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal
to the fair market value at the date of such designation of the Borrower’s or its Subsidiary’s (as applicable) Investment
in such Subsidiary.
SECTION
5.18. ADI Spin-Off Prepayment. Holdings shall cause the Borrower to use the proceeds of the ADI Spin-Off Distribution, together with
cash on hand, to effect the ADI Spin-Off Prepayment.
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ARTICLE VI
Negative Covenants
Until the Commitments
shall have expired or been terminated and the principal of and interest on each Loan and all fees, expenses and other amounts (other than
contingent amounts not yet due) payable under this Agreement or any other Loan Document have been paid in full, and all Letters of Credit
(other than those collateralized or back-stopped on terms reasonably satisfactory to the applicable Issuing Bank) have expired or been
terminated and all LC Disbursements shall have been reimbursed:
SECTION 6.01. Indebtedness;
Certain Equity Securities. (a) Neither Holdings nor the Borrower will, nor will Holdings or the Borrower permit any of the Restricted
Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:
(i)
Indebtedness created hereunder and under the other Loan Documents (including any Indebtedness incurred pursuant to Section 2.21
or 2.23);
(ii)
(A) the Senior Notes and (B) Refinancing Indebtedness in respect of the Senior Notes (it being understood and agreed that, for
purposes of this Section, any Indebtedness that is incurred for the purpose of repurchasing or redeeming any Senior Notes (or any Refinancing
Indebtedness in respect thereof) shall, if otherwise meeting the requirements set forth in the definition of the term “Refinancing
Indebtedness”, be deemed to be Refinancing Indebtedness in respect of the Senior Notes (or such Refinancing Indebtedness), and shall
be permitted to be incurred and be in existence pursuant to this Section 6.01(a) notwithstanding that the proceeds of such Refinancing
Indebtedness shall not be applied to make such repurchase or redemption of the Senior Notes (or such Refinancing Indebtedness) immediately
upon the incurrence thereof, if the proceeds of such Refinancing Indebtedness are applied to make such repurchase or redemption no later
than 90 days following the date of the incurrence thereof;
(iii) Indebtedness
(and Guarantees thereof) existing on the Second Amendment and
Restatement Effective Date and to the extent having a principal amount in excess of $5,000,000 individually, set forth in Schedule
6.01 (in each case, except for intercompany Indebtedness), any Refinancing Indebtedness in respect thereof and any intercompany
Indebtedness existing on the Second Amendment and Restatement
Effective Date arising out of, or in connection with, the Transactions or
the ADI Spin-Off Reorganization Actions;
(iv)
Indebtedness of the Borrower to any Restricted Subsidiary and of any Restricted Subsidiary to Holdings, the Borrower or any other
Restricted Subsidiary so long as (A) such Indebtedness of any Subsidiary that is not a Loan Party to Holdings, the Borrower or any other
Loan Party shall be permitted under Section 6.04(f) and (B) such Indebtedness of the Borrower or any other Loan Party owing to any Restricted
Subsidiary shall be subordinated in right of payment to the Obligations on the terms set forth in the Global Intercompany Note (or any
other agreement with substantially similar terms of subordination reasonably satisfactory to the Administrative Agent);
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(v) Guarantees
by the Borrower of Indebtedness of any Restricted Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the
Borrower or any other Restricted Subsidiary (other than Indebtedness incurred pursuant to clause (a)(iii) or (a)(vii) of this
Section 6.01); provided that (A) the Indebtedness so Guaranteed is permitted by this Section, (B) Guarantees by the Borrower
or any other Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04, (C)
Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Restricted Subsidiary to the
same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations (if such Indebtedness is
subordinated to the Obligations) and (D) none of the Senior Notes shall be Guaranteed by any Subsidiary unless such
Subsidiary is a Loan Party;
(vi)
(A) Indebtedness of any member of the Restricted Group incurred to finance the acquisition, construction, repair, replacement
or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed by any member of the
Restricted Group in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition
thereof; provided that such Indebtedness is incurred prior to or within 270 days after such acquisition or the completion of such
construction, repair, replacement or improvement, and (B) Refinancing Indebtedness in respect of Indebtedness incurred or assumed pursuant
to clause (A) above; provided further that at the time of incurrence thereof, the aggregate principal amount of Indebtedness
permitted by this clause (vi), together with any sale and leaseback transaction incurred pursuant to Section 6.06, outstanding under
this clause (vi) at any time shall not exceed the greater of (x) $55,000,000 and (y) 14% of LTM Consolidated EBITDA.
(vii) (A)
Indebtedness of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is
merged or consolidated with or into a Restricted Subsidiary in a transaction permitted hereunder) after the Second Amendment
and Restatement Effective Date, or Indebtedness of any Person that is assumed by any Restricted Subsidiary in connection with an
acquisition of assets by such Restricted Subsidiary in an acquisition permitted by Section 6.04; provided that such
Indebtedness exists at the time such Person becomes a Restricted Subsidiary (or is so merged or consolidated) or such assets are
acquired and is not created in contemplation of or in connection with such Person becoming a Restricted Subsidiary (or such merger
or consolidation) or such assets being acquired and (B) Refinancing Indebtedness in respect of Indebtedness incurred or assumed, as
applicable, pursuant to clause (A) above;
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(viii)
other Indebtedness in an aggregate principal amount outstanding under this clause (viii) at any time not exceeding, the greater
of (x) $165,000,000 and (y) 41% of LTM Consolidated EBITDA,
(ix) Indebtedness
incurred pursuant to Permitted Receivables Facilities; provided that the Indebtedness outstanding in reliance on this clause
(ix) shall not exceed, at the time of incurrence thereof, the greater of (x) $100,000,000 and (y) 25% of LTM Consolidated EBITDA in
the aggregate;
(x)
Indebtedness and obligations in respect of self-insurance and obligations in respect of bids, tenders, trade contracts (other than
for payment of Indebtedness), leases (other than Capital Lease Obligations), public or statutory obligations, surety, stay, customs and
appeal bonds, performance bonds and other obligations of a like nature and similar obligations or obligations in respect of letters of
credit, bank guarantees or similar instruments related thereto, in each case provided in the ordinary
course of businessOrdinary Course of Business;
(xi)
Indebtedness in respect of Hedging Agreements permitted by Section 6.07 (including any Back to Back Arrangements);
(xii)
Indebtedness in respect of any overdraft facilities, employee credit card programs, netting services, automated clearinghouse arrangements
and other cash management and similar arrangements in the ordinary course of businessOrdinary
Course of Business; provided, that with respect to any such Indebtedness that constitutes Secured Cash Management Obligations
and is incurred in reliance on this clause (xii) by Restricted Subsidiaries that are not Loan Parties, at the time such Indebtedness is
incurred and after giving effect thereto, the Non-Guarantor Debt Basket shall not be exceeded;
(xiii) Indebtedness
in the form of deferred compensation (including indemnification obligations, obligations in respect of purchase price adjustments,
earnouts, non-competition agreements and other contingent arrangements) or other arrangements representing acquisition consideration
or deferred payments of a similar nature incurred in connection with any acquisition or other investment permitted under this
Agreement;
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(xiv) Refinancing
Term Loan Indebtedness or Indebtedness in respect of any Refinancing Revolving Commitments, in each case incurred pursuant to
Section 2.23; provided that, in the case of any Refinancing Term Loan Indebtedness, the Net Proceeds thereof are used to make
the prepayments required under clause (a)(iii) of Section 2.23;
(xv)
Alternative Incremental Facility Debt, provided that the (A) aggregate principal amount of such Alternative Incremental
Facility Debt shall not exceed the amount permitted under Section 2.21 and (B) if any such Alternative Incremental Facility Debt (1) is
secured by Liens on the Collateral on a pari passu basis with the Liens securing the Obligations or (2) is secured by Liens on
the Collateral on a junior basis to the Liens securing the Obligations, such Alternative Incremental Facility Debt shall be subject to
an Acceptable Intercreditor Agreement;
(xvi)
Indebtedness representing deferred compensation to directors, officers, consultants or employees of Holdings, the Borrower and
the Restricted Subsidiaries incurred in the ordinary course of businessOrdinary
Course of Business;
(xvii)
Indebtedness consisting of promissory notes issued by any Loan Party to current or former officers, directors, consultants and
employees or their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings
permitted by Section 6.08;
(xviii)
[reserved];
(xviii)
Indebtedness (including any intercompany Indebtedness) incurred in connection with (i) ADI Spin-Off Date Actions or (ii) ADI Spin-Off
Reorganization Actions; provided that, in the case of this clause (ii), with respect to any such Indebtedness incurred on or after
the Second Amendment and Restatement Effective Date, such incurrence does not have a material impairment on the Guarantees in favor of
the Lenders or the security interests of the Lenders in the Collateral; provided further that, in the case of clauses (i) and
(ii), after giving effect thereto, the Consolidated Total Leverage Ratio, after giving pro forma effect to the ADI Spin-Off Transaction
and any other transactions (including any prepayment of Indebtedness) in connection therewith, does not exceed 4.00:1.00 (this clause
(xviii), the “ADI Spin-Off Debt Basket”);
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(xix)
Indebtedness of Restricted Subsidiaries that are not Loan Parties under bilateral local law credit
and other working capital facilities that are not secured by the Collateral; provided that at the time such Indebtedness is incurred
under this clause (xix) and after giving effect thereto, such incurrence shall not cause the Non-Guarantor Debt Basket to be exceeded
(without duplication of any Cash Management Financing Facilities); provided, further that any such Indebtedness secured by a Letter
of Credit issued hereunder in a principal amount not to exceed the face amount of such Indebtedness shall not count toward the aggregate
amount permitted under this Section 6.01(a)(xix) (including the Non-Guarantor Debt Basket);
(xx)
other Indebtedness of Holdings or any of its Restricted Subsidiaries so long as (A) after giving
effect thereto on a Pro Forma Basis (1) in the case of Indebtedness that is secured by a Lien on the Collateral on a pari
passu basis to the Liens securing the Obligations, the Consolidated First Lien Leverage Ratio does
not exceed (I) 1.375 to 1.00 or (II) if incurred in connection with a Permitted Acquisition, the greater of (x) 1.375
to 1.00 and (y) the Consolidated First Lien Leverage Ratio immediately prior to such incurrence,
(2) in the case of Indebtedness secured by a Lien on the Collateral on a junior basis to the Liens securing the Obligations,
the Consolidated Secured Leverage Ratio does not exceed (I) 1.875 to 1.00 or (II) if incurred in connection with a Permitted Acquisition,
the greater of (x) 1.875 to 1.00 and (y) the Consolidated Secured Leverage Ratio immediately prior
to such incurrence and (3) in the case of any Indebtedness that is unsecured, the Consolidated Total Leverage
Ratio does not exceed (I) 2.975 to 1.00 or (II) if incurred in connection with a Permitted Acquisition, the greater of (x) 2.975 to 1.00
and (y) the Consolidated Total Leverage Ratio immediately prior to such incurrence, (B) the incurrence of Indebtedness pursuant
to this clause (xx) by a Restricted Subsidiary that is not a Loan Party shall not cause the Non-Guarantor Debt Basket to be exceeded
(after giving effect thereto on a Pro Forma Basis), (C) such Indebtedness shall not mature or, in the case of unsecured Indebtedness
and Indebtedness secured by a Lien on the Collateral that is junior to the Liens securing the Obligations, require any scheduled amortization
or require any scheduled amortization or require scheduled payments of principal or shall be subject to any mandatory redemption, repurchase,
repayment or sinking fund obligation, in each case, prior to the Latest Maturity Date as of such date, and shall have a weighted average
life to maturity not shorter than the longest remaining weighted average life to maturity of the Loans,
(D) no Event of Default shall exist or shall result therefrom (it being understood that if the proceeds of the relevant Indebtedness
will be applied to finance a Limited Condition Transaction and the Borrower has made an LCT Election, no Event of Default shall exist
and be continuing as of the LCT Test Date), (E) such Indebtedness has terms and conditions that in the good faith determination of the
Borrower are no less favorable to the Borrower (when taken as a whole) to the terms and conditions of the Loan Documents (when taken
as a whole) and (F) if any such Indebtedness (1) is secured by Liens on the Collateral on a pari passu basis with the Liens
securing the Obligations or (2) is secured by Liens on the Collateral on a junior basis to the Liens securing the Obligations, such Indebtedness
shall be subject to an Acceptable Intercreditor Agreement;
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(xxi)
Indebtedness constituting obligations arising in respect of Cash Management Services;
(xxii)
Indebtedness constituting Secured Hedging Obligations;
(xxiii) Indebtedness
consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case,
in the ordinary course of businessOrdinary
Course of Business;
(xxiv)
Indebtedness constituting Secured Supply Chain Financing Obligations;
(xxv)
Indebtedness incurred by a Restricted Subsidiary in connection with bankers’ acceptances, discounted bills of exchange or
the discounting or factoring of receivables for credit management purposes, in each case incurred or undertaken in the ordinary
course of businessOrdinary Course of Business on arm’s
length commercial terms on a non-recourse basis;
(xxvi)
Indebtedness incurred by the Borrower or any of the Restricted Subsidiaries in respect of letters of credit, bank guarantees, bankers’
acceptances or similar instruments issued or created in the ordinary course of businessOrdinary
Course of Business or consistent with past practice, in each case, in respect of workers’ compensation claims, health, disability
or other employee benefits or property, casualty or liability insurance or self-insurance or other reimbursement-type obligations regarding
workers’ compensation claims;
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(xxvii) (x) Indebtedness in respect of
obligations of the Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress
payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts
extended by suppliers on customary trade terms in the ordinary course of
businessOrdinary Course of Business and not in
connection with the borrowing of money and (y) Indebtedness in respect of intercompany obligations of the Borrower or any Restricted
Subsidiary in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary
course of businessOrdinary Course of Business
and not in connection with the borrowing of money;
(xxviii) Indebtedness
to a customer to finance the acquisition of any equipment necessary to perform services for such customer; provided that the terms
of such Indebtedness are consistent with those entered into with respect to similar Indebtedness prior to the Second Amendment and Restatement Effective Date, including that (x) the
repayment of such Indebtedness is conditional upon such customer ordering a specific volume of goods and (y) such Indebtedness does
not bear interest or provide for scheduled amortization or maturity;
(xxix) (x) tenant improvement loans and allowances in the ordinary course of businessOrdinary
Course of Business and (y) to the extent constituting Indebtedness, guaranties in the ordinary
course of businessOrdinary Course of Business of the
obligations of suppliers, customers, franchisees, lessors and licensees of the Borrower and any Restricted Subsidiary;
(xxx) Indebtedness
in respect of Additional Letter of Credit Facilities in an aggregate principal or face amount at any time outstanding not to exceed the
greater of (x) $25,000,000 and (y) 6% of LTM Consolidated EBITDA; and
(xxxi) all
premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations
described in clauses (i) through (xxx) above.
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(b) For
purposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness at any time, whether at the
time of incurrence or upon the application of all or a portion of the proceeds thereof or subsequently, meets the criteria of more
than one of the categories (other than ratio-based baskets) of Section 6.01(a), Holdings, the Borrower and the Restricted
Subsidiaries shall, in their sole discretion, divide, classify or reclassify, or at any later time divide, classify or reclassify,
such item of Indebtedness solely between and among such categories and in each case, that would be permitted to be incurred in
reliance on the applicable exception as of the date of such reclassification; provided that Indebtedness incurred hereunder
shall only be classified as incurred under Section 6.01(a)(i) and the Senior Notes shall only be classified as incurred under
Section 6.01(a)(ii)(A). Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original
issue discount, the payment of interest or dividends in the form of additional Indebtedness with the same terms, the payment of
dividends on Disqualified Equity Interests in the form of additional shares of Disqualified Equity Interests of the same class, the
accretion of liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in
the exchange rate of currencies will not be deemed to be an incurrence of Indebtedness or Disqualified Equity Interests for purposes
of this covenant. Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness that are otherwise
included in the determination of a particular amount of Indebtedness shall not be included in the determination of such amount of
Indebtedness; provided that the incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case
may be, was in compliance with this covenant.
(c)
For purposes of determining compliance with any dollar-denominated restriction on the Incurrenceincurrence
of Indebtedness, the principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency
exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed or first incurred (at
the Borrower’s election), in the case of revolving credit debt; provided that if such Indebtedness is incurred to refinance
other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable dollar-denominated restriction to
be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such dollar-denominated restriction
shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal
amount of such Indebtedness being refinanced (plus the aggregate amount of premiums (including reasonable tender premiums), defeasance
costs and fees, discounts and expenses in connection therewith).
SECTION 6.02.
