“Floor” means zero.
“Foreign Benefit Plan Event” means, with respect to any Foreign Pension Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable law or in excess of the amount
that would be permitted absent a waiver from applicable Governmental Authority or (b) the failure to make the required contributions or payments, under any applicable law, on or before the due date for such contributions or payments.
“Foreign Pension Plan” means any defined benefit plan sponsored, maintained or contributed to by any Loan Party or any Foreign Subsidiary that under applicable law is required to be funded through a trust
or other funding vehicle other than a trust or funding vehicle maintained exclusively by a Governmental Authority (and for the avoidance of doubt, does not include any third party superannuation fund to which any Australian Loan Party makes
or is obliged to make any contribution).
“Foreign Prepayment Event” has the meaning assigned to such term in Section 2.11(h).
“Foreign Subsidiary” means any Subsidiary that is organized or incorporated under the laws of a jurisdiction other than the United States of America, any State thereof or the District
of Columbia.
“French Loan Party” means a Loan Party incorporated, organized or otherwise formed under the laws of France.
“Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to an L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations
(other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof).
“FSHCO” means any direct or indirect Domestic Subsidiary of Holdings (other than the Borrower) that has no material assets other than Equity Interests and debt, if any, in one or more
direct or indirect Foreign Subsidiaries that are CFCs.
“Funded Debt” means all Indebtedness of Holdings and the Restricted Subsidiaries for borrowed money that (i) matures more than one year from the date of its creation or (ii) matures within one year from
the date of its creation but is renewable or extendable, at the option of Holdings or any such Restricted Subsidiary, to a date more than one year from the date of its creation or (iii) arises under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Loans.
“
Future Parent Entity” has the meaning assigned to such term in
Section 5.01.
“GAAP” means generally accepted accounting principles in the United States of America (and with respect to Loan Parties organized under the laws of the Netherlands, accounting
principles generally applied in the Netherlands), as in effect from time to time; provided, however, that if Holdings notifies the Administrative Agent that Holdings requests an amendment to any provision hereof to eliminate
the effect of any change occurring after the Closing 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) that, in each case, would effect the computation of any financial ratio or financial requirement, or compliance with any covenant, set forth in any Loan Document, 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; provided, further, that if such an amendment is requested by Holdings or the Required Lenders, then the Borrower and the Administrative Agent shall
negotiate in good faith to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light of such change in GAAP or the
application thereof. Notwithstanding any other provision contained herein, (a) 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 FASB Accounting Standards Codification 825-Financial Instruments, or any successor thereto (including pursuant to the FASB Accounting Standards Codification), to value any Indebtedness of Holdings
or any subsidiary at “fair value,” as defined therein and (b) the amount of any Indebtedness under GAAP with respect to Capital Lease Obligations shall be determined in accordance with Section 1.04.
“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 supra-national bodies
such as the European Union or the European Central Bank).
“Granting Lender” has the meaning assigned to such term in Section 9.04(f).
“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 of any other 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 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 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 (d) as
an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of
business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into after the Closing Date in connection with any acquisition or disposition of assets permitted under this Agreement (other than such
obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined in good faith by a Financial Officer. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantee Agreement” means that certain Guaranty Agreement, dated September 22, 2017, among Holdings, the Borrower, the other Loan Parties party thereto and the Administrative Agent.
“Guarantors” has the meaning specified in clause (a) of the definition of “Collateral and Guarantee Requirement.” For avoidance of doubt, the Borrower may, in its sole discretion,
cause any Parent Company or Restricted Subsidiary that is not required to be a Guarantor to Guarantee the Secured Obligations by causing such Parent Company or Restricted Subsidiary to execute a joinder to the Guarantee Agreement
(substantially in the form provided therein or as the Administrative Agent, the Borrower and such Guarantor may otherwise agree), and any such Parent Company or Restricted Subsidiary shall be a Guarantor hereunder for all purposes; provided
that (i) in the case of any Parent Company or Restricted Subsidiary organized in a non-Qualified Jurisdiction, the Administrative Agent shall be reasonably satisfied with the jurisdiction of organization of such Parent Company or Restricted
Subsidiary and (ii) the Administrative Agent shall have received at least two (2) Business Days prior to the effectiveness of such joinder (or such later date as reasonably agreed by the Administrative Agent) all documentation and other
information in respect of such Guarantor required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation.
“Hazardous Materials” means all explosive, radioactive, hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum by-products or distillates, asbestos
or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated as hazardous or toxic (or any other term of similar meaning and regulatory import)
pursuant to any Environmental Law.
“Holdings” as defined in the preamble.
“HSBC” means HSBC Bank USA, National Association.
“IFRS” means international accounting standards as promulgated by the International Accounting Standards Board.
“Immaterial Subsidiary” means any Subsidiary that is not a Material Subsidiary.
“Incremental Cap” shall have the meaning given to such term in Section 2.20.
“Incremental Commitments” has the meaning assigned to such term in Section 2.20(a).
“Incremental Equivalent Debt” has the definition assigned to such term in Section 6.01(a)(xxiii).
“Incremental Facility” shall mean the facility in respect of any Incremental Loan.
“Incremental Facility Amendment” has the meaning assigned to such term in Section 2.20(f).
“Incremental Facility Closing Date” has the meaning assigned to such term in Section 2.20(d).
“Incremental Lender” has the meaning assigned to such term in Section 2.20(c).
“Incremental Loan” has the meaning assigned to such term in Section 2.20(b).
“Incremental Request” has the meaning assigned to such term in Section 2.20(a).
“Incremental Revolving Credit Lender” has the meaning assigned to such term in Section 2.20(c).
“Incremental Revolving Facility” has the meaning assigned to such term in Section 2.20(a).
“Incremental Revolving Loan” has the meaning assigned to such term in Section 2.20(b).
“Incremental Revolving Loan Commitment” has the meaning assigned to such term in Section 2.20(a).
“Incremental Term Commitment” has the meaning assigned to such term in Section 2.20(a).
“Incremental Term Loan” has the meaning assigned to such term in Section 2.20(b).
“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 to the extent the same would appear as a liability on a balance
sheet of such Person prepared in accordance with GAAP,
(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 (i) trade accounts payable in the ordinary course
of business, (ii) any earn-out obligation, purchase price adjustment or similar obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid within sixty (60) days after
being due and payable and (iii) liabilities associated with customer prepayments and deposits),
(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,
(f) to the extent not otherwise included, all Guarantees by such Person of Indebtedness of others,
(g) all Capital Lease Obligations of such Person,
(h) all reimbursement obligations, contingent or otherwise, of such Person as an account party in respect of trade letters of credit and letters of guaranty;
provided that unreimbursed amounts under letters of credit will be counted as Indebtedness three (3) Business Days after such amount is drawn, and
(i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances (other than bankers’ acceptances issued in respect of trade
payables);
provided that the term “Indebtedness” shall not include (i) deferred or prepaid revenue, (ii) purchase price holdbacks in respect of a portion of the purchase price of an asset to
satisfy warranty or other unperformed obligations of the seller, (iii) contingent indemnity and similar obligations incurred in the ordinary course of business, (iv) Indebtedness of any Parent Entity (for which none of Holdings or any
Restricted Subsidiary is liable) appearing on the balance sheet of such Parent Entity solely by reason of push down accounting under GAAP, (v) obligations in respect of operating leases, (vi) obligations under or in respect of a Permitted
Receivables Financing and (vii) current intercompany liabilities.
The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner), to the extent such Person is liable
therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. The amount of Indebtedness of any Person
for purposes of clause (e) above shall (unless such Indebtedness has been assumed by such Person) be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the Fair Market Value of the
property encumbered thereby as determined by such Person in good faith.
“Indemnified Person” has the meaning assigned to such term in Section 9.03(b).
“Indemnified Taxes” means all Taxes, other than Excluded Taxes and Other Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party
under any Loan Document.
“Information” has the meaning assigned to such term in Section 9.12(a).
“Intellectual Property” has the meaning assigned to such term in the U.S. Security Agreement.
“Intellectual Property Security Agreements” has the meaning assigned to such term in the U.S. Security Agreement.
“Intercreditor Agreements” means any Market Intercreditor Agreement, and the Pari Passu Intercreditor Agreement or any other intercreditor agreement that the Administrative Agent
and/or Collateral Agent may enter into pursuant to Section 9.17, as the context may require.
“Interest Election Request” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.07 substantially in the form of Exhibit E
hereto.
“Interest Payment Date” means (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December, (b) with respect to any Term Rate 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 Rate Borrowing with an Interest Period of more than three (3) months’ duration, each day prior to the last day of such Interest Period
that occurs at intervals of three (3) months’ duration after the first day of such Interest Period and (c) to the extent necessary to create a fungible tranche of Term Loans, the date of the incurrence of any Incremental Term Loans.
“Interest Period” means, with respect to any Term Rate 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, 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, (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 and (c) no tenor that has been removed from this
definition pursuant to Section 2.14 shall be available for specification in a Borrowing Request or Interest Election Request. 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.
“Inventory” means all “inventory” (as defined in Article 9 of the UCC regardless of whether the UCC is applicable to such Collateral), including inventory, merchandise, goods and other personal property
that are held for sale or lease or are furnished or are to be furnished under a contract of service, or that constitute raw materials, work in process, finished goods, returned goods, or materials or supplies of any kind used or consumed or
to be used or consumed in the processing, production, packaging, promotion, delivery or shipping of the same, including all supplies and embedded software.
“Investment” means, as to any Person, (a) the purchase or other acquisition of Equity Interests or Indebtedness 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 Indebtedness 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, other than purchases or other acquisitions of inventory, goods, materials, supplies and/or equipment in the ordinary course of business.
The amount, as of any date of determination, of (i) any Investment in the form of a loan or an advance shall be the funded 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 writedowns or write-offs (including as a result of forgiveness of any portion thereof) with respect to such loan or advance after the date thereof, (ii) 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, (iii) 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 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 (iv) any Investment (other than any Investment referred
to in clause (i), (ii) or (iii) 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 (A) the cost of all additions thereto and minus (B) 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 to and received by such investor representing interest, dividends or other distributions in respect of such Investment (to the extent the
amounts referred to in clause (B) 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. For purposes of Section 6.04, 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.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other
nationally recognized rating agency.