Liens. (a) Neither Holdings nor the Borrower will, nor will Holdings or the Borrower permit any of the Restricted Subsidiaries
to, create, incur, assume or permit to exist any Lien on any asset now owned or hereafter acquired by it, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii)
any Lien on any asset of the Borrower or any Restricted Subsidiary existing on the Second Amendment and Restatement Effective Date and to the extent securing Indebtedness or obligations (other
than intercompany Indebtedness or obligations) having a principal amount in excess of $5,000,000 individually, as
set forth in Schedule 6.02; provided that (A) such Lien shall not apply to any other asset of the Borrower or any Restricted Subsidiary
(other than assets financed by the same financing source in the ordinary course of businessOrdinary
Course of Business) and (B) such Lien shall secure only those obligations that it secures on the
Second Amendment and Restatement
Effective Date and extensions, renewals, replacements and refinancings thereof so long as the principal amount of such extensions, renewals,
replacements and refinancings does not exceed the principal amount of the obligations being extended, renewed, replaced or refinanced
or, in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.01(a)(iii) as Refinancing Indebtedness
in respect thereof;
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(iv)
any Lien existing on any asset prior to the acquisition thereof by the Borrower or any Restricted Subsidiary or existing on any
asset of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated
with or into a Restricted Subsidiary in a transaction permitted hereunder) after the Second Amendment and Restatement Effective Date prior to the time such Person becomes a Restricted Subsidiary (or is so merged or consolidated);
provided that (A) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming
a Restricted Subsidiary (or such merger or consolidation), (B) such Lien shall not apply to any other asset of Holdings, the Borrower
or any Restricted Subsidiary (other than (x) assets financed by the same financing source in the ordinary
course of businessOrdinary Course of Business and
(y) in the case of any such merger or consolidation, the assets of any special purpose merger Subsidiary that is a party thereto) and
(C) such Lien shall secure only those obligations that it secures on the date of such acquisition or the date such Person becomes a Restricted
Subsidiary (or is so merged or consolidated) and extensions, renewals, replacements and refinancings thereof so long as the principal
amount of such extensions, renewals and replacements does not exceed the principal amount of the obligations being extended, renewed
or replaced or, in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.01(a)(vii) as Refinancing
Indebtedness in respect thereof;
(v) Liens
on fixed or capital assets acquired, constructed, repaired, replaced or improved (including any such assets made the subject of a
Capital Lease Obligation incurred) by the Borrower or any Restricted Subsidiary; provided that (A) such Liens secure
Indebtedness incurred to finance such acquisition, construction, repair, replacement or improvement and permitted by clause (vi)(A)
of Section 6.01(a) or any Refinancing Indebtedness in respect thereof permitted by clause (vi)(B) of Section 6.01(a), (B) such Liens
and the Indebtedness secured thereby are incurred prior to or within 270 days after such acquisition or the completion of such
construction, repair, replacement or improvement (provided that this clause (B) shall not apply to any Refinancing
Indebtedness permitted by clause (vi)(B) of Section 6.01(a) or any Lien securing such Refinancing Indebtedness), (C) the
Indebtedness secured thereby does not exceed the cost of acquiring, constructing, repairing, replacing or improving such fixed or
capital asset and in any event, the aggregate principal amount of such Indebtedness does not exceed the amount permitted under the
second proviso of Section 6.01(a)(vi) at any time outstanding and (D) such Liens shall not apply to any other property or assets of
the Borrower or any Restricted Subsidiary (except assets financed by the same financing source in the ordinary
course of businessOrdinary Course of
Business);
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(vi)
customary rights and restrictions contained in agreements relating to such sale or transfer pending
the completion thereof in connection with the sale or transfer of any Equity Interests or other assets in a transaction permitted under
Section 6.05;
(vii)
any encumbrance or restriction (including put and call arrangements, tag, drag, right of first refusal and similar rights) with
respect to Equity Interests of any (A) Restricted Subsidiary that is not a wholly owned Subsidiary or (B) joint venture or similar arrangement
pursuant to any joint venture or similar agreement;
(viii)
Liens on any cash advances or cash earnest money deposits, escrow arrangements or similar arrangements made by the Borrower or
any Restricted Subsidiary in connection with any letter of intent or purchase agreement for an acquisition or other transaction permitted
hereunder;
(ix)
Liens on Collateral securing any Permitted Second Priority Refinancing Debt or Alternative Incremental Facility Debt; provided
that such Liens are subject to the terms of an Acceptable Intercreditor Agreement;
(x)
Liens granted by a Subsidiary that is not a Loan Party in respect of Indebtedness permitted to be
incurred by such Subsidiary under Section 6.01;
(xi) Liens
not otherwise permitted by this Section to the extent that the aggregate outstanding principal amount of the obligations secured
thereby outstanding under this clause (xi) at any time does not exceed the greater of (x) $165,000,000 and (y) 41% of LTM
Consolidated EBITDA;
(xii)
Liens securing Indebtedness incurred as secured Indebtedness under Section 6.01(a)(xv) or (xx);
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(xiii)
[reserved];
(xiii)
Liens incurred in connection with any (i) ADI Spin-Off Date Actions or (ii) ADI Spin-Off Reorganization Actions; provided that,
in the case of this clause (ii), with respect to any such Lien incurred on or after the Second Amendment and Restatement Effective Date,
such incurrence does not have a material impairment on the Guarantees in favor of the Lenders or the security interests of the Lenders
in the Collateral; provided further that, in the case of clauses (i) and (ii), after giving effect thereto, the Consolidated Total
Leverage Ratio, after giving pro forma effect to the ADI Spin-Off Transaction and any other transactions (including any prepayment of
Indebtedness) in connection therewith, does not exceed 4.00:1.00 (this clause (xiii), the “ADI Spin-Off Lien Basket”);
(xiv) [reserved];
(xv)
Liens on property or other assets of any Restricted Subsidiary that is not a Loan Party, which Liens secure Indebtedness of such
Restricted Subsidiary or another Restricted Subsidiary that is not a Loan Party, in each case permitted under Section 6.01(a);
(xvi)
Liens on the Collateral securing Secured Cash Management Obligations, Secured Hedging Obligations, Secured Supply Chain Financing
Obligations and Secured Additional Letter of Credit Facility Obligations;
(xvii)
Liens on cash and Permitted Investments used to satisfy or discharge Indebtedness; provided such satisfaction or discharge is permitted
hereunder;
(xviii)
Liens on Equity Interests of any joint venture or Unrestricted Subsidiary (a) securing obligations of such joint venture or Unrestricted
Subsidiary or (b) pursuant to the relevant joint venture agreement or arrangement;
(xix)
Liens on cash, Permitted Investments or other marketable securities securing (A) letters of credit of any Loan Party that are
cash collateralized on the Second Amendment and Restatement Effective
Date in an amount of cash, Permitted Investments or other marketable securities with a fair market value of up to 105% of the face amount
of such letters of credit being secured or (B) letters of credit and other credit support obligations in the ordinary
course of businessOrdinary Course of Business; and
(xx) any
Liens on cash or deposits granted in favor of any Issuing Bank to cash collateralize any Defaulting Lender’s participation in
Letters of Credit or other obligations in respect of Letters of Credit, in each case as contemplated by this Agreement;
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provided that the expansion
of Liens by virtue of accretion or amortization of original issue discount, the payment of dividends in the form of Indebtedness, and
increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies will not be
deemed to be an incurrence of Liens for purposes of this Section 6.02. For purposes of determining compliance with this Section 6.02,
(x) a Lien need not be incurred solely by reference to one category of Liens described in this Section 6.02 but may be incurred under
any combination of such categories (including in part under one such category and in part under any other such category) and (y) in the
event that a Lien (or any portion thereof) meets the criteria of one or more of such categories hereof (other
than ratio-based baskets, if any), Holdings, the Borrower and the Restricted Subsidiaries shall, in their sole discretion, classify or
reclassify such Lien (or any portion thereof) solely between and among such categories and, in each case, that would be permitted to be
incurred in reliance on the applicable exception as of the date of such reclassification.
Notwithstanding
the foregoing, (i) neither Holdings nor the Borrower will, nor will they permit any of their Restricted Subsidiaries that are Loan Parties
to suffer to exist any Lien on the Golden Valley Property to secure Indebtedness for borrowed money without equally and ratably securing
the Obligations hereunder for so long as such Indebtedness for borrowed money shall be so secured and (ii) neither Holdings nor the Borrower
will permit any of their Subsidiaries that are not Loan Parties to suffer to exist any Lien on any U.S. Intellectual Property of any of
such Subsidiaries to secure Indebtedness for borrowed money unless such Lien in a Permitted Encumbrance.
SECTION 6.03.
Fundamental Changes. (a) Neither Holdings nor the Borrower will, nor will they permit any of their Restricted Subsidiaries to,
merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve,
divide or otherwise dispose of all or substantially all of its properties and assets to any Person or group of Persons (which, for the
avoidance of doubt, shall not restrict the change in organizational form), except that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing (provided
that such no Default condition shall not apply to clause (ii) below):
(i)
any Restricted Subsidiary may merge into or consolidate with (A) the Borrower so long as the Borrower shall be the continuing or
surviving Person (and continues to be organized under the laws of the same jurisdiction), (B) [reserved] and (C) any other Restricted
Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary and, if any party to such merger or consolidation
is a Loan Party, either (x) the continuing or surviving entity is a Loan Party or (y) the acquisition of such Loan Party by such continuing
or surviving Person is otherwise permitted under 6.04; provided, that, after giving effect to any such activities under this Section
6.03(a)(i), the Loan Parties are in compliance with the Collateral and Guarantee Requirement in Sections 5.12 and 5.13;
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(ii) [reserved]the Co-Borrower Merger may occur;
(iii)
any Restricted Subsidiary that is not the Borrower may liquidate or dissolve if Holdings or the Borrower determines in good faith
that such liquidation or dissolution is in the best interests of the business of the Restricted Group and is not materially disadvantageous
to the Lenders; provided that any such merger or consolidation involving a Person that is not a wholly owned Restricted Subsidiary
immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 6.04;
(iv)
any Restricted Subsidiary may engage in a merger, consolidation, dissolution or liquidation, the purpose
of which is to effect an Investment permitted pursuant to Section 6.04 or a disposition permitted pursuant to Section 6.05; and
(v) so
long as no Event of Default shall have occurred and be continuing, or would result therefrom, Holdings may merge or consolidate with
(or Disposedispose
of all or substantially all of its assets to) any other Person; provided that (A) Holdings shall be the continuing or surviving
Person or (B) if (x) the Person formed by or surviving any such merger or consolidation is not Holdings (y) Holdings
is not the Person into which Holdings has been liquidated or (z) in connection with a Dispositiondisposition
of all or substantially all of Holdings’ assets, the Person that is the transferee of such assets is not Holdings (any such
Person, a “Successor Holdings”), (1) the Successor Holdings shall be an entity organized or existing under the
laws of the United States or any other jurisdiction reasonably consented to by the Administrative Agent, (2) the Successor Holdings
shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a
party pursuant to a supplement, amendment or restatement hereto or thereto in form reasonably satisfactory to the Administrative
Agent and (3) if reasonably requested by the Administrative Agent, the Borrower shall have delivered to the Administrative Agent an
officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement, amendment
or restatement to this Agreement or any Loan Document comply with this Agreement; provided, further, that if the
foregoing are satisfied, the Successor Holdings, will succeed to, and be substituted for, Holdings under this Agreement and the
original Holdings will be released.
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(b)
Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole, will not engage to any material extent in any business
other than businesses of the type to be conducted by Holdings, the Borrower and the Restricted Subsidiaries as described in the Form
10 if as a result thereof the business conducted by Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole, would
be substantially different from the business conducted by Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole,
on the Second Amendment and Restatement Effective Date; provided
that businesses reasonably related, incidental or ancillary thereto to the business conducted by the Borrower and the Restricted
Subsidiaries, taken as a whole, on the Second Amendment and
Restatement Effective Date or reasonable extensions thereof shall be permitted hereunder.
SECTION 6.04. Investments,
Loans, Advances, Guarantees and Acquisitions. Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary
to, make any Investment, except:
(a) Permitted Investments and cash;
(b)
investments constituting the purchase or other acquisition (in one transaction or a series of related transactions) of all or substantially
all of the property and assets or business of any Person or of assets constituting a business unit, a line of business or division of
such Person, or the Equity Interests in a Person that, upon the consummation thereof, will be a Restricted Subsidiary if, after giving
effect thereto on a Pro Forma Basis, the Borrower would be in compliance with Sections 6.12 and 6.13; provided that the aggregate
amount of cash consideration paid in respect of such investments (including in the form of loans or advances made to Restricted Subsidiaries
that are not Loan Parties) by Loan Parties involving the acquisition of Restricted Subsidiaries that do not become Loan Parties shall
not, at the time such investment is made and after giving effect thereto, cause the Non-Guarantor Investment Basket to be exceeded (provided,
that to the extent such Restricted Subsidiaries do become Loan Parties, the aggregate amount outstanding in reliance on this clause (b)
shall be reduced by the amount initially utilized);
(c) [reserved];
(d)
Investments existing on the Second Amendment and Restatement
Effective Date and to the extent having a principal amount in excess of $5,000,000 (or,
with respect to intercompany Investments, $20,000,000) individually set forth on Schedule 6.04 and any modification, replacement,
renewal, reinvestment or extension thereof;
(e)
Investments by Holdings in the Borrower and by Holdings, the Borrower and the Restricted Subsidiaries
in Equity Interests of their respective Restricted Subsidiaries; provided that (i) any such Equity Interests held by a Loan
Party in any other Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement”
and (ii) the making of such Investment by any Loan Party in any Restricted Subsidiary that is not a Loan Party shall not, at the time
such Investment is made and after giving effect thereto, cause the Non-Guarantor Investment Basket to be exceeded, provided that
if any such investment under this subclause (ii) is made for the purpose of making an investment, loan or advance permitted under clause
(u) of this Section, the amount available under this clause (e) shall not be reduced by the amount of any such investment, loan or advance
which reduces the basket under clause (u) of this Section;
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(f) loans
or advances made by Holdings or the Borrower to any Restricted Subsidiary and made by any Restricted Subsidiary to the Borrower or
any other Restricted Subsidiary; provided that (i) any such loans and advances made by a Loan Party shall be evidenced, on
and after the Effective Date, by the Global Intercompany Note or other promissory notes reasonably acceptable to the Administrative
Agent and (ii) the outstanding amount of such loans and advances made by Loan Parties to Restricted Subsidiaries that are not Loan
Parties at the time such loans or advances are made, and after giving effect thereto, shall not cause the Non-Guarantor Investment
Basket to be exceeded, provided that any intercompany loans or advances made by any Loan Party to any Restricted Subsidiary
that is not a Loan Party using the proceeds of intercompany loans or advances received from Restricted Subsidiaries that are not
Loan Parties no more than 120 days prior to making such intercompany loan or advance shall not be taken into account in the
calculation of any restriction or basket set forth in this subclause (ii) (including the Non-Guarantor Investment Basket); provided
further that if any such loan or advance under this subclause (ii) is made for the purpose of making an investment, loan or
advance permitted under clause (u) of this Section, the amount available under this clause (f) shall not be reduced by the amount of
any such investment, loan or advance which reduces the basket under clause (u) of this Section, provided further that any
loan or advance made by any Loan Party to a Restricted Subsidiary that is not a Loan Party, for the purposes of calculating usage
under this subclause (ii) and the Non-Guarantor Investment Basket, shall be reduced dollar-for-dollar by any amounts owed by such
Loan Party to such Restricted Subsidiary that is not a Loan Party;
(g) Guarantees
by Holdings, the Borrower or any Restricted Subsidiary in respect of Indebtedness permitted under Section 6.01 and in respect of other
obligations not otherwise contemplated by this Section 6.04, in each case of Holdings, the Borrower or any Restricted Subsidiary; provided
that any such Guarantees of Indebtedness and such other obligations, in each case of Restricted Subsidiaries that are not Loan
Parties by any Loan Party (other than with respect to Cash Management Financing Facilities) shall not, at
the time any such Guarantee is provided and after giving effect thereto, cause the Non-Guarantor Investment Basket to be exceeded;
(h) loans
or advances to directors, officers, consultants or employees of Holdings, the Borrower or any Restricted Subsidiary made in the ordinary
course of businessOrdinary Course of Business of
Holdings, the Borrower or such Restricted Subsidiary, as applicable, not exceeding $10,000,000 in the aggregate outstanding at any time
(determined without regard to any write-downs or write-offs of such loans or advances);
(i)
payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as
expenses of Holdings, the Borrower or any Restricted Subsidiary for accounting purposes and that are made in the ordinary
course of businessOrdinary Course of Business;
(j) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to
any secured Investment, in each case in the ordinary course of businessOrdinary
Course of Business;
(k) investments
in the form of Hedging Agreements permitted by Section 6.07 (including any Back to Back Arrangements);
(l) investments
of any Person existing at the time such Person becomes a Restricted Subsidiary or consolidates or merges with the Borrower or any
Restricted Subsidiary so long as such investments were not made in contemplation of such Person becoming a Restricted Subsidiary or
of such consolidation or merger;
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(m)
investments resulting from pledges or deposits described in clause (c) or (d) of the definition of the term “Permitted Encumbrance”;
(n)
investments made as a result of the receipt of noncash consideration from a sale, transfer, lease or other disposition of any asset
in compliance with Section 6.05;
(o)
investments that result solely from the receipt by Holdings, the Borrower or any Restricted Subsidiary from any of its Subsidiaries
of a dividend or other Restricted Payment in the form of Equity Interests, evidences of Indebtedness or other securities (but not any
additions thereto made after the date of the receipt thereof);
(p)
receivables or other trade payables owing to the Borrower or a Restricted Subsidiary if created or acquired in the ordinary
course of businessOrdinary Course of Business and
payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary
trade terms as the Borrower or any Restricted Subsidiary deems reasonable under the circumstances;
(q)
mergers and consolidations permitted under Section 6.03 that do not involve any Person other than Holdings, the Borrower and Restricted
Subsidiaries that are wholly owned Restricted Subsidiaries;
(r)
Investments in the form of letters of credit, bank guarantees, performance bonds or similar instruments
or other creditor support or reimbursement obligations made in the ordinary course of businessOrdinary
Course of Business by Holdings or the Borrower on behalf of any Restricted Subsidiary and made by
any Restricted Subsidiary on behalf of the Borrower or any other Restricted Subsidiary; provided that at the time such letters
of credit, bank guarantees, performance bonds or similar instruments or other creditor support or reimbursement obligations are made by
Loan Parties on behalf of Restricted Subsidiaries that are not Loan Parties pursuant to this clause (r), and after giving effect thereto,
such obligations shall not cause the Non-Guarantor Investment Basket to be exceeded;
(s)
Guarantees by Holdings, the Borrower or any Restricted Subsidiary of leases (other than Capitalized Leases) or of other obligations
that do not constitute Indebtedness, in each case entered into in the ordinary course of businessOrdinary
Course of Business;
(t)
Investments, so long as, after giving effect thereto, the Consolidated Total Leverage Ratio does not exceed 1.75:1.00;
(u)
other Investments by the Borrower or any Restricted Subsidiary (and loans and advances by Holdings) in an aggregate amount, as
valued at cost at the time each such Investment is made and including all related commitments for future Investments (and the principal
amount of any Indebtedness that is assumed or otherwise incurred in connection with such Investment), outstanding under this clause (u)
at any time in an aggregate amount not exceeding the sum of (i) the greater of (x) $300,000,000 and (y) 75% of LTM Consolidated EBITDA
plus (ii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Available Amount
at such time in the aggregate for all such investments made or committed to be made from and after the Effective Date plus an amount
equal to any returns of capital or sale proceeds actually received in cash in respect of any such Investments (which amount shall not
exceed the amount of such Investment valued at cost at the time such investment was made);
141
(v)
Investments consisting of (i) extensions of trade credit and accommodation guarantees in the ordinary
course of businessOrdinary Course of Business and
(ii) loans and advances to customers; provided that the aggregate principal amount of such loans and advances outstanding under this clause
(ii) at any time shall not exceed $10,000,000;
(w) [reserved];
(w)
Investments in connection with (i) ADI Spin-Off Date Actions or (ii) ADI Spin-Off Reorganization Actions; provided that,
in the case of this clause (ii), with respect to any such Investments occurring on or after the Second Amendment and Restatement Effective
Date, such Investment does not have a material impairment on the Guarantees in favor of the Lenders or the security interests of the
Lenders in the Collateral; provided further that, in the case of clauses (i) and (ii), after giving effect thereto, the Consolidated
Total Leverage Ratio, after giving pro forma effect to the ADI Spin-Off Transaction and any other transactions (including any prepayment
of Indebtedness) in connection therewith, does not exceed 4.00:1.00 (this clause (w), the “ADI Spin-Off Investment Basket”);
(x)
Investments in the ordinary course of businessOrdinary
Course of Business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial
Code Article 4 customary trade arrangements with customers in the ordinary course of businessOrdinary
Course of Business;
(y)
Investments (A) for utilities, security deposits, leases and similar prepaid expenses incurred in the ordinary
course of businessOrdinary Course of Business and
(B) in the form of trade accounts created, or prepaid expenses accrued, in the ordinary course of businessOrdinary
Course of Business;
(z)
non-cash Investments in connection with tax planning and reorganization activities; provided that, after giving effect to any such
activities, the security interests of the Lenders in the Collateral, taken as a whole, would not be materially impaired;
(aa) customary
Investments in connection with Permitted Receivables Facilities;
(bb) Investments in joint
ventures and Unrestricted Subsidiaries; provided that at the time of any such Investment on a Pro Forma Basis, the aggregate amount at
any time outstanding of all such Investments made in reliance on this clause (bb) shall not exceed the greater of (x) $50,000,000 and
(y) 12% of LTM Consolidated EBITDA;
(cc) Investments in the
form of loans or advances made to distributors and suppliers in the ordinary course of businessOrdinary
Course of Business; and
(dd) to the extent
they constitute Investments, guaranties in the ordinary course of businessOrdinary
Course of Business of the obligations of suppliers, customers, franchisees, lessors and licensees of the Borrower and any Restricted
Subsidiary.