“IRS” means the United States Internal Revenue Service.
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit request, and any other document, agreement and instrument entered into by any L/C Issuer and the Borrower (or any subsidiary of the Borrower) or in
favor of the L/C Issuer and relating to such Letter of Credit.
“ITSA” means an agreement between the members of an Australian GST Group which takes effect as an indirect tax sharing agreement under section 444-90 of Schedule 1 of the Australian TAA and complies with the Australian TAA and the Australian GST Act as well as any applicable law, official directive, request, guideline or policy (whether or not
having the force of law) issued in connection with the Australian TAA, any such agreement to be in form and substance reasonably satisfactory to the Administrative Agent.
“Joint Bookrunners” means (i) in respect of the 2024-B Term Facility, HSBC Securities (USA) Inc., Barclays Bank PLC, BNP Paribas Securities Corp., Bank of America, N.A., Deutsche Bank
Securities Inc., Goldman Sachs Bank USA, Royal Bank of Canada and Banco Santander, S.A., New York Branch and (ii) in respect of the 2024 Other Term Facility, HSBC Securities (USA) Inc., Barclays Bank PLC, BNP Paribas Securities Corp., BofA
Securities, Inc., Citibank N.A., Deutsche Bank Securities Inc., and UBS Securities LLC.
“Judgment Currency” has the meaning assigned to such term in Section 9.14(b).
“Junior Debt” Indebtedness of any Loan Party that by its terms is contractually subordinated in right of payment to the Secured Obligations.
“L/C Advance” means, with respect to each Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date required under Section 2.04(d)(i) or refinanced as a
Revolving Loan.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.
“L/C Exposure” means at any time the sum of (a) the aggregate undrawn amount of all Letters of Credit outstanding at such time and (b) the aggregate principal amount of all L/C Advances that have not yet
been reimbursed at such time. The L/C Exposure of any Lender at any time means its Applicable Percentage of the aggregate L/C Exposure at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has
expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the International Standard Practices, International Chamber of Commerce No. 590, or by the reason of Article 36 of UCP 600 being
excluded as a governance, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“L/C Issuer” means, with respect to Letters of Credit the Persons listed on Schedule 1.01(b), together with their respective Affiliates, successors and permitted assigns in such capacity and any
Revolving Lender (including any Person who is a Revolving Lender as of the date such Person becomes an L/C Issuer but subsequently, after agreeing to become an L/C Issuer, ceases to be a Revolving Lender and is subject to Section 2.04(m))
which, at the request of the Borrower, and with the consent of the Administrative Agent, agrees in such Revolving Lender’s sole discretion to become an L/C Issuer for the purposes of issuing such Letter of Credit, together with its
Affiliates, permitted successors and assigns in such capacity.
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all
L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.13. For all purposes of this Agreement, if on
any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so
remaining available to be drawn.
“L/C Overnight Rate” means for any day, the greater of (i) the Federal Funds Effective Rate and (ii) an overnight rate determined by the applicable L/C Issuer in accordance with banking industry rules on
interbank compensation.
“Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest
maturity or expiration date of any Term Loan, Revolving Loan, Incremental Facility, any Other Term Loan, any Other Term Commitment, any Other Revolving Loan or any Other Revolving Commitment, in each case as extended in accordance with this
Agreement from time to time.
“LCA Election” has the meaning assigned to such term in Section 1.08(a).
“LCA Test Date” has the meaning assigned to such term in Section 1.08(a).
“Lead Arrangers” means, (i) in respect of the 2024-B Term Facility, HSBC Securities (USA) Inc., Barclays Bank PLC, BNP Paribas Securities Corp., Bank of America, N.A., Deutsche Bank
Securities Inc., Goldman Sachs Bank USA, Royal Bank of Canada and Banco Santander, S.A., New York Branch and (ii) in respect of the 2024 Other Term Facility, HSBC Securities (USA) Inc., Barclays Bank PLC, BNP Paribas Securities Corp., BofA
Securities, Inc., Citibank N.A., Deutsche Bank Securities Inc., and UBS Securities LLC.
“Lenders” means the Term Lenders, the Revolving Lenders and, as the context requires, includes an L/C Issuer, and any other Person that shall have become a party hereto as a lender pursuant to an
Assignment and Assumption, an Incremental Facility Amendment or a Refinancing Amendment, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Letter of Credit” means any letter of credit issued hereunder. A Letter of Credit shall be a standby letter of credit and shall be governed by the laws of the State of New York, in each case, unless
otherwise agreed to by the applicable L/C Issuer.
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by any L/C Issuer.
“Letter of Credit Commitment” means each L/C Issuer’s share of the L/C Sublimit expressed as a percentage on Schedule 2.01(b).
“Letter of Credit Expiration Date” means the day that is five Business Days prior to the Revolving Commitment Termination Date then in effect (or, if such day is not a Business Day, the next preceding
Business Day).
“Letter of Credit Fee” as defined in Section 2.04(i).