For purposes of this
Section 6.04, if any Investment (or a portion thereof) would be permitted pursuant to one or more of the provisions described above
and/or one or more of the exceptions contained in this Section 6.04 (other than ratio-based baskets, if any), Holdings, the Borrower
and the Restricted Subsidiaries may divide and classify such Investment (or a portion thereof) in any manner that complies with this
covenant and may later divide and reclassify any such Investment so long as the Investment (as so divided and/or reclassified) would
be permitted to be made in reliance on the applicable exception as of the date of such reclassification.
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SECTION 6.05. Asset
Sales. Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, sell, transfer, lease or otherwise
dispose of any asset (other than assets sold, transferred, leased or otherwise disposed of in a single transaction or a series of related
transactions with a fair market value of $25,000,000 or less), including any Equity Interest owned by it, nor will Holdings or the Borrower
permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’
qualifying shares and other than issuing Equity Interests to the Borrower or another Restricted Subsidiary), except:
(a)
sales, transfers, leases and other dispositions of (i) inventory, (ii) used, obsolete, damaged, worn out or surplus equipment,
(iii) property no longer used or, in the reasonable business judgment of Holdings, the Borrower or a Restricted Subsidiary, no longer
useful in the conduct of the business of the Borrower or the Restricted Subsidiary (including Intellectual Property), (iv) immaterial
assets and (v) cash and Permitted Investments, in each case in the ordinary course of businessOrdinary
Course of Business;
(b)
sales, transfers, leases and other dispositions to the Borrower or a Restricted Subsidiary; provided that any such sales,
transfers, leases or other dispositions involving a Restricted Subsidiary that is not a Loan Party shall, to the extent applicable, be
made in compliance with Sections 6.04 and 6.09;
(c)
sales, transfers and other dispositions or forgiveness of accounts receivable in connection with the compromise, settlement or
collection thereof not as part of any accounts receivables financing transaction (including sales to factors and other third parties);
(d)
(i) sales, transfers, leases and other dispositions of assets to the extent that such assets constitute an investment permitted
by clause (j), (l) or (n) of Section 6.04 or another asset received as consideration for the disposition of any asset permitted by this
Section (in each case, other than Equity Interests in a Restricted Subsidiary, unless all Equity Interests in such Restricted Subsidiary
(other than directors’ qualifying shares) are sold) and (ii) sales, transfers, and other dispositions of the Equity Interests of
a Restricted Subsidiary by the Borrower or a Restricted Subsidiary to the extent such sale, transfer or other disposition would be permissible
as an Investment in a Restricted Subsidiary permitted by Section 6.04(e) or (u);
(e)
leases or subleases entered into in the ordinary course of businessOrdinary
Course of Business, to the extent that they do not materially interfere with the business of Holdings, the Borrower or any Restricted
Subsidiary;
(f)
non-exclusive licenses or sublicenses of IP Rights granted in the ordinary
course of businessOrdinary Course of Business or
other licenses or sublicenses of IP Rights granted in the ordinary course of businessOrdinary
Course of Business that do not materially interfere with the business of Holdings, the Borrower or
any Restricted Subsidiary;
(g)
dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation
or similar proceeding of, and transfers of property arising from foreclosure or similar action with regard
to, any asset of Holdings, the Borrower or any Restricted Subsidiary;
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(h)
dispositions of assets to the extent that (i) such assets are exchanged for credit against the purchase price of similar replacement
assets or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement assets;
(i) dispositions permitted by Section 6.08;
(j) dispositions set forth on Schedule 6.05;
(k)
sales, transfers, leases and other dispositions of assets that are not permitted by any other clause of this Section; provided
that no Event of Default has occurred and is continuing or would result therefrom;
(l)
sales, transfers or other dispositions of accounts receivable in connection with Permitted Receivables Facilities;
(m)
sales, transfers or other dispositions of any assets (including Equity Interests) (A) acquired in connection with any acquisition
or other investment permitted under Section 6.04, which assets are not used or useful to the core or principal business of the Borrower
and the Restricted Subsidiaries and/or (B) made to obtain the approval of any applicable antitrust authority in connection with an acquisition
permitted under Section 6.04;
(n)
sales, transfers or other dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary
buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; and
(o)
sales, transfers or other dispositions pursuant to any sale and leaseback transactions permitted under Section 6.06(b); and
(p)
sales, transfers or other dispositions in connection with (i) ADI Spin-Off Date Actions or (ii) ADI Spin-Off Reorganization Actions;
provided that, in the case of this clause (ii), with respect to any such sale, transfer or other disposition occurring on or after
the Second Amendment and Restatement Effective Date, such sale, transfer or other disposition does not have a material impairment on
the Guarantees in favor of the Lenders or the security interests of the Lenders in the Collateral; provided further that, in the
case of clauses (i) and (ii), after giving effect thereto, the Consolidated Total Leverage Ratio, after giving pro forma effect to the
ADI Spin-Off Transaction and any other transactions (including any prepayment of Indebtedness) in connection therewith, does not exceed
4.00:1.00 (this clause (p), the “ADI Spin-Off Dispositions Basket”);
provided that all sales,
transfers, leases and other dispositions permitted hereby (other than those permitted by clauses (a)(iii), (a)(iv) and (b)) for a purchase
price in excess of $25,000,000 shall be made for fair value (as determined in good faith by the Borrower), and at least 75% of the consideration
from all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by clause (b), (d), (g) or (h))
since the Second Amendment and Restatement Effective Date, on a cumulative
basis, is in the form of cash or Permitted Investments; provided further that (i) any consideration in the form of Permitted Investments
that are disposed of for cash consideration within 30 Business Days after such sale, transfer or other disposition shall be deemed to
be cash consideration in an amount equal to the amount of such cash consideration for purposes of this proviso, (ii) any liabilities (as
shown on the Borrower’s or such Restricted Subsidiary’s most recent
balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that
are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable
sale, transfer, lease or other disposition and for which the Borrower and all the Restricted Subsidiaries shall have been validly released
by all applicable creditors in writing shall be deemed to be cash consideration in an amount equal to the liabilities so assumed and (iii)
any Designated Non-Cash Consideration received by the Borrower or such Subsidiary in respect of such sale, transfer, lease or other disposition
having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause
(iii) that is at that time outstanding, not in excess of $45,000,000 at the time of the receipt of such Designated Non-Cash Consideration,
with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect
to subsequent changes in value, shall be deemed to be cash consideration.
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SECTION 6.06. Sale
and Leaseback Transactions. Neither the Borrower will, nor will Holdings, permit any Restricted Subsidiary to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or personal, 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 sold or transferred, except for:
(a)
any such sale of any fixed or capital assets by Holdings, the Borrower or any Restricted Subsidiary that is made for cash consideration
in an amount not less than the fair value of such fixed or capital asset and is consummated within 270 days after the Borrower or such
Restricted Subsidiary acquires or completes the construction of such fixed or capital asset; and
(b)
sale and leaseback transactions consummated by Holdings, the Borrower or any Restricted Subsidiary in an aggregate amount not to
exceed the greater of (x) $150,000,000 and (y) 37% of LTM Consolidated EBITDA for all such sale and leaseback transactions, provided
that, each sale and leaseback transaction is (x) undertaken on arm’s length commercial terms and (y) no Event of Default has occurred
and is continuing or would result therefrom;
provided that, in each case
of clauses (a) and (b) above, if such sale and leaseback results in a Capital Lease Obligation, such Capital Lease Obligation is permitted
by Section 6.01(a)(vi) and any Lien made the subject of such Capital Lease Obligation is permitted by Section 6.02(a)(v).
SECTION 6.07. Hedging
Agreements. Neither Holdings nor the Borrower shall, nor shall they permit any Restricted Subsidiary to, enter into any Hedging Agreement
other than Hedging Agreements (including any Back to Back Arrangements) entered into in the ordinary
course of businessOrdinary Course of Business and
not for speculative purposes.
SECTION 6.08. Restricted
Payments; Certain Payments of Junior Indebtedness. (a) Neither
Holdings nor Borrower will, nor will they permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(i)
[reserved];
(i)
Restricted Payments made in connection with (i) ADI Spin-Off Date Actions or (ii) ADI Spin-Off Reorganization Actions; provided
that, in the case of this clause (ii), with
respect to any Restricted Payment made on or after
the Second Amendment and Restatement Effective Date, such Restricted Payment does not have a material impairment on the Guarantees in
favor of the Lenders or the security interests of the Lenders in the Collateral; provided further that, in the case of clauses
(i) and (ii), after giving effect thereto, the Consolidated Total Leverage Ratio, after giving pro forma effect to the ADI Spin-Off Transaction
and any other transactions (including any prepayment of Indebtedness) in connection therewith, does not exceed 4.00:1.00 (this clause
(i), the “ADI Spin-Off RP Basket”);
(ii)
The Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions with respect to its Equity
Interests, or make other Restricted Payments in respect of its Equity Interests, in each case ratably to the holders of such Equity Interests;
(iii) [reserved];
(iv)
Holdings may declare and pay dividends with respect to its Equity Interests payable solely in shares of Qualified Equity Interests
or Disqualified Equity Interests permitted hereunder;
(v)
Holdings may make Restricted Payments, not exceeding the greater of (x) $35,000,000 and (y) 8.75% of LTM Consolidated EBITDA (with
unused amounts being carried over to the succeeding fiscal years, subject to an aggregate cap of up to $50,000,000 in any fiscal year
under this clause (v)) during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans approved by
Holdings’ board of directors for directors, officers, consultants or employees of Holdings, the Borrower and the Restricted Subsidiaries;
(vi)
Holdings may declare and pay dividends with respect to its Equity Interests in an aggregate amount per fiscal year of Holdings
not to exceed 6% of the Market Capitalization as of the close of business on the trading day immediately prior to the date such Restricted
Payment is declared;
(vii)
Holdings may make additional Restricted Payments; provided that the Consolidated Total Leverage Ratio (after giving pro
forma effect to such Restricted Payment) for the four consecutive fiscal quarters ending immediately preceding the making of such Restricted
Payment for which consolidated financial statements have most recently been,
or were required to be, delivered to the Administrative Agent pursuant to Section 5.01(a) or 5.01(b) shall be less than or
equal to the 0.975 to 1.00; provided that no Event of Default has occurred or is continuing or would result therefrom;
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(viii) Holdings
may make cash payments in lieu of the issuance of fractional shares representing insignificant interests in Holdings in connection with
the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests in Holdings;
(ix) Holdings
may repurchase Equity Interests upon the exercise of stock options if such Equity Interests represent a portion of the exercise price
of such stock options (and related redemption or cancellation of shares for payment of taxes or other amounts relating to the exercise
under such stock option or other benefit plans);
(x) concurrently
with any issuance of Qualified Equity Interests, Holdings may redeem, purchase or retire any Equity Interests of Holdings using the proceeds
of, or convert or exchange any Equity Interests of Holdings for, such Qualified Equity Interests;
(xi) Holdings’
Subsidiaries may pay dividends to Holdings concurrently with Holdings’ payment of dividends pursuant to Section 6.08(a)(xii);
(xii) Holdings
may declare and make Restricted Payments in an aggregate amount not to exceed, at the time such Restricted Payments are made and after
giving effect thereto, the sum of (A) the greater of (x) $150,000,000 and (y) 37% LTM Consolidated EBITDA plus (B) the Available
Amount at such time; provided that Holdings may only make Restricted Payments under this clause (xii) if (x) no Event of Default
has occurred and is continuing (or would result therefrom) and (y) after giving effect thereto on a Pro Forma Basis, Holdings would be
in compliance with Sections 6.12 and 6.13;
(xiii) for
any taxable period for which the Borrower and/or any Subsidiaries of Holdings are members of a consolidated, combined or similar income
tax group for U.S. federal and/or applicable state, local or non-U.S. income or corporation Tax purposes of which a direct or indirect
parent of the Borrower is the common parent (a “Tax Group”), Restricted Payments may be made in an amount not in excess
of the U.S. federal, state, local or non-U.S. income Taxes that the Borrower and/or applicable Subsidiaries of Holdings would have paid
had the Borrower and/or such Subsidiaries of Holdings been a stand-alone taxpayer (or a stand-alone group); provided that Restricted
Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted
Subsidiary to Holdings, the Borrower or any of its Subsidiaries for such purpose;
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(xiv)
(i) any non-cash repurchases or withholdings of Equity Interests in connection with the exercise of stock options, warrants or
similar rights if such Equity Interests represent a portion of the exercise of, or withholding obligations with respect to, such options,
warrants or similar rights (for the avoidance of doubt, it being understood that any required withholding or similar tax related thereto
may be paid by Holdings, the Borrower or any Restricted Subsidiary in cash), and (ii) loans or advances to officers, directors and employees
of Holdings, the Borrower or any Restricted Subsidiary in connection with such Person’s purchase of Equity Interests of Holdings,
provided that no cash is actually advanced pursuant to this clause (ii) other than to pay taxes due in connection with such purchase,
unless immediately repaid; and
(xv)
Holdings may make payments pursuant to and required under the Tax Matters AgreementAgreements.
(b)
Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, prepay, redeem, purchase or otherwise
satisfy any Indebtedness that is subordinated in right of payment to the Obligations (excluding, for the avoidance of doubt, any subordinated
obligations owing to Holdings or any Restricted Subsidiary) (collectively, “Restricted Debt Payments”), except for:
(i)
regularly scheduled interest and principal payments as and when due in respect of any such Indebtedness, other than payments in
respect of such Indebtedness prohibited by the subordination provisions thereof; and
(ii)
refinancings of Indebtedness with the proceeds of other Indebtedness permitted under Section 6.01.;
and
(iii)
Restricted Debt Payments made in connection with (i) ADI Spin-Off Date Actions or (ii) ADI Spin-Off Reorganization Actions; provided
that, in the case of this clause (ii), with respect to any
Restricted Debt Payment made on or after the Second Amendment and
Restatement Effective Date, such Restricted Debt Payment does not have a material impairment on the Guarantees in favor of the Lenders
or the security interests of the Lenders in the Collateral; provided further that, in the case of clauses (i) and (ii), after
giving effect thereto, the Consolidated Total Leverage Ratio, after giving pro forma effect to the ADI Spin-Off Transaction and any other
transactions (including any prepayment of Indebtedness) in connection therewith, does not exceed 4.00:1.00 (this clause (iii), the “ADI
Spin-Off RDP Basket”).
147
For purposes of this Section 6.08,
if any Restricted Payment (or a portion thereof) would be permitted pursuant to one or more provisions described above and/or one or more
of the exceptions contained in this Section 6.08, Holdings, the Borrower and the Restricted Subsidiaries may divide and classify such
Restricted Payment (or a portion thereof) in any manner that complies with this covenant and may later divide and reclassify (other
than with respect to ratio-based baskets, if any) any such Restricted Payment so long as the Restricted Payment (as so divided and/or
reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification.
SECTION
6.09. Transactions with Affiliates. Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to,
sell, lease or otherwise transfer any assets to, or purchase, lease or otherwise acquire any assets from, or otherwise engage in any
other transactions involving aggregate consideration in excess of $25,000,000 with, any of its Affiliates, except (i) transactions that
are at prices and on terms and conditions not less favorable to Holdings, the Borrower or such Restricted Subsidiary than could be obtained
on an arm’s-length basis from unrelated third parties, (ii) transactions between or among the Loan Parties not involving any other
Affiliate, (iii) advances, equity issuances, repurchases, retirements or other acquisitions or retirements of Equity Interests and other
Restricted Payments permitted under Section 6.08 and investments, loans and advances to Restricted Subsidiaries permitted under Section
6.04 and any other transaction involving the Borrower and the Restricted Subsidiaries permitted under Section 6.03 to the extent such
transaction is between Holdings, the Borrower and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries
and Section 6.05 (to the extent such transaction is not required to be for fair value thereunder), (iv) the payment of reasonable fees
to directors of Holdings, the Borrower or any Restricted Subsidiary who are not employees of Holdings, the Borrower or any Restricted
Subsidiary, and compensation and employee benefit arrangements paid to, and indemnities provided for the benefit of, directors, officers,
consultants or employees of Holdings, the Borrower or the Restricted Subsidiaries in the ordinary course
of businessOrdinary Course of Business, (v) any issuances
of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements,
stock options and stock ownership plans approved by the Borrower’s board of directors, (vi) employment and severance arrangements
entered into in the ordinary course of businessOrdinary
Course of Business between Holdings, the Borrower or any Restricted Subsidiary and any employee thereof and approved by the Borrower’s
or Holdings’ board of directors, (vii) payments made to other Restricted Subsidiaries arising from or in connection with any customary
tax consolidation and grouping arrangements and, (viii)
the IRA Termination. and
(ix) transactions in connection (i) ADI Spin-Off Date Actions or (ii) ADI Spin-Off Reorganization Actions not otherwise permitted hereunder;
provided that, in the case of this clause (ii), with respect to any transaction effected on or after the Second Amendment and
Restatement Effective Date, such transaction does not have a material impairment on the Guarantees in favor of the Lenders or the security
interests of the Lenders in the Collateral; provided further that, in the case of clauses (i) and (ii), after giving effect thereto,
the Consolidated Total Leverage Ratio, after giving pro forma effect to the ADI Spin-Off Transaction and any other transactions (including
any prepayment of Indebtedness) in connection therewith, does not exceed 4.00:1.00 (this clause (ix), the “ADI Spin-Off Transactions
with Affiliates Basket”).
148
SECTION
6.10. Restrictive Agreements. Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, directly
or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition
upon (a) the ability of Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of
its assets that are Collateral or required to be Collateral to secure the Obligations or (b) the ability of any Restricted Subsidiary
to pay dividends or other distributions with respect to any of its Equity Interests, to make or repay loans or advances to the Borrower
or any Restricted Subsidiary, to Guarantee Indebtedness of the Borrower or any Restricted Subsidiary, to transfer any of its properties
or assets to the Borrower or any Restricted Subsidiary or to grant Liens on its assets (including Equity Interests) to the Administrative
Agent; provided that (i) the foregoing shall not apply to (A) restrictions and conditions imposed by law or by this Agreement,
any Spin-Off Document, any other Loan Document, any Incremental Facility Amendment, any Refinancing Facility Agreement, any document
governing any Refinancing Term Loan Indebtedness, Refinancing Revolving Commitments or Refinancing Indebtedness or,
any document governing Alternative Incremental Facility Debt or any
document entered into in connection with the ADI Spin-Off Transaction, (B) restrictions and conditions imposed by the Senior Notes
Documents as in effect on the Second Amendment and Restatement Effective
Date or any agreement or document evidencing Refinancing Term Loan Indebtedness in respect of the Senior Notes Documents permitted under
clause (ii) of Section 6.01(a); provided that the restrictions and conditions contained in any such agreement or document taken
as a whole are not materially less favorable to the Lenders than the restrictions and conditions imposed by the Senior Notes Documents,
(C) in the case of any Restricted Subsidiary that is not a wholly owned Restricted Subsidiary, restrictions and conditions imposed by
its organizational documents or any related joint venture or similar agreements; provided that such restrictions and conditions
apply only to such Restricted Subsidiary and to the Equity Interests of such Restricted Subsidiary, (D) customary restrictions and conditions
contained in agreements relating to the sale of a Restricted Subsidiary or any assets of Holdings, the Borrower or any Restricted Subsidiary,
in each case pending such sale; provided that such restrictions and conditions apply only to such Restricted Subsidiary or the
assets that are to be sold and, in each case, such sale is permitted hereunder, (E) restrictions and conditions existing on the Second
Amendment and Restatement Effective Date and identified on Schedule 6.10 (and any extension or renewal of, or any amendment, modification
or replacement of the documents set forth on such schedule that do not expand the scope of, any such restriction or condition in any
material respect), (F) restrictions and conditions imposed by any agreement relating to Indebtedness of any Restricted Subsidiary in
existence at the time such Restricted Subsidiary became a Restricted Subsidiary and otherwise permitted by clause (vii) of Section 6.01(a)
or to any restrictions in any Indebtedness of a non-Loan Party Restricted Subsidiary permitted by clause (viii) or clause (xix) of Section
6.01(a), in each case if such restrictions and conditions apply only to such Restricted Subsidiary and its subsidiaries, (G) [reserved],
(H) customary prohibitions, restrictions and conditions contained in agreements relating to a Permitted Receivables Facility, (I) any
encumbrance or restriction under documentation governing other Indebtedness of Holdings, the Borrower and any Restricted Subsidiaries
permitted to be incurred pursuant to Section 6.01, provided that such encumbrances or restrictions will not materially impair (1) the
Borrower’s ability to make principal and interest payments hereunder or (2) the ability of the Loan Party to provide any Lien upon
any of its assets that are Collateral or required to be Collateral, (J) customary provisions in leases, licenses, sublicenses
and other contracts (including licenses and sublicenses of Intellectual Property) restricting the assignment thereof, (K) restrictions
imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent such restriction applies only to
the property securing such Indebtedness, (L) restrictions on cash (or Permitted Investments) or other deposits imposed by agreements
entered into in the ordinary course of businessOrdinary
Course of Business (or other restrictions on cash or deposits constituting Permitted Encumbrances), (M) customary restrictions
contained in leases, subleases, licenses, sublicenses or asset sale agreements otherwise permitted hereby so long as such restrictions
relate only to the assets subject thereto, (N) customary provisions restricting subletting or assignment of any lease governing a leasehold
interest of the Borrower or any Restricted Subsidiary and,
(O) customary net worth provisions contained in real property leases entered into by Subsidiaries, so long as the Borrower has
determined in good faith that such net worth provisions would not reasonably be expected to impair the ability of the Borrower and its
Subsidiaries to meet their ongoing obligations and (P) the ADI Spin-Off
Credit Agreement; and (ii) clause (a) of the foregoing shall not apply to (A) restrictions and conditions imposed by any agreement
relating to secured Indebtedness permitted by clause (vi) of Section 6.01(a) if such restrictions and conditions apply only to the assets
securing such Indebtedness and (B) customary provisions in leases and other agreements restricting the assignment thereof.
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SECTION 6.11. Amendment
of Material Documents, Etc. Holdings will not, nor will Holdings permit any of its Restricted Subsidiaries
to, amend, modify or waive, (i) its certificate of incorporation, bylaws or other organizational documents, (ii) any of the Senior Notes
Documents or (iii) any of the Spin-Off Documents, in each case if the effect of such amendment, modification or waiver would be materially
adverse to the Lenders without the consent of the Required Lenders.
SECTION 6.12.
Consolidated Interest Coverage Ratio. Holdings will not permit the Consolidated Interest Coverage Ratio as of the end of any fiscal
quarter of Holdings ending on or after the Second Amendment and Restatement
Effective Date, in each case for any period of four consecutive fiscal quarters of Holdings ending on the last day of such fiscal quarter,
to be less than 2.752.50
to 1.00.
SECTION
6.13. Consolidated Total Leverage Ratio. Holdings will not permit the Consolidated Total Leverage Ratio for any period of four
consecutive fiscal quarters of Holdings ending on the last day of any fiscal quarter
of Holdings (each such date, a “CTLR Testing Date”) to exceed (xi)
3.50 to 1.00 or (y) solely with respect to eachfor
any CTLR Testing Date of September 30, 2025 and December 31, 2025, 4.00 to 1.00prior
to the fiscal quarter in which the ADI Spin-Off Transaction is consummated, 3.50 to 1.00, (ii) 4.75:1.00 for the first two CTLR Testing
Dates ending after the date on which the ADI Spin-Off Transaction is consummated, (iii) 4.50:1.00 for the third and fourth CTLR Testing
Dates ending after the date on which the ADI Spin-Off Transaction is consummated, (iv) 4.25:1.00 for the fifth and sixth CTLR Testing
Dates ending after the date on which the ADI Spin-Off Transaction is consummated and (v) 4.00:1.00 thereafter; provided,
that, with respect to any Material Acquisition consummated on or after March 31, 2026,
at the election of the Borrower, the maximum permitted Consolidated Total Leverage Ratio pursuant to the foregoing clauses (xiv)
and (yv) shall be
increased by 0.50xto 4.50:1.00
for the first four CTLR Testing Dates following the consummation of such Material Acquisition (such period for the increased maximum
permitted Consolidated Total Leverage Ratio, the “Adjusted CTLR Period”); provided, however, that (i) there
shall be no more than two (2) Adjusted CTLR Periods following the Sixth Amendment Effective Date prior to the Revolving Maturity Date
and (ii) following the first (if any) Adjusted CTLR Period, at least one CTLR Testing Date shall occur prior to the commencement of the
second Adjusted CTLR Period.
SECTION
6.14. Changes in Fiscal Periods. Holdings will not make any change in fiscal year; provided, however, that Holdings may,
upon written notice to the Administrative Agent, change its fiscal year to any other fiscal year reasonably acceptable to the Administrative
Agent, in which case Holdings and the Administrative Agent will, and are hereby authorized by the Lenders, to make any adjustments to
this Agreement that are necessary to reflect such change in fiscal year.
150
Notwithstanding
anything to the contrary set forth in this Agreement or any other Loan Document but without limitation of the condition in Section 56(d)
of the Second Amendment and Restatement Agreement, no provision of
this Agreement or any other Loan Document shall prevent or restrict the consummation of the TransactionsADI
Spin-Off Transaction, nor shall the TransactionsADI
Spin-Off Transaction give rise to any Default, or constitute the utilization of any basket,
under this Agreement (including this Article VI) or any other Loan Document.
ARTICLE VII
Events of Default
SECTION 7.01. Events
of Default. If any of the following events (each such event, an “Event of Default”) shall occur:
(a)
the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b)
the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause
(a) of this Section 7.01) payable under this Agreement or any other Loan Document, when and as the same shall become due and payable,
and such failure shall continue unremedied for a period of five Business Days;
(c)
any representation or warranty made or deemed made by or on behalf of Holdings, the Borrower or any Restricted Subsidiary in this
Agreement or any other Loan Document, or in any report, certificate or financial statement furnished pursuant to or in connection with
this Agreement or any other Loan Document, shall prove to have been incorrect in any material respect when made or deemed made and, to
the extent capable of being cured, such incorrect representation or warranty shall remain incorrect for a period of 30 days following
written notice thereof from the Administrative Agent to the Borrower;
(d)
Holdings or the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), 5.04
(with respect to the existence of Holdings or the Borrower), 5.11(a) or Article VI; provided,
that a Default by Holdings or the Borrower under Section 6.12 or Section 6.13 (each, a “Financial Covenant Event of Default”)
shall not constitute an Event of Default with respect to the Term Commitments, the Term Loans or any Incremental Term Facility unless
and until the Required Revolving Lenders shall have terminated their Revolving Commitments and declared all amounts outstanding under
the Revolving Loans to be due and payable;
(e)
any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other
Loan Document (other than those specified in clause (a), (b) or (d) of this Section), and such failure shall continue unremedied for
a period of 30 days after written notice thereof from the Administrative Agent or any Lender to the Borrower;
151
(f)
Holdings, the Borrower or any Restricted Subsidiary shall fail to make any payment (whether of principal, interest, premium or
otherwise and regardless of amount) in respect of any Material Indebtedness when and as the same shall become due and payable (after giving
effect to any applicable grace period under the documentation representing such Material Indebtedness);
(g)
any event or condition occurs that results in any Material Indebtedness becoming due or being terminated or required to be prepaid,
repurchased, redeemed or defeased prior to its scheduled maturity or that enables or permits (with all applicable grace periods in respect
of such event or condition under the documentation representing such Material Indebtedness having expired); the holder or holders of any
Material Indebtedness or any trustee or agent on its or their behalf, or, in the case of any Hedging Agreement, the applicable counterparty,
to cause any Material Indebtedness to become due, or to terminate or require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) any secured Indebtedness that becomes due as a result
of the voluntary sale, transfer or other disposition (including as a result of a casualty or condemnation event) of the assets securing
such Indebtedness (to the extent such sale, transfer or other disposition is not prohibited under this Agreement), or (y) any Indebtedness
that becomes due as a result of a voluntary refinancing thereof permitted under Section 6.01 or (z) termination events or similar events
occurring under any Hedging Agreement (other than a termination event or similar event as to which Holdings or any of its Restricted Subsidiaries
is the defaulting party) that constitutes Material Indebtedness (it being understood that paragraph (f) of this Section 7.01 will apply
to any failure to make any payment required as a result of such termination or similar event);
(h)
except as otherwise provided in Section 7.02, (i) an involuntary proceeding shall be commenced or an involuntary petition shall
be filed seeking (A) liquidation, reorganization or other relief in respect of Holdings, the Borrower or any Restricted Subsidiary or
its debts, or of a substantial part of its assets, under any Federal, State or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect or (B) the appointment of a receiver, trustee, custodian, sequestrator, conservator, liquidator, administrative
receiver, administrator, receiver and manager or similar official for Holdings, the Borrower or any Restricted Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered or (ii) Holdings, the Borrower or any Loan Party that is
a Material Subsidiary (A) admits publicly its inability to pay its debts as they fall due or (B) has a moratorium declared in relation
to any of its Indebtedness;
(i) except
as otherwise provided in Section 7.02, Holdings, the Borrower or any Restricted Subsidiary shall (i) voluntarily commence any proceeding
or file any petition seeking liquidation (other than any liquidation permitted under Section 6.03(a)(iv)), reorganization or other relief
under any Federal, State or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Section,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings,
the Borrower or any Restricted Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding or (v) make a general assignment for the benefit of creditors;
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(j) [reserved];
(k)
one or more judgments for the payment of money in an aggregate amount in excess of $70,000,000 (other than any such judgment covered
by insurance (other than under a self-insurance program) to the extent a claim therefor has been made in writing and liability therefor
has not been denied by the insurer) shall be rendered against Holdings, the Borrower, any Restricted Subsidiary or any combination thereof
and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to attach or levy upon any assets of Holdings, the Borrower or any Restricted
Subsidiary that are material to the business and operations of Holdings, the Borrower or any Restricted Subsidiary, taken as a whole,
to enforce any such judgment;
(l)
an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred and are continuing
and remain uncured, would reasonably be expected to result in a Material Adverse Effect;
(m)
any Lien purported to be created under any Security Document shall cease to be, or shall be asserted by any Loan Party not to
be, a valid and perfected Lien on any material portion of the Collateral, with the priority required by the applicable Security Document,
except as a result of (i) permission under any Loan Document (including the sale or other disposition of the applicable Collateral in
a transaction permitted under the Loan Documents), (ii) the release thereof as provided in Section 9.14, (iii) the Administrative Agent’s
failure to (A) maintain possession of any stock certificate, promissory note or other instrument delivered to it under any Security Document
or (B) file Uniform Commercial Code continuation statements (or equivalent statements in any other relevant jurisdiction) or (iv) as
to Collateral consisting of Mortgaged Property, to the extent that such losses are covered by a lender’s title insurance policy
and such insurer has not denied coverage;
(n)
any material Security Document shall cease to be, or shall be asserted by any Loan Party not to be a legal, valid and binding obligation
of any Loan Party party thereto, except as expressly permitted hereunder or thereunder or as a result of the release thereof as provided
in the applicable Loan Document or Section 9.14;
(o)
any Guarantee purported to be created under any Loan Document shall cease to be or shall be asserted by any Loan Party not to be,
in full force and effect, except as in accordance with the terms of the Loan Documents (including a result of the release thereof as provided
in the applicable Loan Document or Section 9.14); or
(p) a Change in Control shall occur;
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then, and in every such
event (other than an event with respect to Holdings or the Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event (including any Event of Default arising by virtue of the termination and declaration
contemplated by the proviso to Section 7.01(d)), the Administrative Agent may, and at the request of the Required Lenders shall (and,
if a Financial Covenant Event of Default occurs and is continuing, the Administrative Agent may, and at the request of the Required Revolving
Lenders shall, and in such case, without limiting the proviso to Section 7.01(d), only with respect to the Revolving Commitments, the
Revolving Loans, and any Letters of Credit and LC Exposure), by notice to the Borrower, take any or all of the following actions, at
the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, (ii) declare the
Loans then outstanding to be due and payable in whole (or in part (but ratably as among the Classes of Loans and the Loans of each Class
at such time outstanding), in which case any principal not so declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower hereunder, shall become due and payable immediately and (iii) require the deposit of cash
collateral in respect of LC Exposure as provided in Section 2.05(i), in each case, without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by Holdings and the Borrower; and in the case of any event with respect to Holdings or the
Borrower described in clause (h) or (i) of this Section, the Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower hereunder, shall immediately
and automatically become due and payable and the deposit of such cash collateral in respect of LC Exposure shall immediately and automatically
become due, in each case, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by Holdings
and the Borrower.