“Letter of Credit Sublimit” means an amount equal to the lesser of $175,000,000 and the aggregate unused amount of the Revolving Commitments in effect. The Letter of Credit Sublimit is part of, and not in
addition to, the Revolving Commitments.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge, assignment by way of security, ‘security interest’ as
defined in the Australian PPS Law or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing) relating to such asset.
“Limited Condition Transaction” means any acquisition (including by way of merger) or Investment permitted hereunder by Holdings or one or more of its Restricted Subsidiaries of any
assets, business or Person permitted to be acquired hereunder, in each case whose consummation is not conditioned on the availability of, or on obtaining, third-party financing.
“Loan Document Obligations” means (a) the due and punctual payment by the Borrower of (i) the principal of and interest at the applicable rate or rates provided in this Agreement
(including interest accruing during the pendency of any bankruptcy, insolvency, administration, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans or any Letter of Credit,
when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) all other monetary obligations of the Borrower under or pursuant to this Agreement and each of the other Loan Documents or
with respect to any Letter of Credit, including obligations to pay fees, expense reimbursement obligations and indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations
incurred during the pendency of any bankruptcy, insolvency, administration, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), (b) the due and punctual payment and performance of all
other obligations of the Borrower under or pursuant to this Agreement and each of the other Loan Documents or with respect to any Letter of Credit and (c) the due and punctual payment and performance of all the obligations of each other Loan
Party under or pursuant to this Agreement and each of the other Loan Documents or with respect to any Letter of Credit (including interest and monetary obligations incurred during the pendency of any bankruptcy, insolvency, administration,
receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding).
“Loan Documents” means this Agreement, any Incremental Facility Amendment, any Refinancing Amendment, any Loan Modification Agreement, the Guarantee Agreement, the Collateral
Agreements, the Intercreditor Agreements any promissory notes delivered pursuant to Section 2.09(e).
“Loan Increase” means a Term Loan Increase or Revolving Commitment Increase.
“Loan Modification Agreement” means a Loan Modification Agreement, in form reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or
more Accepting Lenders, effecting one or more Permitted Amendments and such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.24.
“Loan Modification Offer” has the meaning assigned to such term in Section 2.24(a).
“Loan Parties” means Holdings, the Borrower and the Subsidiary Loan Parties.
“Loans” means the loans made by the Lenders to the Borrower in the form of a Term Loan or Revolving Loan pursuant to this Agreement.
“Market Intercreditor Agreement” means (a) to the extent executed in connection with the incurrence of Indebtedness secured by Liens on the Collateral which are intended to rank equal
in priority to the Liens on the Collateral securing the Secured Obligations (but without regard to the control of remedies), a customary intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent and the
Collateral Agent and Holdings, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank equal in priority to the Liens on the Collateral securing the Secured Obligations (but without regard to the
control of remedies) and (b) to the extent executed in connection with the incurrence of Indebtedness secured by Liens on the Collateral which are intended to rank junior to the Liens on the Collateral securing the Secured Obligations a
customary intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent and Holdings, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall
rank junior to the Liens on the Collateral securing the Secured Obligations.
“Master Agreement” has the meaning assigned to such term in the definition of “Swap Agreement.”
“Material Adverse Effect” means, a circumstance or condition that would materially and adversely affect (in each case after taking into account all relevant factors or circumstances including any
insurance, warranty, indemnity or other resources available to Holdings and its Restricted Subsidiaries or right of recourse against any third party with respect to the relevant circumstance or condition) (i) the business, assets, financial
condition or results of operations and any obligation of any person in force to provide any equity investment in each case, of Holdings, the Borrower or Holdings and the Restricted Subsidiaries, taken as a whole, (ii) the ability of the Loan
Parties (taken as a whole) to perform their payment obligations under the applicable Loan Documents or (iii) the rights and remedies (taken as a whole) of the Administrative Agent and the Lenders under the applicable Loan Documents.
“Material Indebtedness” means (without duplication) Indebtedness for borrowed money (other than the Loan Document Obligations), Capital Lease Obligations, unreimbursed obligations for
letter of credit drawings and financial guarantees (other than ordinary course of business contingent reimbursement obligations) to the extent not reimbursed within five Business Days following the drawing thereof or obligations in respect of
one or more Swap Agreements, of any one or more of Holdings and the Restricted Subsidiaries in an aggregate outstanding principal amount exceeding $75,000,000; provided that in no event shall any Permitted Receivables Financing be
considered Material Indebtedness for any purpose. For purposes of determining Material Indebtedness, the “principal amount” of the obligations in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect
to any netting agreements and/or collateral posted) that Holdings or any Restricted Subsidiary would be required to pay if such Swap Agreement were terminated at such time.
“Material Non-U.S. Real Property” means each parcel of real property and the improvements thereon owned in fee by a Non-U.S. Loan Party (which for the avoidance of doubt does not include mining tenements)
located in a jurisdiction other than the United States with an individual Fair Market Value of greater than $20,000,000 as determined on the Closing Date for existing real property and on the date of acquisition for any after-acquired real
property (or the date of substantial completion of any material improvement thereon or new construction thereof).