SECTION
7.02. Exclusion of Certain Subsidiaries. Solely for the purposes of determining whether a Default has occurred under clause (h)
or (i) of Section 7.01, any reference in any such paragraph to any Restricted Subsidiary shall be deemed not to include any Restricted
Subsidiary affected by any event or circumstance referred to in such paragraph that is not a Material Subsidiary; provided that
(i) if it is necessary to exclude more than one Restricted Subsidiary from clause (h) or (i) of Section 7.01 pursuant to this paragraph
in order to avoid a Default, the aggregate consolidated assets of all such excluded Restricted Subsidiaries as of suchthe
last day of the four most recently ended consecutive fiscal quarters for
which consolidated financial statements have most recently been, or were required to be, delivered to the Administrative Agent pursuant
to Section 5.01(a) or 5.01(b) may not exceed 7.5% of the Consolidated Total Assets of Holdings,
the Borrower and the Restricted Subsidiaries and the aggregate consolidated revenues of all such excluded Restricted Subsidiaries for
such four fiscal quarter period may not exceed 7.5% of the consolidated revenues of Holdings, the Borrower and the Restricted Subsidiaries
and (ii) in no circumstance shall the Borrower be excluded from clause (h) of (i) of Section 7.01.
ARTICLE VIII
The Administrative Agent
SECTION 8.01. Appointment and Other
Matters.
(a)
Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading
of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and authorizes the
Administrative Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent by the terms of the
Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under
the laws of any jurisdiction other than the United States of America, each of the Lenders and the Issuing Banks hereby grants to the
Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such
Lender’s or such Issuing Bank’s behalf. Without limiting the foregoing, each Lender and each Issuer hereby authorizes the
Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative
Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents.
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(b)
In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely
on behalf of the Lenders and the Issuing Banks (except in limited circumstances expressly provided for herein relating to the maintenance
of the Register), and its duties are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing:
(i)
the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship
as the agent, fiduciary or trustee of or for any Lender, Issuing Bank or holder of any other obligation other than as expressly set forth
herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it
is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with
reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising
under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect
only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against
the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and
the transactions contemplated hereby;
(ii)
where the Administrative Agent is required or deemed to act as a trustee in respect of any Collateral over which a security interest
has been created pursuant to a Loan Document expressed to be governed by the laws of the United States of America, any State thereof or
the District of Columbia, the obligations and liabilities of the Administrative Agent to the Secured Parties in its capacity as trustee
shall be excluded to the fullest extent permitted by applicable law;
(iii)
nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the
profit element of any sum received by the Administrative Agent for its own account.
(c)
The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an
Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent. The terms “Issuing
Banks”, “Lenders”, “Required Lenders” and any similar terms shall, unless the context clearly otherwise
indicates, include the Administrative Agent in its individual capacity as a Lender, Issuing Bank or as one of the Required Lenders, as
applicable. The Person serving as Administrative Agent 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 Holdings, the Borrower
or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account
therefor to the Lenders or the Issuing Banks.
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(d)
The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and
its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Administrative Agent
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the
Administrative shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary
rights and powers expressly contemplated by the 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 necessary, or as the Administrative Agent shall
believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative
Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless
the Administrative Agent receives an indemnification satisfactory to it from the Lenders and the Issuing Banks with respect to such action
or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of
the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may
effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to
bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek
clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting
until such clarification or direction has been provided, and (c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings,
the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving
as Administrative Agent or any of its Affiliates in any capacity.
(e)
The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other
Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent
may perform any of and all their respective duties and exercise their respective rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent and shall apply to their respective activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence
or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment
that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
(f)
In case of the pendency of any proceeding with respect to any Loan Party under any Federal, State or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or
any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding
or otherwise:
(i)
to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, LC Exposure
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 Issuing Banks and the Administrative Agent (including any claim under Sections 2.12, 2.13, 2.15, 2.16,
2.17 and 9.03) allowed in such judicial proceeding; and
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(ii)
to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, each
Issuing Bank and each other Secured Party 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, the Issuing Banks or the other Secured Parties, to pay to
the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under
Section 9.03). 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 Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or
Issuing Bank in any such proceeding.
(g)
Notwithstanding anything herein to the contrary, neither the Arrangers nor any Person named on the cover page of this Agreement
as a Syndication Agent or athe
Documentation Agent shall have any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable,
as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder.
(h)
The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and,
except solely to the extent of the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Article,
none of Holdings, the Borrower or any Subsidiary shall have any rights as a third party beneficiary of any such provisions. Each Secured
Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and the Guarantees of the Obligations
provided under the Loan Documents, to have agreed to the provisions of this Article.
SECTION
8.02. Administrative Agent’s Reliance, Indemnification, Etc .
.
(a)
Neither the Administrative Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted to be taken
by it under or in connection with this Agreement or the other Loan Documents (x) with the consent of 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 to be necessary, under the circumstances as provided in the Loan Documents) or (y) in the absence of its own gross negligence or
willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable
judgment) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by
any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement
or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement
or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document (including, for the avoidance of doubt, in connection with the Administrative Agent’s reliance on any electronic
signature transmitted by telecopy, emailed pdf or any other electronic means that reproduces an image of an actual executed signature
page) or for any failure of any Loan Party to perform its obligations hereunder or thereunder.
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(b)
The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating
that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or an Issuing
Bank, and 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 in this Agreement or any other Loan Document or the occurrence of
any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document
or any other agreement, instrument or document, (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement
or any other Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or
satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative
Agent or (vi) the creation, perfection or priority of Liens on the Collateral. Notwithstanding anything herein to the contrary, the Administrative
Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower, any Subsidiary, any Lender or
any Issuing Bank as a result of, any determination of the Revolving Exposure or the component amounts thereof or any portion thereof
attributable to each Lender or Issuing Bank, or of the Weighted Average Yield.
(c)
Without limiting the foregoing, the Administrative Agent (i) may treat the payee of any promissory note as its holder until such
promissory note has been assigned in accordance with Section 9.04, (ii) may rely on the Register to the extent set forth in Section 9.04(b),
(iii) may consult with legal counsel (including counsel to the Borrower), independent public accountants and other experts selected by
it, and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts, (iv) makes no warranty or representation to any Lender or Issuing Bank and shall not be responsible to any Lender
or Issuing Bank for any statements, warranties or representations made by or on behalf of any Loan Party in connection with this Agreement
or any other Loan Document, (v) in determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter
of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, may presume that such condition is
satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender
or Issuing Bank sufficiently in advance of the making of such Loan or the issuance of such Letter of Credit and (vi) 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 notice,
consent, certificate or other instrument or writing (which writing may be a fax, any electronic message, Internet or intranet website
posting or other distribution) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent
or otherwise authenticated by the proper party or parties (whether or not such Person in fact meets the requirements set forth in the
Loan Documents for being the maker thereof).
SECTION 8.03. Successor
Administrative Agent.
(a)
Subject to the terms of this paragraph, the Administrative Agent may resign from its capacity as
such upon 30 days’ notice of its intent to resign to the Lenders, the Issuing Banks and the Borrower. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, with the consent of the Borrower (which shall not be unreasonably
withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative
Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office
in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by
a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents.
The fees payable by Holdings and/or the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed by Holdings, the Borrower and such successor.
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(b)
Notwithstanding paragraph (a) of this Section, in the event no successor Administrative Agent shall have been so appointed and
shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the
retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower,
whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder and under the other Loan Documents; provided that, solely for purposes of maintaining
any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring
Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties
and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case
until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being
understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security
Document, including any action required to maintain the perfection of any such security interest), and (ii) the Required Lenders shall
succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided
that (A) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any
Person other than the Administrative Agent shall be made directly to such Person and (B) all notices and other communications required
or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank.
Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article
and Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall
continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent and in respect of the matters referred
to in the proviso under clause (i) above.
SECTION 8.04. Acknowledgements of Lenders
and Issuing Banks.
(a)
Each Lender and each Issuing Bank acknowledges that it is engaged in making, acquiring or holding commercial loans in the ordinary
course of its business and that it has, independently and without reliance upon the Administrative Agent, any Arranger or any other Lender
or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder.
Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, any
Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and
information (which may contain material, non-public information within the meaning of the United States securities laws concerning the
Borrower and their respective Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking
or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder
or thereunder.
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(b)
Each Lender, by delivering its signature page to this Agreement, the
Amendment and Restatement Agreement and funding its Loans on theor
the Second Amendment and Restatement Effective DateAgreement,
or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender
hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document
and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on
the Second Amendment and Restatement Effective Date.
SECTION 8.05. Collateral Matters.
(a)
Except (x) with respect to the exercise of setoff rights of any Lender in accordance with Section 9.08 or (y) with respect to a
Secured Party’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to
realize upon any of the Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights
and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance
with the terms thereof.
(b)
In furtherance of the foregoing and not in limitation thereof, no arrangements in respect of Cash Management Services the obligations
under which constitute Secured Cash Management Obligations, no Hedging Agreement the obligations under which constitute Secured Hedging
Obligations, no Supply Chain Financings the obligations under which constitute Secured Supply Chain Financing Obligations and no Additional
Letter of Credit Facility the obligations under which constitute Secured Additional Letter of Credit Facility Obligations will create
(or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release
of any Collateral or of the obligations of any Loan Party under this Agreement or any other Loan Document. By accepting the benefits of
the Collateral, each Secured Party that is a party to any such arrangement in respect of Cash Management Services, Hedging Agreement or
Supply Chain Financing shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent
under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth
in this paragraph.
(c)
The Secured Parties party hereto irrevocably authorize the Administrative Agent, at its option and in its discretion, to release
or subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document and any Acceptable Intercreditor
Agreement to the holder of any Lien on such property that is permitted by Section 6.02(a)(v). 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.
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(d)
The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit
bid all or any portion of the Obligations (including by accepting some or all of the applicable Collateral in satisfaction of some or
all of such 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 laws in any other jurisdictions to
which a Loan Party is subject, or (b) at any other sale, 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 Secured Parties shall be entitled to be, and shall
be, credit bid by the Administrative Agent at the direction of the Required Lenders 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 shall 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) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle
or vehicles that are issued in connection with such purchase). In connection with any such bid, (i) the Administrative Agent shall be
authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles,
(ii) each of the Secured Parties’ ratable interests in the Obligations which were credit bid shall be deemed without any further
action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative
Agent shall be authorized 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, and the governing documents shall provide for, control by the vote of the Required
Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle
or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions
by the Required Lenders contained in Section 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle
or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit
bid, interests, whether as equity, partnership, limited partnership interests or membership interests, in any such acquisition vehicle
and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take
any further action, and (v) 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 Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned
to the applicable Secured Parties pro rata with their original interest in such Obligations and the equity interests and/or debt instruments
issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Secured Party
or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party
are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents
and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or
debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation
of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such
credit bid.
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(e)
The Lenders and the other Secured Parties party hereto hereby irrevocably authorize and instruct
the Administrative Agent to, without any further consent of any Lender or any other Secured Party, enter into (or acknowledge and consent
to) or amend, renew, extend, supplement, restate, replace, waive or otherwise modify any Acceptable Intercreditor Agreement; provided
that the specific consent of counterparties to any Hedging Agreement the obligations under which constitute Secured Hedging Obligations,
each provider of Cash Management Services the obligations under which constitute Secured Cash Management Obligations, each Supply Chain
Bank in respect of any outstanding Secured Supply Chain Financing Obligations, each provider of an Additional Letter of Credit Facility
in respect of any Secured Additional Letter of Credit Facility Obligations or each Issuing Bank shall be required for any amendment,
renewal, extension, supplement, restatement, replacement or waiver to the extent its rights and obligations solely in its capacity as
such are materially adversely affected. The Lenders and the other Secured Parties irrevocably agree that the Intercreditor Agreement
entered into by the Administrative Agent shall be binding on the Secured Parties, and each Lender and each of the other Secured Parties
hereby agrees that it will take no actions contrary to the provisions of an Acceptable Intercreditor Agreement. The foregoing provisions
are intended as an inducement to any provider of any Indebtedness not prohibited by Section 6.01 hereof to extend credit to the Loan
Parties and such persons are intended third-party beneficiaries of such provisions.
SECTION 8.06. 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 Borrower or
any other Loan Party, that at least one of the following is and will be true:
(i)
such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans
in connection with the Loans, the Letters of Credit or the Commitments,
(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, and the conditions for exemptive relief thereunder
are and will continue to be satisfied in connection therewith,
(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
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(iv)
such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion,
and such Lender.
(b)
In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with
respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the
immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto,
to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto,
for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan
Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance
into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Commitments and this Agreement
(including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document
or any documents related hereto or thereto).
SECTION
8.07. Erroneous Payments.
(a)
Each Lender and each Issuing Bank hereby agrees that (x) if the Administrative Agent notifies such Lender or Issuing Bank that
the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from the Administrative
Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually
and collectively, a “Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or not known to such
Lender or Issuing Bank), and demands the return of such Payment (or a portion thereof), such Lender or Issuing Bank shall promptly, but
in no event later than one Business Day thereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify
in writing), return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made
in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of
each day from and including the date such Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount
is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law,
such Lender or Issuing Bank shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or
right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments
received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the
Administrative Agent to any Lender or any Issuing Bank under this Section 8.07 shall be conclusive, absent manifest error.
(b)
Each Lender and each Issuing Bank hereby further agrees that if it receives a Payment from the Administrative Agent or any of
its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the
Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded
or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment.
Each Lender and each Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may
have been sent in error, such Lender or Issuing Bank shall promptly notify the Administrative Agent of such occurrence and, upon demand
from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter (or such later date as the Administrative
Agent, may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Payment (or portion
thereof) as to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing
by the Administrative Agent) in respect of each day from and including the date such Payment (or portion thereof) was received by such
Lender or Issuing Bank to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
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(c)
The Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered
from any Lender or Issuing Bank that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be
subrogated to all the rights of such Lender or Issuing Bank with respect to such amount and (y) an erroneous Payment shall not pay, prepay,
repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 8.07 shall
not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for),
the Obligations of the Borrower or any other Loan Party relative to the amount (or timing for payment) of the Obligations that would
have been payable had such Erroneous Payment not been made by the
Administrative Agent; provided, further, that for the avoidance of
doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect
to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from, or on behalf of (including
through the exercise of remedies under any Loan Document), the Borrower or any other Loan Party for the purpose of a payment on the Obligations.
(d)
Each party’s obligations under this Section 8.07 shall survive the resignation or replacement of the Administrative Agent or any
transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction
or discharge of all Obligations under any Loan Document.
ARTICLE IX
Miscellaneous
SECTION 9.01.
Notices. (a) General. Except in the case of notices and other communications expressly permitted to be given by telephone
(and subject to paragraph (b) of this Section), 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 fax (to the extent fax information
is provided below), as follows:
(i)
if to Holdings or the Borrower, to it at (A) prior to the Co-Borrower Merger,
c/o Resideo Funding Inc., 901 E 6th Street, Austin, Texas 78702, Attention: Ian
Schlegel (Ian.Schlegel@resideo.com) and Jeannine Lane (Jeannine.Lane@resideo.com);,
and (B) from and following the Co-Borrower Merger, c/o Resideo Funding II, LLC, 901 E 6th Street,
Austin, Texas 78702, Attention: Ian Schlegel (Ian.Schlegel@resideo.com) and Legal Department c/o Jeannine Lane (Legalnotices@resideo.com),
in each case, with a copy (which shall not constitute notice) to Willkie Farr & Gallagher LLP, 787 Seventh Avenue, New York, New
York 10019-6099, Attention: Viktor Okasmaa (vokasmaa@willkie.com) and Charlotta Chung (cchung@willkie.com);
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(ii)
if to the Administrative Agent or Swingline Lender in respect of (i) Borrowings and all other
matters, to it at JPMorgan Chase Bank, N.A., 500 Stanton Christiana Rd. NCC5 / 1st Floor, Newark, DE 19713, Attention of Loan &
Agency Services Group (Telephone No.: +13026345634, Email: andrew.myers@chase.com; Agency Withholding Tax Queries:
agency.tax.reporting@jpmorgan.com; Agency Compliance/Financials/Intralinks: covenant.compliance@jpmchase.com) and
(ii) in its capacity as Issuing Bank to it at JPMorgan Chase Bank, N.A., 10420 Highland Manor Dr. 4th Floor, Tampa, FL 33610,
Attention: Standby LC Unit (Telephone No.: 800-634-1969, Fax No.: 856-294-5267, Email: gts.ib.standby@jpmchase.com), with
a copy to JPMorgan Chase Bank, N.A., 500 Stanton Christiana Road, NCC5/Floor 1, Newark, Delaware 19713, Attention of Loan &
Agency Services Group (Telephone No.: 302-634-4834, Fax No.: 302-634-8459, Email: andrew.myers@chase.com);
(iii)
if to any Issuing Bank, to it at its address or email address (or fax number) most recently specified by it in a notice delivered
to the Administrative Agent and the Borrower (or, in the absence of any such notice, to the address or email address (or fax number) set
forth in the Administrative Questionnaire of the Lender that is serving as such Issuing Bank or is an Affiliate thereof); and
(iv)
if to the Collateral Agent, to it at JPMorgan Chase & Co., CIB DMO WLO Mail code NY1-C413, 4 CMC, Brooklyn, NY, 11245-0001
(Email: ib.collateral.services@jpmchase.com);
(v)
if to any other Lender, to it at its address or email address (or fax number) set forth in its Administrative Questionnaire.
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 fax 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 paragraph (b) of this
Section, shall be effective as provided in such paragraph.
(b)
Electronic Communications. Notices and other communications to the Lenders and the Issuing Banks hereunder may be delivered
or furnished by electronic communication (including e-mail and Internet and intranet websites) pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices under Article II to any Lender or any Issuing Bank
if such Lender or such Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under
such Article by electronic communication. The Administrative Agent, Holdings or the Borrower may, in its discretion, agree to accept notices
and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval
of such procedures may be limited to particular notices or communications or may be rescinded by any such Person by notice to each other
such Person.
Unless
the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed
received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written acknowledgment) and (ii) notices and other communications
posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail
address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the
website address therefore; provided that, for both clauses (i) and (ii) above, if such notice or other communication is not
sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the
opening of business on the next Business Day for the recipient.
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(c)
Change of Address, etc. Any party hereto may change its address or fax number for notices and other communications hereunder
by notice to the other parties hereto.
(d) Platform.
(i)
Holdings and the Borrower agree that the Administrative Agent may, but shall not be obligated to, make any Communications by posting
such Communication on Debt Domain, IntraLinks, SyndTrak or any other electronic platform chosen by the Administrative Agent to be its
electronic transmission system (the “Platform”).
(ii)
Although the Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented
or modified by the Administrative Agent from time to time (including, as of the Second
Amendment and Restatement Effective Date, a user ID/password authorization system) and the Platform is secured through a per-deal
authorization method whereby each user may access the Platform only on a deal-by-deal basis, each of the Lenders, each of the Issuing
Banks, Holdings and the Borrower acknowledges and agrees that the distribution of material through an electronic medium is not necessarily
secure, that the Administrative Agent is not responsible for approving or vetting the representatives or contacts of any Lender that are
added to the Platform, and that there are confidentiality and other risks associated with such distribution. Each of the Lenders, each
of the Issuing Banks, Holdings and the Borrower hereby approves distribution of the Communications through the Platform and understands
and assumes the risks of such distribution.
(iii)
THE PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE PLATFORM AND THE COMMUNICATIONS. 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 THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM.
IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY ARRANGER, ANY CO-DOCUMENTATIONTHE
DOCUMENTATION AGENT, ANY SYNDICATION AGENT OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE
PARTIES”) HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER, ANY ISSUING BANK OR ANY OTHER PERSON OR ENTITY FOR DAMAGES
OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,
CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS
THROUGH THE INTERNET OR THE PLATFORM EXCEPT TO THE EXTENT SUCH DAMAGES ARE FOUND IN A FINAL AND NON-APPEALABLE JUDGMENT OF A COURT
OF COMPETENT JURISDICTION TO HAVE RESULTED FROM THE BAD FAITH, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF AN APPLICABLE PARTY OR ANY
OF ITS RELATED PARTIES.
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(iv)
Each Lender and each Issuing Bank agrees that notice to it (as provided in the next sentence) specifying that Communications have
been posted to the Platform shall constitute effective delivery of the Communications to such Lender or Issuing Bank (as applicable) for
purposes of the Loan Documents. Each Lender and each Issuing Bank agrees (i) to notify the Administrative Agent in writing (which could
be in the form of electronic communication) from time to time of such Lender’s or Issuing Bank’s (as applicable) email address
to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.
(v)
Nothing herein shall prejudice the right of the Administrative Agent, any Lender or any Issuing Bank to give any notice or other
communication pursuant to any Loan Document in any other manner specified in such Loan Document.
SECTION 9.02. Waivers;
Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder
or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder
and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given. Without limiting the generality of the foregoing, the execution
and delivery of this Agreement, the making of a Loan or the issuance, amendment, renewal or extension of a Letter of Credit shall not
be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice
or knowledge of such Default at the time. No notice or demand on Holdings or the Borrower in any case shall entitle Holdings or the Borrower
to any other or further notice or demand in similar or other circumstances.
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(b) Except
as provided in Sections 2.14(b), (c) and (d), 2.21, 2.22, 2.23 and 9.02(c), none of this Agreement, any other Loan Document or any provision
hereof or thereof may be waived, amended or modified except, in the case of this Agreement, pursuant to an agreement or agreements in
writing entered into by Holdings, the Borrower, the Administrative Agent and the Required Lenders and, in the case of any other Loan
Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties
that are parties thereto, in each case with the consent of the Required Lenders; provided that no such agreement shall (i) increase
the Commitment of any Lender without the written consent of such Lender (it being understood and agreed that a waiver of any Default
or Event of Default will not constitute an increase in the Commitment of any Lender), (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, in each case without the written consent
of each Lender adversely affected thereby (it being understood and agreed that a waiver of any Default or Event of Default will not constitute
a reduction in the principal amount of any Loan), (iii) postpone the scheduled maturity date of any Loan, or the date of any scheduled
payment of the principal amount of any Term Loan under Section 2.10 or the applicable Incremental Facility Amendment or the required
date of reimbursement of any LC Disbursement, or any date for the payment of any interest or fees payable hereunder, or reduce the amount
of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of
each Lender adversely affected thereby (it being understood and agreed that a waiver of any Default or Event of Default will not constitute
a postponement of the scheduled maturity date of any loan, or the date of any scheduled payment of principal, interest or fees payable
hereunder), (iv) change the last sentence of Section 2.08(c), Section 2.18(a), Section 2.18(b), Section
2.18(c) or any other Section hereof or any other Loan Document providing for the ratable treatment
of the Lenders, in each case in a manner that would alter the pro rata termination of commitments or sharing
of payments required thereby, without the written consent of each Lender adversely affected thereby, (v) change any of the provisions
of this Section or the definition of the term “Required Lenders” or “Majority in Interest” or any other provision
of this Agreement or any other Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive,
amend or otherwise modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent
of each Lender (or each Lender of such Class, as applicable); provided that, with the consent of the Required Lenders, the provisions
of this Section and the definition of the term “Required Lenders” or “Majority in Interest” may be amended to
include references to any new class of loans created under this Agreement (or to lenders extending such loans) on substantially the same
basis as the corresponding references relating to the existing Classes of Loans or Lenders, (vi) release all or substantially all of
the value of the Guarantees provided by the Loan Parties under the Security Documents, in each case without the written consent of each
Lender (except as expressly provided in Section 9.14 or the Security Documents) (including any such release by the Administrative Agent
in connection with any sale or other disposition of any Subsidiary upon the exercise of remedies under the Security Documents), it being
understood and agreed that an amendment or other modification of the type of obligations guaranteed under the Security Documents shall
not be deemed to be a release of any Guarantee), (vii) release all or substantially all the Collateral from the Liens of the Security
Documents without the written consent of each Lender (except as expressly provided in Section 9.14 or the applicable Security Document
(including any such release by the Administrative Agent in connection with any sale or other disposition of the Collateral upon the exercise
of remedies under the Security Documents), it being understood and agreed that an amendment or other modification of the type of obligations
secured by the Security Documents shall not be deemed to be a release of the Collateral from the Liens of the Security Documents), (viii)
waive any condition set forth in Section 5 of the Second Amendment
and Restatement Agreement (other than as it relates to the payment of fees and expenses of counsel), or, in the case of any Loans made
or Letters of Credit issued on the Second Amendment and Restatement
Effective Date, Section 4.02, without the written consent of each Lender with a Revolving Commitment and each Issuing Bank (as applicable),
(ix) change any provisions of this Agreement or any other Loan Document in a manner that by its terms adversely affects the rights in
respect of Collateral securing the obligations owed to, or payments due to, Lenders holding Loans of any Class differently than those
holding Loans of any other Class, without the written consent of Lenders representing a Majority in Interest of each affected Class,
(x) change the rights of the Initial Term Lenders, the Fourth Amendment Term Lenders or the Sixth Amendment Term Lenders to decline mandatory
prepayments as provided in Section 2.11 or the rights of any Additional Lenders of any Class to decline mandatory prepayments of Term
Loans of such Class as provided in the applicable Incremental Facility Amendment, without the written consent of Initial Term Lenders,
Fourth Amendment Term Lenders, Sixth Amendment Term Lenders or Additional Lenders of such Class, as applicable, holding a majority of
the outstanding Initial Term Loans, Fourth Amendment Term Loans, Sixth Amendment Term Loans or Incremental Term Loans of such Class or
(xi) (A) change Section 6.12 or 6.13 (or for the purposes of determining compliance with Section 6.12 or Section 6.13, any defined terms
used therein), (B) waive or consent to any Default or Event of Default resulting from a breach of Section 6.12 or Section 6.13 or (C)
alter the rights or remedies of the Required Revolving Lenders arising pursuant to Article VII as a result of a breach of Section 6.12
or Section 6.13, in each case, without the written consent of the Required Revolving Lenders; provided, however, that the
amendments, modifications, waivers and consents described in this clause (xi) shall not require the consent of any Lenders other than
the Required Revolving Lenders; provided further that (A) no such agreement shall amend, modify, extend or otherwise affect
the rights or obligations of the Administrative Agent or any Issuing Bank without the prior written consent of the Administrative Agent
or such Issuing Bank, as applicable, (B) any waiver, amendment or other modification of this Agreement that by its terms affects the
rights or duties under this Agreement of the Lenders of one or more Classes (but not the Lenders of any other Class) may be effected
by an agreement or agreements in writing entered into by Holdings, the Borrower and the requisite number or percentage in interest of
each affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class
of Lenders hereunder at the time (provided that any change that would directly and adversely affect a Class of Lenders hereunder shall
require the written consent of the Majority in Interest with respect to each such Class directly and adversely affected thereby) and
(C) if the terms of any waiver, amendment or other modification of this Agreement or any other Loan Document provide that any Class of
Loans (together with all accrued interest thereon and all accrued fees payable with respect to the Commitments of such Class) will be
repaid or paid in full, and the Commitments of such Class (if any) terminated, as a condition to the effectiveness of such waiver, amendment
or other modification, then so long as the Loans of such Class (together with such accrued interest and fees) are in fact repaid or paid
in full and such Commitments are in fact terminated, in each case prior to or substantially simultaneously with the effectiveness of
such amendment, then such Loans and Commitments shall not be included in the determination of the Required Lenders with respect to such
amendment. Notwithstanding any of the foregoing, (1) no consent with respect to any waiver, amendment or other modification of this Agreement
or any other Loan Document shall be required of any Defaulting Lender, except with respect to any waiver, amendment or other modification
referred to in clause (i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall
be affected by such waiver, amendment or other modification, (2) any provision of this Agreement or any other Loan Document may be amended
by an agreement in writing entered into by the Borrower and the Administrative Agent (i) to cure any ambiguity, omission, mistake, defect
or inconsistency, (ii) to comply with local law or advice of local counsel, (iii) to cause any guarantee, collateral security document
(including Mortgages) or other document to be consistent with this Agreement, the other Loan Documents and each Acceptable Intercreditor
Agreement or (iv) to give effect to the provisions of Section 2.14(b), (c) or (d) or to amend time periods, minimum amounts and currency
exchange rate calculations mechanics with respect to borrowing and payment mechanics in respect of any Revolving Commitments solely to
the extent necessary to implement a Permitted Foreign Currency and (3) this Agreement may be amended to provide for Incremental Extensions
of Credit in the manner contemplated by Section 2.21, the extension of the Maturity Date as provided in Section 2.22 and the incurrence
of Refinancing Revolving Commitments (and Loans in respect thereof) and Refinancing Term Loan Indebtedness as provided in Section 2.23,
in each case without any additional consents.
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(c) In
connection with any Proposed Change requiring the consent of all Lenders or all affected Lenders, if the consent of the Required Lenders
(and, to the extent any Proposed Change requires the consent of Lenders holding Loans of any Class pursuant to clause (iv) of paragraph
(b) of this Section, the consent of a Majority in Interest of the outstanding Loans and unused Commitments of such Class) to such Proposed
Change is obtained, but the consent to such Proposed Change of other Lenders whose consent is required is not obtained (any such Lender
whose consent is not obtained as described in paragraph (b) of this Section being referred to as a “Non-Consenting Lender”
for purposes of this clause (c)), then the Borrower may, at its sole expense and effort, upon notice to such Non-Consenting Lender and
the Administrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) if the
Administrative Agent is not such Non-Consenting Lender, the Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Commitment is being assigned, each Issuing Bank), which consent shall not unreasonably be withheld or delayed,
(ii) such Non-Consenting Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations
in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder (including, if applicable,
the prepayment fee pursuant to Section 2.11(h)) (with such assignment
being deemed to be an optional prepayment for purposes of determining the applicability of such Section) from the assignee (in the case
of such principal and accrued interest and fees) (other than any
fee payable pursuant to Section 2.11(h)) or the Borrower (in the case of all other amounts)
(including any amount payable pursuant to Section 2.11(h)),
(iii) the Borrower or such assignee shall have paid to the Administrative Agent the processing and recordation fee specified in Section
9.04(b), (iv) such assignment does not conflict with applicable law and (v) the assignee shall have given its consent to such Proposed
Change and, as a result of such assignment and delegation and any contemporaneous assignments and delegations and consents, such Proposed
Change can be effected. Any assignment required pursuant to this Section 9.02(c) may be effected pursuant to an Assignment and Assumption
executed by the Borrower, the Administrative Agent and the assignee, and the Lender required to make such assignment shall not be required
to be a party to such Assignment and Assumption.
(d)
Notwithstanding anything herein to the contrary, the Administrative Agent may, without the consent of any Secured Party, consent
to a departure by any Loan Party from any covenant of such Loan Party set forth in this Agreement or any Security Document to the extent
such departure is consistent with the authority of the Administrative Agent set forth in the definition of the term “Collateral
and Guarantee Requirement”.
(e)
The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute waivers, amendments
or other modifications on behalf of such Lender. Any waiver, amendment or other modification effected in accordance with this Section,
shall be binding upon each Person that is at the time thereof a Lender and each Person that subsequently becomes a Lender.
SECTION
9.03. Expenses; Indemnity; Damage Waiver. (a) Expenses. Holdings and the Borrower shall pay, (i) all reasonable,
documented and invoiced out-of-pocket expenses incurred by the Administrative Agent, the Arrangers, the Syndication Agents, the
Documentation AgentsAgent
and their respective Affiliates (without duplication), including the reasonable fees and documented charges and disbursements of a
single primary counsel and to the extent reasonably determined by the Administrative Agent to be necessary, one local counsel in
each appropriate jurisdiction, in connection with the structuring, arrangement and syndication of the credit facilities provided for
herein and any credit or similar facility refinancing or replacing, in whole or in part, any of the credit facilities provided for
herein, as well as the preparation, negotiation, execution, delivery and administration of this Agreement, the other Loan Documents
or any waiver, amendments or modifications of the provisions hereof or thereof, (ii) all reasonable, documented and invoiced
out-of-pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter
of Credit or any demand for payment thereunder and (iii) all reasonable, documented and invoiced out-of-pocket expenses incurred by
the Administrative Agent, any Issuing Bank, any Lender or any Arranger, including the reasonable, documented and invoiced fees,
charges and disbursements of counsel for any of the foregoing, in connection with the enforcement or protection of its rights in
connection with the Loan Documents, including its rights under this Section, or 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) Indemnity.