“Material Real Property” means, collectively, Material Non-U.S. Real Property and Material U.S. Real Property.
“Material Subsidiary” means each Restricted Subsidiary that, as of the last day of the most recently ended Test Period, had revenues or total assets (determined on a consolidated basis
for such Restricted Subsidiary and its Restricted Subsidiaries) for such quarter in excess of 10.0% of the consolidated revenues or total assets, as applicable, of Holdings and the Restricted Subsidiaries for such Test Period; provided that if at any time and from time to time after the date which is 30 days after the Closing Date (or such longer period as the Administrative Agent may agree in its reasonable discretion), all
Restricted Subsidiaries that are not Guarantors solely because they do not meet the forgoing 10% threshold comprise in the aggregate more than (when taken together with the total assets of the Restricted Subsidiaries of such Subsidiaries at
the last day of the most recent Test Period) 10.0% of total assets of the Holdings and the Restricted Subsidiaries as of the last day of the most recent Test Period or more than (when taken together with the gross revenues of the Restricted
Subsidiaries of such Subsidiaries for such Test Period) 10.0% of the consolidated gross revenues of Holdings and the Restricted Subsidiaries for such Test Period, then the Borrower shall, not later than sixty (60) days after the date by which
financial statements for such Test Period were required to be delivered pursuant to this Agreement (or such longer period as the Administrative Agent may agree in its reasonable discretion), (i) designate in writing to the Administrative
Agent one or more Restricted Subsidiaries as “Material Subsidiaries” to the extent required such that the foregoing condition ceases to be true and (ii) comply with the provisions of Section 5.13 with respect to any such Restricted
Subsidiaries (to the extent applicable), in each case, other than any Restricted Subsidiaries that otherwise constitute Excluded Subsidiaries.
“Material U.S. Real Property” means each parcel of real property and the improvements thereon owned in fee by a U.S. Loan Party located in the United States with an individual Fair
Market Value of greater than $20,000,000, as determined on the Closing Date for existing real property and on the date of acquisition for any after-acquired real property (or the date of substantial completion of any material improvement
thereon or new construction thereof).
“Maturity Date” means (i) with respect to any Term Loans, the applicable Term Maturity Date and (ii) with respect to any Revolving Loans, the applicable Revolving Maturity Date;
provided that, in each case, if such day is not a Business Day, the applicable Maturity Date shall be the Business Day immediately preceding such day.
“Maturity Limitation Excluded Amount” means an aggregate amount equal to the greater of (x) $700,000,000 and (y) 100% of Consolidated EBITDA for the most recently completed Test Period
(calculated on a Pro Forma Basis), less the aggregate outstanding principal amount of Credit Agreement Refinancing Indebtedness, Incremental Facilities, Incremental Equivalent Debt, Permitted Debt Exchange Notes, Ratio Indebtedness
and Permitted Refinancings with respect to the foregoing, in each case to the extent incurred in reliance on such Maturity Limitation Excluded Amount (it being understood and agreed that Permitted Refinancings incurred in reliance on the
Maturity Limitation Excluded Amount may exceed the remaining amount available to be utilized pursuant to this definition above by an amount not to exceed the amounts set forth in clause (a)(i) of the definition of Permitted Refinancing).
“Maximum Tender Condition” has the meaning set forth in Section 2.25(b).
“MFN Adjustment” has the meaning provided in Section 2.20(e)(iii).
“MFN Conditions” means, with respect to any Incremental Term Loan that is subject to the MFN Adjustment, that such Incremental Term Loan: (a) has a maturity date within 12 months after the Term Maturity
Date for the Refinancing Term Loans, (b) is in the form of broadly syndicated Dollar denominated Incremental Term Loans, (c) is incurred under Starter Basket or Incremental Prepayment Amount of the Incremental Cap, (d) is incurred within 12
months after the Closing Date, (e) is not incurred in connection with a Permitted Acquisition or similar investment, (f) is in an aggregate principal amount equal to or greater than the greater of (x) $700,000,000 and (y) 100% of Consolidated
EBITDA of the most recently ended Test Period and (g) is secured on a pari passu basis with the Liens securing the Refinancing Term Loans hereunder.
“Minimum Tender Condition” has the meaning set forth in Section 2.25(b).
“Mining Mortgage” means a mortgage granting a Lien on any Mining Property to secure the Secured Obligations.
“Mining Property” means (i) each mining tenement (as defined or described in any Requirement of Law in respect of mining, exploration or prospecting) held by a Loan Party, (ii) all mineral sands and other
metals and minerals (as defined or described in any Requirement of Law in respect of mining, exploration or prospecting) and including precious stones, buildings, improvements, structures, systems, fixtures, plant, machinery, tools and other
personal property from time to time in or on each mining tenement described in clause (i) above or the area of the land the subject of that mining tenement and (iii) any certificate, registration, title or other evidence of ownership
of, or rights to, anything described in a clause above.
“MIRE Event” means if there are any Mortgaged Properties at such time, any increase, extension of the maturity or renewal of any of the Commitments or Loans (including an Incremental
Facility Amendment, Loan Modification Agreement, Permitted Amendment or Refinancing Amendment, but excluding for the avoidance of doubt (a) any continuation or conversion of borrowings or (b) the making of any Loan).