Holdings and the Borrower shall indemnify the Administrative Agent, the Arrangers, the Syndication Agents, the Documentation AgentsAgent,
the Lenders, the Issuing Banks 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, penalties,
liabilities and related expenses (including the reasonable and documented fees, charges and disbursements of one firm of counsel for
all such Indemnitees, taken as a whole, and, if reasonably necessary, of a single firm of local counsel in each appropriate
jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for all such Indemnitees, taken
as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs
the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee and,
if reasonably necessary, of another firm of local counsel in each appropriate jurisdiction (which may include a single firm of
special counsel acting in multiple jurisdictions) for such affected Indemnitee)), incurred by or asserted against such Indemnitees
arising out of, in connection with or as a result of any actual or prospective claim, litigation, investigation or proceeding
relating to (i) the structuring, arrangement and syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement, the other Loan Documents or any other agreement or instrument
contemplated hereby or thereby, the performance by the parties to this Agreement or the other Loan Documents of their respective
obligations hereunder or thereunder or the consummation of the Transactions or any other transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by any Issuing Bank 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) or (iii) any actual or alleged presence or Release of Hazardous Materials on, at, to or from any
Mortgaged Property or any other property currently or formerly owned or operated by Holdings, the Borrower or any Subsidiary, or any
other Environmental Liability related in any way to Holdings, the Borrower or any Subsidiary, in each case, whether based on
contract, tort or any other theory and whether initiated against or by any party to this Agreement or any other Loan Document, any
Affiliate of any of the foregoing or any third party (and regardless of whether any Indemnitee is a party thereto); provided
that the foregoing indemnity shall not, as to any Indemnitee, apply to any losses, claims, damages, liabilities or related expenses
to the extent they are found in a final and non-appealable judgment of a court of competent jurisdiction to have resulted from (A)
the bad faith, willful misconduct or gross negligence of such Indemnitee, (B) a claim brought by Holdings, the Borrower or any
Subsidiary against such Indemnitee for material breach of such Indemnitee’s obligations under this Agreement or any other Loan
Document or (C) a proceeding that does not involve an act or omission by Holdings, the Borrower or any of their respective
Affiliates and that is brought by an Indemnitee against any other Indemnitee (other than a proceeding that is brought against the
Administrative Agent or any other agent or any Arranger in its capacity or in fulfilling its roles as an agent or arranger hereunder
or any similar role with respect to the Indebtedness incurred or to be incurred hereunder). This paragraph shall not apply with
respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim.
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(c) Reimbursement.
To the extent that Holdings and the Borrower fail to indefeasibly pay any amount required to be paid by them under paragraph (a) or (b)
of this Section to the Administrative Agent, any Issuing Bank or any Related Party of any of the foregoing (and without limiting their
obligation to do so), each Lender severally agrees to pay to the Administrative Agent, such Issuing Bank or such Related Party, as applicable,
such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount (it being understood and agreed that the Borrower’s failure to pay any such amount shall not relieve the
Borrower of any default in the payment thereof); provided that the unreimbursed expense or indemnified loss, claim, damage, liability
or related expense, as applicable, was incurred by or asserted against the Administrative Agent or such Issuing Bank in its capacity
as such, or against any Related Party of any of the foregoing acting for the Administrative Agent or any Issuing Bank in connection with
such capacity; provided further that, with respect to such unpaid amounts owed to any Issuing Bank in its capacity as such,
or to any Related Party of any of the foregoing acting for any Issuing Bank in connection with such capacity, only the Revolving Lenders
shall be required to pay such unpaid amounts. For purposes of this Section, a Lender’s “pro rata share” shall be determined
by its share of the sum of the total Revolving Exposure, unused Revolving Commitments and, except for purposes of the second proviso
of the immediately preceding sentence, the outstanding Term Loans and unused Term Commitments, in each case at that time. The obligations
of the Lenders under this paragraph are subject to the last sentence of Section 2.02(a) (which shall apply mutatis mutandis to
the Lenders’ obligations under this paragraph).
(d)
Limitation of Liability. To the fullest extent permitted by applicable law, (i) neither Holdings nor the Borrower shall
assert, or permit any of their respective Affiliates or Related Parties to assert, and each hereby waives, any claim against the Administrative
Agent, any Arranger, any Syndication Agent, any Co-Documentationthe
Documentation Agent, any Issuing Bank and any Lender, and any Related Party of the foregoing Persons (each such Person being called
a “Lender-Related Person”) for any damages arising from the use by others of information or other materials
obtained through telecommunications, electronic or other information transmission systems (including the Internet), except to the extent
such damages are found in a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the bad faith,
willful misconduct or gross negligence of any Lender-Related Person or Related Party of any Lender-Related Person or (ii) neither any
Lender-Related Person nor any other party to this Agreement or any other Loan Document shall be liable 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 or thereby, the Transactions, any Loan or Letter of Credit or the
use of the proceeds thereof; provided that nothing in this clause (ii) shall limit the expense reimbursement and indemnification
obligations of Holdings and the Borrower set forth in paragraphs (a) and (b) of this Section 9.03.
(e)
Payments. All amounts due under this Section shall be payable promptly after written demand therefor.
SECTION
9.04. Successors and Assigns. (a) General. 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 (including any Affiliate of any Issuing
Bank that issues any Letter of Credit), except that (i) neither Holdings nor the Borrower may assign, delegate or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and (ii) no
Lender may assign, delegate or otherwise transfer its rights or obligations hereunder except in accordance with this Section.
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 (including any Affiliate of any Issuing Bank that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section), the Arrangers, the Syndication Agents, the Documentation AgentsAgent
and, to the extent expressly contemplated hereby, the Related Parties of any of the Administrative Agent, any Arranger, any
Syndication Agent, anythe
Documentation Agent, any Issuing Bank and any Lender) any legal or equitable right, remedy or claim under or by reason of this
Agreement.
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(b) Assignments
by Lenders. (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign and delegate to one or more
Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it) with the prior written consent of (A) the Borrower (such consent not to be unreasonably withheld
or delayed); provided that no consent of the Borrower shall be required (1) for assignments of Commitments or Loans of any Class
to another Lender under such Class, an Affiliate of a Lender under such Class or an Approved Fund and (2) if an Event of Default of the
type set forth in Section 7.01(a), (b), (h) or (i) has occurred and is continuing, for any other assignment and delegation; provided
further that the Borrower shall be deemed to have consented to an assignment and delegation of rights and obligations of Term
Loans unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice
thereof, (B) the Administrative Agent (such consent not to be unreasonably withheld or delayed); provided that no consent of the
Administrative Agent shall be required for an assignment and delegation of all or any portion of a Term Commitment or Term Loan to a
Lender, an Affiliate of a Lender or an Approved Fund and (C) each Issuing Bank (such consent not to be unreasonably withheld or delayed)
in the case of any assignment and delegation of all or a portion of a Revolving Commitment or any Lender’s obligations in respect
of its LC Exposure.
(ii)
Assignments and delegations shall be subject to the following additional conditions: (A) except in the case of an assignment and
delegation to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment and delegation of the entire remaining amount
of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment and delegation (determined as of the trade date specified in the Assignment and Assumption with
respect to such assignment and delegation or, if no trade date is so specified, as of the date the Assignment and Assumption with
respect to such assignment and delegation is delivered to the Administrative Agent) shall not be less than $5,000,000 or, in the
case of Term Loans, $1,000,000 (treating contemporaneous assignments by or to two or more Approved Funds as a single assignment for
purposes of such minimum transfer amount), unless each of the Borrower and the Administrative Agent otherwise consents (such consent
not to be unreasonably withheld or delayed); provided that no such consent of the Borrower shall be required if an Event of
Default of the type set forth in Section 7.01(a), (b), (h) or (i) has occurred and is continuing, (B) each partial assignment and
delegation shall be made as an assignment and delegation of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement; provided that this clause (B) shall not be construed to prohibit the assignment and
delegation of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments
or Loans, (C) the parties to each assignment and delegation shall execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of $3,500; provided that (1) only one such processing and
recordation fee shall be payable in the event of simultaneous assignments and delegations by or to two or more Approved Funds, (2)
the Administrative Agent may waive or reduce such fee in its sole discretion and (3) with respect to any assignment and delegation
pursuant to Section 2.19(b) or 9.02(c), the parties hereto agree that such assignment and delegation may be effected pursuant to an
Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make
such assignment and delegation need not be a party thereto, and (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent any tax forms required by Section 2.17(f) and an Administrative Questionnaire in which the assignee designates
one or more credit contacts to whom all syndicate-level information (which may contain MNPI) will be made available and who may
receive such information in accordance with the assignee’s compliance procedures and applicable law, including Federal, State
and foreign securities laws.
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(iii)
Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section, from and after the effective date specified
in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned and delegated
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 and delegated by such Assignment and Assumption, be released from its obligations under
this Agreement (and, in the case of an Assignment and Assumption covering all the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of (and subject to the
obligations and limitations of) Sections 2.15, 2.16, 2.17 and 9.03 and to any fees payable hereunder that have accrued for such Lender’s
account but have not yet been paid). Any assignment, delegation or other transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 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 Section 9.04(c).
(iv)
The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its
offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans and LC Disbursements 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 Holdings, the Borrower, the Administrative Agent, the Issuing Banks and the Lenders shall treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower and, as to entries pertaining to it, any Issuing Bank or any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(v)
Upon receipt by the Administrative Agent of a duly completed Assignment and Assumption executed by an assigning Lender and an
assignee, the assignee’s completed Administrative Questionnaire and any tax forms required by Section 2.17(f) (unless the
assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment and delegation required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Assumption and record the information contained therein in the Register; provided that the
Administrative Agent shall not be required to accept such Assignment and Assumption or so record the information contained therein
if the Administrative Agent reasonably believes that such Assignment and Assumption lacks any written consent required by this
Section or is otherwise not in proper form, it being acknowledged that the Administrative Agent shall have no duty or obligation
(and shall incur no liability) with respect to obtaining (or confirming the receipt) of any such written consent or with respect to
the form of (or any defect in) such Assignment and Assumption, any such duty and obligation being solely with the assigning Lender
and the assignee. No assignment or delegation shall be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph and, following such recording, unless otherwise determined by the Administrative Agent (such
determination to be made in the sole discretion of the Administrative Agent, which determination may be conditioned on the consent
of the assigning Lender and the assignee), shall be effective notwithstanding any defect in the Assignment and Assumption relating
thereto. Each assigning Lender and the assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to
have represented to the Administrative Agent that all written consents required by this Section with respect thereto (other than the
consent of the Administrative Agent) have been obtained and that such Assignment and Assumption is otherwise duly completed and in
proper form, and each assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented
to the assigning Lender and the Administrative Agent that such assignee is an Eligible Assignee.
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(vi)
The words “execution”, “signed”, “signature” and words of like import in any Assignment and
Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as applicable,
to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act or any other similar State laws based on the Uniform Electronic Transactions
Act.
(c) Participations.
Any Lender may, without the consent of the Borrower, the Administrative Agent or any Issuing Bank, sell participations to one or
more Eligible Assignees (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 Commitments and Loans of any Class); provided that (A)
such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations (C) Holdings, the Borrower, the Administrative Agent, the Issuing Banks
and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement and (D) the Participant will under no circumstances (x) be subrogated to, or substituted in respect
of, the Lender’s claims under this Agreement and (y) have otherwise any contractual relationship with, or rights against, the
Borrower under or in relation to this Agreement. 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 or any other Loan Document; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in
clause (i), (ii), (iii), (vi) or (vii) in the first proviso to Section 9.02(b) that affects such Participant or requires the
approval of all the Lenders. Holdings and the Borrower agree that each Participant shall be entitled to the benefits of Sections
2.15, 2.16 and 2.17 (subject to the requirements and limitations therein, including the requirements under Section 2.17(f) (it being
understood and agreed that the documentation required under Section 2.17(f) shall be delivered to the participating Lender)) to the
same extent as if it were a Lender and had acquired its interest by assignment and delegation pursuant to paragraph (b) of this
Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 2.18 and 2.19 as if it were an
assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under Section 2.15 or
2.17, with respect to any participation, than its participating Lender 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 Borrower’s request and expense, to use reasonable efforts
to cooperate with the Borrower to effectuate the provisions of Section 2.19(b) with respect to any Participant. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender; provided
that such Participant agrees to be subject to Section 2.18(c) 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 Borrower, maintain a register on which it enters the name and
address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or
other obligations under this Agreement or any other Loan Document (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 this Agreement or any other 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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(d)
Certain Pledges. Any Lender may, without the consent of the Borrower, the Administrative Agent or any Issuing Bank, at any
time pledge or assign a security interest in all or any portion of its rights under this Agreement (other than to a natural person) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any other “central”
bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.
(e)
Purchasing Borrower Parties. Notwithstanding anything else to the contrary contained in this Agreement (including, without
limitation, the definition of “Eligible Assignee”), any Lender may assign and delegate all or a portion of its Term Loans
to any Purchasing Borrower Party (x) through open market purchases made by such Purchasing Borrower Party on a non-pro rata basis (subject
to clause (v) below) or (y) otherwise in accordance with clauses (i) through (vii) below (which assignment and delegation, in the case
of the foregoing clauses (x) and (y) will not constitute a prepayment of Loans for any purposes of this Agreement and the other Loan Documents);
provided that, in the case of assignments and delegations made pursuant to the foregoing clause (y):
(i)
no Default or Event of Default has occurred and is continuing or would result therefrom;
(ii)
each Auction Purchase Offer shall be conducted in accordance with the procedures, terms and conditions set forth in this paragraph
and the Auction Procedures;
(iii)
the assigning Lender and Purchasing Borrower Party purchasing such Lender’s Term Loans, as applicable, shall execute and
deliver to the Administrative Agent an Affiliated Lender Assignment and Assumption in lieu of an Assignment and Assumption;
(iv)
for the avoidance of doubt, the Lenders shall not be permitted to assign or delegate Revolving Commitments or Revolving Exposure
to a Purchasing Borrower Party;
(v)
to the extent permitted by applicable law, any Term Loans assigned and delegated to any Purchasing Borrower Party shall be automatically
and permanently cancelled upon the effectiveness of such assignment and delegation and will thereafter no longer be outstanding for any
purpose hereunder (it being understood and agreed that (A) except as expressly set forth in any such definition, any gains or losses by
any Purchasing Borrower Party upon purchase or acquisition and cancellation of such Term Loans shall not be taken into account in the
calculation of Excess Cash Flow, Consolidated Net Income and Consolidated EBITDA and (B) any purchase of Term Loans pursuant to this paragraph
(f) shall not constitute a voluntary prepayment of Term Loans for purposes of this Agreement);
(vi)
the Purchasing Borrower Party shall either (A) not have any MNPI that has not been disclosed to the assigning Lender (other than
any such Lender that does not wish to receive MNPI) on or prior to the date of any initiation of an Auction by such Purchasing Borrower
Party or (B) advise the assigning Lender that it cannot make the statement in the foregoing clause (A), except to the extent that such
Lender has entered into a customary “big boy” letter with Holdings or the Borrower; and
(vii)
no Purchasing Borrower Party may use the proceeds from Revolving Loans to purchase any Term Loans.
(f)
Disqualified Institutions. The Administrative Agent (i) shall have no obligation with respect to, and shall bear no responsibility
or liability for, the ascertaining, monitoring, inquiring or enforcing of the list of Persons who are Disqualified Institutions (or any
provisions relating thereto) at any time, and shall have no liability with respect to or arising out of any assignment or participation
of any Loans to any Disqualified Institution and (ii) may share a list of Persons who are Disqualified Institutions with any Lender, Participant,
or any prospective assignee or Participant, upon request. Notwithstanding anything to the contrary set forth in this Agreement, if the
Borrower consents in writing to an Assignment and Assumption to any Person or to otherwise permit any Person to become a Lender or Participant
hereunder, such Person shall not be considered a Disqualified Institution, whether or not they would otherwise be considered a Disqualified
Institution pursuant to this Agreement.
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SECTION
9.05. Survival. All covenants, agreements, representations and warranties made by the Loan Parties in this Agreement and the
other Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the other Loan Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, the
Arrangers, any Syndication Agent, anythe
Documentation Agent, any Issuing Bank, any Lender or any Affiliate of any of the foregoing may have had notice or knowledge of any
Default or incorrect representation or warranty at the time this Agreement or any other Loan Document is executed and delivered or
any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any LC Exposure is outstanding and
so long as the Commitments have not expired or terminated. Notwithstanding the foregoing or anything else to the contrary set forth
in this Agreement or any other Loan Document, in the event that, in connection with the refinancing or repayment in full of the
credit facilities provided for herein, an Issuing Bank shall have provided to the Administrative Agent a written consent to the
release of the Revolving Lenders from their obligations hereunder with respect to any Letter of Credit issued by such Issuing Bank
(whether as a result of the obligations of the Borrower (and any other account party) in respect of such Letter of Credit having
been collateralized in full by a deposit of cash with such Issuing Bank, or being supported by a letter of credit that names such
Issuing Bank as the beneficiary thereunder, or otherwise), then from and after such time such Letter of Credit shall cease to be a
“Letter of Credit” outstanding hereunder for all purposes of this Agreement and the other Loan Documents, and the
Revolving Lenders shall be deemed to have no participations in such Letter of Credit, and no obligations with respect thereto, under
Section 2.05(d) or 2.05(e). The provisions of Sections 2.15, 2.16, 2.17, 2.18(e) and 9.03 and Article VIII shall survive and remain
in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment or prepayment of the
Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 9.06.
Counterparts; Integration; Effectiveness. (a) This Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent or
the syndication of the Loans and Commitments 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 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.
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(b)
Delivery of an executed counterpart of a signature page of (x) this Agreement, (y) any other Loan Document and/or (z) any document,
amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered pursuant to Section
9.01), certificate, request, statement, disclosure or authorization related to this Agreement, any other Loan Document and/or the
transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an electronic
signature transmitted by telecopy, emailed pdf or any other electronic means that reproduces an image of an actual executed
signature page shall be effective as delivery of a manually executed counterpart of this Agreement, such other Loan Document or such
Ancillary Document, as applicable. The words “execution,” “signed,” “signature,”
“delivery,” and words of like import in or relating to this Agreement, any other Loan Document and/or any Ancillary
Document shall be deemed to include electronic signatures, deliveries or the keeping of records in any electronic form (including
deliveries by telecopy, emailed pdf or any other electronic means that reproduces an image of an actual executed signature page),
each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery
thereof or the use of a paper-based recordkeeping system, as the case may be, provided that nothing herein shall require the
Administrative Agent to accept electronic signatures in any form or format without its prior written consent and pursuant to
procedures approved by it; provided, further, without limiting the foregoing, (i) to the extent the Administrative Agent has agreed
to accept any electronic signature, the Administrative Agent and each of the Lenders shall be entitled to rely on such electronic
signature purportedly given by or on behalf of, Holdings, U.S. HoldCo 1, U.S. HoldCo 2, the Borrower or any other Loan Party without
further verification thereof and without any obligation to review the appearance or form of any such electronic signature and (ii)
upon the request of the Administrative Agent or any Lender, any electronic signature shall be promptly followed by a manually
executed counterpart. Without limiting the generality of the foregoing, Holdings, U.S. HoldCo 1, U.S. HoldCo 2, the Borrower and
each Loan Party hereby (i) agrees that, for all purposes, including without limitation, in connection with any workout,
restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders, Holdings,
U.S. HoldCo 1, U.S. HoldCo 2, the Borrower and the Loan Parties, electronic signatures transmitted by telecopy, emailed pdf. or any
other electronic means that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement,
any other Loan Document and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper
original, (ii) the Administrative Agent and each of the Lenders may, at its option, create one or more copies of this Agreement, any
other Loan Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed
created in the ordinary course of such Person’s business, and destroy the original paper document (and all such electronic
records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a
paper record), (iii) waives any argument, defense or right to contest the legal effect, validity or enforceability of this
Agreement, any other Loan Document and/or any Ancillary Document based solely on the lack of paper original copies of this
Agreement, such other Loan Document and/or such Ancillary Document, respectively, including with respect to any signature pages
thereto and (iv) waives any claim against any Lender-Related Person for any losses, claims, damages and liabilities arising solely
from the Administrative Agent’s and/or any Lender’s reliance on or use of electronic signatures and/or transmissions by
telecopy, emailed pdf or any other electronic means that reproduces an image of an actual executed signature page, including any
such losses, claims, damages and liabilities arising as a result of the failure of Holdings, U.S. HoldCo 1, U.S. HoldCo 2, the
Borrower and/or any Loan Party to use any available security measures in connection with the execution, delivery or transmission of
any electronic signature.
SECTION 9.07.
Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall
not invalidate such provision in any other jurisdiction.
SECTION
9.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each Issuing Bank 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) or other amounts at any time held and
other obligations (in whatever currency) at any time owing by such Lender or such Issuing Bank to or for the credit or the account
of Holdings or the Borrower against any of and all the obligations then due of Holdings or the Borrower now or hereafter existing
under this Agreement held by such Lender or such Issuing Bank, irrespective of whether or not such Lender or such Issuing Bank shall
have made any demand under this Agreement and although such obligations of Holdings or the Borrower are owed to a branch or office
of such Lender or such Issuing Bank different from the branch or office holding such deposit or obligated on such Indebtedness. Each
Lender and each Issuing Bank agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and
application; provided that the failure to give or any delay in giving such notice shall not affect the validity of any such
setoff and application under this Section. The rights of each Lender and each Issuing Bank under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender or such Issuing Bank may have.
177
SECTION
9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out
of or relating to this Agreement and the transactions contemplated hereby shall be governed by, and construed in accordance with,
the law of the State of New York.
(b)
Each of Holdings and the Borrower irrevocably and unconditionally agrees that it will not, and will not permit any controlled Subsidiary
to, 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 Issuing Bank or any Related Party of any 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, for itself and its property, to the jurisdiction
of such courts and agrees that all claims in respect of any action, litigation or proceeding shall be heard and determined in such New
York State court or, to the fullest extent permitted by applicable law, in such Federal court. Each party 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 shall affect any right that the Administrative Agent, any Lender or any
Issuing Bank may otherwise have to bring any action, litigation or proceeding relating to this Agreement or any other Loan Document against
any Loan Party or any of its properties in the courts of any jurisdiction.
(c)
Each party hereto hereby 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, litigation 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 law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d)
Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner
permitted by law.
SECTION
9.10. 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 PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY 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.
178
SECTION 9.11. Headings.
Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement
and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION
9.12. Confidentiality. Each of the Administrative Agent, the Lenders and the Issuing Banks agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed (a) to its Related Parties, including accountants, legal
counsel and other agents and advisors, it being understood and agreed 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 and any failure of such Persons acting
on behalf of the Administrative Agent, any Issuing Bank or the relevant Lender to comply with this Section 9.12 shall constitute a breach
of this Section 9.12 by the Administrative Agent, such Issuing Bank or the relevant Lender, as applicable, (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), (c) to the extent required by applicable laws or regulations
or by any subpoena or similar legal process (provided, that to the extent practicable and permitted by law, the Borrower has been
notified prior to such disclosure so that the Borrower may seek, at the Borrower’s sole expense, a protective order or other appropriate
remedy), (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies under this Agreement or any other
Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder, provided that each Lender and the Administrative Agent shall use commercially reasonable efforts to ensure that
such Information is kept confidential in connection with the exercise of such remedies (f) subject to an agreement containing confidentiality
undertakings substantially similar to those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its Related
Parties) to any Hedging Agreement relating to Holdings, the Borrower or any Subsidiary and its obligations hereunder or under any other
Loan Document, (g) on a confidential basis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries or the
credit facilities provided for herein or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring
of CUSIP numbers with respect to the credit facilities provided for herein, (h) with the consent of the Borrower, (i) to the extent such
Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative
Agent, any Lender or any Issuing Bank or any Affiliate of any of the foregoing on a non-confidential basis from a source other than Holdings,
the Borrower or any Subsidiary, which source is not known by the recipient of such information to be subject to a confidentiality obligation
or (j) to any credit insurance provider relating to the Borrower or its Obligations. For purposes of this Section, “Information”
means all information received from Holdings, the Borrower or any Subsidiary relating to Holdings, the Borrower or any Subsidiary or
their businesses, other than any such information that is available to the Administrative Agent, any Lender or any Issuing Bank on a
nonconfidential basis prior to disclosure by Holdings or the Borrower. 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.
179
SECTION 9.13. Interest
Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan or participation
in any LC Disbursement, together with all fees, charges and other amounts that are treated as interest on such Loan or LC Disbursement
or participation therein under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the
“Maximum Rate”) that may be contracted for, charged, taken, received or reserved by the Lender or Issuing Bank holding
such Loan or LC Disbursement or participation therein in accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Charges that would have been payable in respect of such Loan or LC Disbursement or participation therein but were not
payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender or Issuing
Bank in respect of other Loans or LC Disbursements or participation therein or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall
have been received by such Lender or Issuing Bank.
SECTION
9.14. Release of Liens and Guarantees. Subject to the reinstatement provisions set forth in any applicable Security Document,
a Loan Party (other than Holdings) shall automatically be released from its obligations under the Loan Documents, and all security
interests created by the Security Documents in Collateral owned by such Loan Party shall be automatically released, upon the
consummation of any transaction permitted by this Agreement as a result of which such Loan Party ceases to be a Restricted
Subsidiary or becomes an Excluded Subsidiary; provided that, if so required by this Agreement, the Required Lenders (or if
applicable, the Lenders) shall have consented to such transaction and the terms of such consent shall not have provided otherwise.
Upon any sale or other transfer by any Loan Party (other than to Holdings, the Borrower or any other Loan Party) of any Collateral
in a transaction permitted under this Agreement, or upon the effectiveness of any written consent to the release of the security
interest created under any Security Document in any Collateral pursuant to Section 9.02, the security interests in such Collateral
created by the Security Documents shall be automatically released. Upon the release of any Loan Party from its Guarantee (other than
Holdings) in compliance with this Agreement, the security interest in any Collateral owned by such Loan Party created by the
Security Documents shall be automatically released. Upon the designation of a Restricted Subsidiary as an Unrestricted Subsidiary in
compliance with this Agreement, the security interest created by the Security Documents in the Equity Interests of such Unrestricted
Subsidiary shall be automatically released. On the date on which all (1) Obligations have been paid in full in cash (other than (v)
Secured Hedging Obligations not yet due and payable, (w) Secured Cash Management Obligations not yet due and payable, (x) Secured
Supply Chain Financing Obligations not yet due and payable (y) Secured Additional Letter of Credit Facility Obligations not yet due
and payable and (z) contingent indemnification obligations not yet accrued and payable) and (2) all Letters of Credit have expired
or been terminated (other than Letters of Credit that have been cash collateralized or backstopped in an amount, by an institution
and otherwise pursuant to arrangements reasonably satisfactory to the applicable Issuing Bank), all obligations under the Loan
Documents and all security interests under the Security Documents shall be automatically released. In connection with any
termination or release pursuant to this Section 9.14, the Administrative Agent shall execute and deliver to any Loan Party, at such
Loan Party’s expense, all documents that such Loan Party shall reasonably request to file or register in any office, or to
evidence, such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to
or warranty by the Administrative Agent. Each of the Secured Parties irrevocably authorizes the Administrative Agent, at its option
and in its discretion, to effect the releases set forth in this Section.
180
SECTION 9.15. USA
PATRIOT Act Notice. Each Lender, each Issuing Bank and the Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies each Loan Party that, pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information
that identifies such Loan Party, which information includes the name and address of such Loan Party and other information that will allow
such Lender, such Issuing Bank or the Administrative Agent, as applicable, to identify such Loan Party in accordance with the USA PATRIOT
Act, and each Loan Party agrees to provide such information from time to time to such Lender, such Issuing Bank and the Administrative
Agent, as applicable.
SECTION 9.16.
No Fiduciary Relationship. Each of Holdings and the Borrower, on behalf of itself and its subsidiaries, agrees that in connection
with all aspects of the transactions contemplated hereby and any communications in connection therewith, Holdings, the Borrower, the Subsidiaries
and their respective Affiliates, on the one hand, and the Administrative Agent, the Arrangers, the Syndication Agents, the Documentation
AgentsAgent, the
Lenders, the Issuing Banks and their respective Affiliates, on the other hand, will have a business relationship that does not create,
by implication or otherwise, any fiduciary duty on the part of the Administrative Agent, the Arrangers, the Syndication Agents, the Documentation
AgentsAgent, the
Lenders, the Issuing Banks or their respective Affiliates, and no such duty will be deemed to have arisen in connection with any such
transactions or communications. The Administrative Agent, the Arrangers, the Syndication Agents, the Documentation AgentsAgent,
the Lenders, the Issuing Banks and their respective Affiliates may be engaged, for their own accounts or the accounts of customers, in
a broad range of transactions that involve interests that differ from those of Holdings, the Borrower, the Subsidiaries and their respective
Affiliates, and none of the Administrative Agent, the Arrangers, the Syndication Agents, the Documentation AgentsAgent,
the Lenders, the Issuing Banks or any of their respective Affiliates has any obligation to disclose any of such interests to Holdings,
the Borrower, the Subsidiaries or any of their respective Affiliates. To the fullest extent permitted by law, each of Holdings and the
Borrower hereby waives and releases any claims that it or any of its Affiliates may have against the Administrative Agent, the Arrangers,
the Syndication Agents, the Documentation AgentsAgent,
the Lenders, the Issuing Banks or any of their respective Affiliates with respect to any breach or alleged breach of agency or fiduciary
duty in connection with any aspect of any transaction contemplated hereby.
SECTION 9.17. Non-Public
Information. (a) Each Lender acknowledges that all information, including requests for waivers and amendments, furnished by Holdings,
the Borrower or the Administrative Agent pursuant to or in connection with, or in the course of administering, this Agreement will be
syndicate-level information, which may contain MNPI. Each Lender represents to Holdings, the Borrower and the Administrative Agent that
(i) it has developed compliance procedures regarding the use of MNPI and that it will handle MNPI in accordance with such procedures and
applicable law, including Federal, State and foreign securities laws, and (ii) it has identified in its Administrative Questionnaire a
credit contact who may receive information that may contain MNPI in accordance with its compliance procedures and applicable law, including
Federal, State and foreign securities laws.
181
(b) Holdings,
the Borrower and each Lender acknowledge that, if information furnished Holdings or the Borrower pursuant to or in connection with this
Agreement is being distributed by the Administrative Agent through the Platform, (i) the Administrative Agent may post any information
that Holdings or the Borrower has indicated as containing MNPI solely on that portion of the Platform as is designated for Lenders’
employees and representatives willing to receive such MNPI (such employees and representatives, “Private-Siders”);
and (ii) if Holdings or the Borrower has not indicated whether any information furnished by it pursuant to or in connection with this
Agreement contains MNPI, the Administrative Agent reserves the right to post such information solely on that portion of the Platform as
is designated for Private-Siders. Each of Holdings and the Borrower agrees to clearly designate all information provided to the Administrative
Agent by or on behalf of Holdings or the Borrower that is suitable to be made available to Lenders’ public-side employees and representatives
who do not wish to receive MNPI (such employees and representatives, “Public-Siders”), and the Administrative Agent
shall be entitled to rely on any such designation by Holdings and the Borrower without liability or responsibility for the independent
verification thereof.
SECTION 9.18.
Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan
Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability
of any Lender or Issuing Bank 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 Lender or Issuing Bank party hereto that is an Affected
Financial Institution; and
(b)
the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial
Institution, its parent entity, 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.
182
SECTION
9.19. 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 the Borrower in respect of any such sum due from it
to the Administrative Agent or the Lenders 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 of any sum adjudged to be so due in the Judgment Currency, the
Administrative Agent 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 from the Borrower
in the Agreement Currency, the Borrower agree, as a separate obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or the Person to whom such obligation was owing against such loss. If the amount of the Agreement Currency so
purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to
return the amount of any excess to the Borrower (or to any other Person who may be entitled thereto under applicable Law).
SECTION 9.20. Cashless
Settlement. Notwithstanding anything to the contrary contained 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 Borrower, the Administrative Agent and such Lender.
SECTION
9.21. Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee
or otherwise, for Hedging Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit Support”
and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution
power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street
Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”)
in respect of such Supported QFC and QFC Credit Support (with the provision 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). 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.
[Signature
Pages Follow]
183
ANNEX C
AMENDED CREDIT AGREEMENT SCHEDULES
C-1
ANNEX D
AMENDED AND RESTATED COLLATERAL AGREEMENT
SCHEDULES
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+ References
No definition available.
+ Details
Name:
dei_EntityAddressStateOrProvince
Namespace Prefix:
dei_
Data Type:
dei:stateOrProvinceItemType
Balance Type:
na
Period Type:
duration
X
- Definition
A unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityCentralIndexKey
Namespace Prefix:
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Data Type:
dei:centralIndexKeyItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Indicate if registrant meets the emerging growth company criteria.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityEmergingGrowthCompany
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
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X
- Definition
Commission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
No definition available.
+ Details
Name:
dei_EntityFileNumber
Namespace Prefix:
dei_
Data Type:
dei:fileNumberItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Two-character EDGAR code representing the state or country of incorporation.
+ References
No definition available.
+ Details
Name:
dei_EntityIncorporationStateCountryCode
Namespace Prefix:
dei_
Data Type:
dei:edgarStateCountryItemType
Balance Type:
na
Period Type:
duration
X
- Definition
The exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityRegistrantName
Namespace Prefix:
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Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
The Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityTaxIdentificationNumber
Namespace Prefix:
dei_
Data Type:
dei:employerIdItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Local phone number for entity.
+ References
No definition available.
+ Details
Name:
dei_LocalPhoneNumber
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
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.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
+ Details
Name:
dei_PreCommencementIssuerTenderOffer
Namespace Prefix:
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Data Type:
xbrli:booleanItemType
Balance Type:
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Period Type:
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X
- Definition
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.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
+ Details
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dei_PreCommencementTenderOffer
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
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Period Type:
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X
- Definition
Title of a 12(b) registered security.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
+ Details
Name:
dei_Security12bTitle
Namespace Prefix:
dei_
Data Type:
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Balance Type:
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Period Type:
duration
X
- Definition
Name of the Exchange on which a security is registered.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
+ Details
Name:
dei_SecurityExchangeName
Namespace Prefix:
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Data Type:
dei:edgarExchangeCodeItemType
Balance Type:
na
Period Type:
duration
X
- Definition
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.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
-Subsection 12
+ Details
Name:
dei_SolicitingMaterial
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Trading symbol of an instrument as listed on an exchange.
+ References
No definition available.
+ Details
Name:
dei_TradingSymbol
Namespace Prefix:
dei_
Data Type:
dei:tradingSymbolItemType
Balance Type:
na
Period Type:
duration
X
- Definition
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.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
+ Details
Name:
dei_WrittenCommunications
Namespace Prefix:
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