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Mortgage” means a mortgage, Mining Mortgage, deed of trust, assignment of leases and rents or other security document granting a Lien on any Mortgaged Property or any other parcel of
real property and the improvements thereon in respect of which a Lien is required by the Loan Documents to be granted to secure the Secured Obligations (including any Mining Property), provided, however, in the event any
Mortgaged Property is located in a jurisdiction which imposes mortgage recording taxes or similar fees, the applicable Mortgage shall not secure an amount in excess of 100% of the Fair Market Value of such Mortgaged Property.
“Mortgaged Property” means each parcel of Material U.S. Real Property and the improvements thereon owned in fee by a Loan Party with respect to which a Mortgage is granted pursuant to
the Collateral and Guarantee Requirement, Section 5.13, Section 5.14 and Section 5.17 (if any).
“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which a Loan Party or any ERISA Affiliate makes or is obligated to make contributions or
with respect to which any Loan Party or ERISA Affiliate could have liability under Section 4212(c) of ERISA.
“Net Proceeds” means, with respect to any event, (a) the proceeds received in respect of such event in cash or Cash Equivalents, including (i) any cash or Cash Equivalents 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 earn-out (but excluding any interest payments), but
only as and when received, and (ii) in the case of a Recovery Event, insurance proceeds or condemnation or similar awards that are actually received, minus (b) the sum of (i) all fees and out-of-pocket expenses paid by Holdings and
the Restricted Subsidiaries in connection with such event (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) (x) in the case of a Disposition, the amount of all payments that are permitted hereunder and are made by
Holdings and the Restricted Subsidiaries as a result of such event to repay Indebtedness permitted to be incurred and outstanding hereunder (other than (1) the Loans or (2) other pari passu or junior secured Indebtedness that is secured by a
Lien on the Collateral and incurred or outstanding pursuant to Section 6.01(a)) and secured by such asset or otherwise subject to mandatory prepayment as a result of such event, (y) in the case of a Disposition, the pro rata portion
of net cash proceeds thereof (calculated without regard to this clause (y)) attributable to minority interests and not available for distribution to or for the account of Holdings and the Restricted Subsidiaries as a result thereof
and (z) the amount of any liabilities directly associated with such asset and retained by Holdings or the Restricted Subsidiaries and (iii) the amount of all Taxes paid (or reasonably estimated to be payable), and the amount of any reserves
established by the Borrower and the Restricted Subsidiaries to fund contingent liabilities reasonably estimated to be payable, that are directly attributable to such event, provided that any reduction at any time in the amount of any
such reserves (other than as a result of payments made in respect thereof) shall be deemed to constitute the receipt by the Borrower at such time of Net Proceeds in the amount of such reduction.
“Net Short Lender” has the meaning specified in Section 9.02(h).
“New Term Lender” has the meaning assigned to such term in the Amendment.
“New Zealand Dollars” shall mean the lawful currency of New Zealand.
“Non-Accepting Lender” has the meaning assigned to such term in Section 2.24(c)
“Non-Cash Compensation Expense” means any non-cash expenses and costs that result from the issuance of stock-based awards, partnership interest-based awards and similar incentive based
compensation awards or arrangements.
“Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(d).
“Non-US Loan Party” means any Loan Party that is not organized in or under the laws of the United States, any State thereof, or the District of Columbia.
“Not Otherwise Applied” means, with reference to the Available Amount, that such amount was not previously (or concurrently) applied pursuant to Section 6.01(a)(xxvi), 6.04(o)(B),
6.08(a)(viii) or 6.08(b)(iv).
“Notice of Prepayment” a notice of prepayment in the form of Exhibit F hereto or such other form that is acceptable to the Administrative Agent.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.
“Organizational Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement (or equivalent or comparable constitutive documents with respect
to any non-U.S. jurisdiction); and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or
articles of formation or organization of such entity.
“Other Loans” means one or more Classes of Loans that result from a Refinancing Amendment or Loan Modification Agreement.
“Other Revolving Commitment” means one or more Classes of revolving credit commitments hereunder or extended 2024 Other Revolving Commitments or Incremental Revolving Commitments that result from a Refinancing Amendment or a Loan
Modification Agreement.
“Other Revolving Loans” means the Loans made pursuant to any Other Revolving Commitment or a Loan Modification Agreement.
“Other Taxes” means any and all present or future recording, stamp, court or documentary, intangible, filing, or similar Taxes arising from any payment made under any Loan Document or
from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are imposed as a result of a
present or former connection between the recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments
under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan Document) and are imposed with respect to an assignment, other
than an assignment pursuant to Section 2.19.
“Other Term Commitments” means one or more Classes of term loan commitments hereunder that result from a Refinancing Amendment or a Loan Modification Agreement.
“Other Term Loans” means one or more Classes of term loans that result from a Refinancing Amendment or a Loan Modification Agreement.
“Outstanding Amount” means (i) with respect to Loans on any date, the Dollar amount or the Dollar Equivalent amount, as applicable, of the aggregate outstanding principal amount thereof after giving effect
to any borrowings and prepayments or repayments of Loans occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount or the Dollar Equivalent amount, as applicable, of the aggregate outstanding amount of such
L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by any
Borrower of Unreimbursed Amounts.
“Parent Entity” means any Person that is a direct or indirect parent of Holdings and of which Holdings is a direct or indirect wholly-owned subsidiary.
“Pari Passu Intercreditor Agreement” means that certain First Lien Pari Passu Intercreditor Agreement (as amended, restated, amended and restated, supplemented or otherwise modified from time to time)
dated as of May 1, 2020, among Bank of America, N.A., Wilmington Trust, National Association, and each additional representative and collateral agent from time to time party thereto, including the Administrative Agent, and acknowledged and
agreed to by the Loan Parties party thereto.
“Participant” has the meaning assigned to such term in Section 9.04(c)(i).
“Participant Register” has the meaning assigned to such term in Section 9.04(c)(iii).
“Participating Member State” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to
Economic and Monetary Union.
“Payoff Letter” has the meaning assigned to such term in Section 4.01(l).
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Perfection Requirements” means the need for filings or registrations or the taking of actions needed to establish control necessary or, in the reasonable judgment of the
Administrative Agent or Collateral Agent, advisable, in each applicable jurisdiction, to create or perfect Liens over the Collateral granted by the Loan Parties in favor of the Secured Parties and the delivery to the Collateral Agent of any
stock certificate or other certificate of title required to be delivered pursuant to the applicable Loan Documents, together with instruments of transfer executed in blank.
“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
“Permitted Acquisition” means an Acquisition Transaction together with other Investments necessary to consummate such Acquisition Transaction; provided that:
(a) except in the case of a Limited Condition Transaction (in which case, compliance with this clause (a) shall be determined in accordance with Section
1.08(a)), after giving Pro Forma Effect to any such Acquisition Transaction or Investment, no Event of Default shall have occurred and be continuing,
(b) the business of such Person, or such assets, as the case may be, will be a Similar Business, and
(c) such acquired person becomes a Restricted Subsidiary.
“Permitted Amendment” means an amendment to this Agreement and, if applicable the other Loan Documents, effected in connection with a Loan Modification Offer pursuant to Section
2.24, providing for an extension of a maturity date applicable to the Loans and/or Commitments of the Accepting Lenders and, in connection therewith, (a) a change in the Applicable Rate and/or modifying the amortization schedule with
respect to the Loans and/or Commitments of the Accepting Lenders, (b) a change in the fees payable to, or the inclusion of new fees to be payable to, the Accepting Lenders and/or (c) amended covenants or other provisions shall be
substantially identical to or not more favorable (when taken as a whole and as reasonably determined by the Borrower) to the Accepting Lenders than the Indebtedness subject to such Loan Modification Offer unless (i) also added for the benefit
of the Loans remaining outstanding after the issuance or incurrence of such Indebtedness (ii) only applicable after the Latest Maturity Date at the time of such refinancing, (iii) as reasonably agreed by the Administrative Agent or (iv)
reflect market terms and conditions (taken as a whole) at the time of occurrence, issuance or effectiveness (as determined in good faith by the Borrower).
“Permitted Debt Exchange” has the meaning assigned to such term in Section 2.25(a).
“Permitted Debt Exchange Notes” has the meaning assigned to such term in Section 2.25(a).
“Permitted Debt Exchange Offer” has the meaning assigned to such term in Section 2.25(a).
“Permitted Encumbrances” means:
(a) Liens for taxes, assessments or other governmental charges that are not delinquent for a period of more than (x) in the case of any such Liens on any assets of
any Person organized under the laws of the United States, the United Kingdom or Australia or any state, province or other subdivision thereof, 30 days and (y) otherwise, 60 days, or that are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP, in each case, the nonpayment of which could not reasonably be expected to result in a
Material Adverse Effect;
(b) Liens imposed by statutory or common law, such as landlords’ carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or construction contractors’
Liens and other similar Liens, arising in the ordinary course of business that secure amounts not overdue for a period of more than (x) in the case of any such Liens on any assets of any Person organized under the laws of the United States,
the United Kingdom or Australia or any state, province or other subdivision thereof, 30 days and (y) otherwise, 60 days, or, in each such case, if more than 30 days (in the case of clause (x)) and 60 days (in the case of clause (y)) overdue,
are unfiled and no other action has been taken to enforce such Liens or that are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the
applicable Person in accordance with GAAP, in each case so long as such Liens could not reasonably be expected to individually or in the aggregate have a Material Adverse Effect;
(c) (i) Liens incurred or pledges or deposits made in the ordinary course of business in connection with workers’ compensation, payroll taxes, unemployment
insurance and other social security legislation or (ii) pledges or deposits made in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit
or bank guarantees or similar instruments for the benefit of) insurance carriers providing property, casualty or liability insurance to Holdings or any Restricted Subsidiary or otherwise supporting the payment of items of the type set forth
in the foregoing clause (i);
(d) Liens incurred or deposits made to secure the performance of tenders, bids, trade contracts (other than for the payment of Indebtedness), governmental
contracts and leases (other than Capital Lease Obligations), statutory obligations, surety, stay, customs and appeal bonds, performance bonds, bankers’ acceptance facilities and other obligations of a like nature (including those to secure
health, safety and environmental obligations) and obligations in respect of letters of credit, bank guarantees or similar instruments that have been posted to support the same, in each case incurred in the ordinary course of business or
consistent with past practices;
(e) easements, rights-of-way, restrictions, covenants, conditions, encroachments, protrusions, zoning restrictions and other similar encumbrances, matters that are
or would be reflected on a survey of any real property, irregularities of title, title defects affecting real property that, in the aggregate, do not materially interfere with the ordinary conduct of the business of Holdings and the
Restricted Subsidiaries, taken as a whole;
(f) (i) Liens securing, or otherwise arising from, judgments, awards attachments and/or decrees and notices of lis pendens
and associated rights relating to litigation being contested in good faith not constituting an Event of Default under Section 7.01(i) and (ii) any pledge and/or deposit securing any settlement of litigation;
(g) Liens on goods the purchase price of which is financed by a documentary letter of credit issued for the account of Holdings or any of the Restricted
Subsidiaries or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements relating to letters of credit, bank guarantees and other similar instruments; provided that such Lien secures only the obligations of Holdings or such Restricted Subsidiaries in respect of such letter of credit, bank guarantee or other similar instrument to the extent such obligations
are permitted by Section 6.01;
(h) rights of setoff, banker’s lien, netting agreements and other Liens arising by operation of law or by of the terms of documents of banks or other financial
institutions in relation to the maintenance of administration of deposit accounts, securities accounts or cash management arrangements or in connection with the issuance of letters of credit, bank guarantees or other similar instruments; and
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(i) Liens arising from precautionary Uniform Commercial Code financing statements, Australian PPS Law financing statements or any similar filings made in respect
of operating leases or consignment or bailee arrangements entered into by Holdings or any of the Restricted Subsidiaries.
“Permitted First Priority Refinancing Debt” means any secured Indebtedness incurred by Holdings or any other Loan Party in the form of one or more series of senior secured notes, bonds
or debentures or senior secured loans; provided that (i) such Indebtedness is secured by the Collateral on an equal priority basis (but without control of remedies) with the Loan Document Obligations, (ii) such Indebtedness satisfies
the applicable requirements set forth in the provisos to the definition of “Credit Agreement Refinancing Indebtedness,” and (iii) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to the Pari
Passu Intercreditor Agreement or a Market Intercreditor Agreement. Permitted First Priority Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Receivables Financing” means a securitization or other similar financing (including any factoring program) of Permitted Receivables Financing Assets that is non-recourse to
Holdings, the Borrower and the Restricted Subsidiaries (except for (w) recourse to any Foreign Subsidiaries that own the assets underlying such financing (or have sold such assets in connection with such financing), (x) any customary limited
recourse pursuant to the Standard Securitization Undertakings or, to the extent applicable only to non-Loan Parties, recourse that is customary in the relevant local market, (y) any performance undertaking or Guarantee, to the extent
applicable only to non-Loan Parties, that is customary in the relevant local market, and (z) an unsecured parent Guarantee by Holdings or any Restricted Subsidiary that is a parent company of a Foreign Subsidiary of obligations of Foreign
Subsidiaries, and, in each case, reasonable extensions thereof).
“Permitted Receivables Financing Assets” means (a) any accounts receivable, loan receivables, mortgage receivables, receivables or loans relating to the financing of insurance
premiums, royalty, patent or other revenue streams and other rights to payment or related assets and the proceeds thereof and (b) all assets securing or related to any such receivable or asset, all contracts and contract rights, guarantees or
other obligations in respect of any such receivable or asset, lockbox accounts and records with respect to any such receivable or assets and any other assets (including inventory and proceeds thereof) customarily transferred (or in respect of
which security interests are customarily granted) together with receivables or assets in connection with a securitization, factoring or receivables financing or sale transaction.
“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person (such Indebtedness, the “Refinanced
Debt”); provided that
(a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Refinanced Debt
except (i) by an amount equal to unpaid accrued interest and premium (including tender premiums) thereon plus underwriting discounts, other amounts paid, and fees, commissions and expenses (including upfront fees, original issue discount or
initial yield payments) incurred, in connection with such modification, refinancing, refunding, renewal or extension, (ii) by an amount equal to any existing revolving commitments unutilized thereunder to the extent that the portion of any
existing and unutilized revolving commitment being refinanced was permitted to be drawn under Section 6.01 immediately prior to such refinancing (other than by reference to a Permitted Refinancing) and such drawing shall be deemed to
have been made and (iii) to the extent such excess amounts is otherwise permitted to be incurred under Section 6.01,
(b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 6.01(a)(v), (vii), (a)(xiv)
(other than in respect of Indebtedness for borrowed money), (a)(xvii) or to the extent permitted pursuant to the Maturity Limitation Excluded Amount, Indebtedness resulting from such modification, refinancing, refunding, renewal or
extension has a final maturity date equal to or later than the earlier of (i) the Term Maturity Date for the 2024-B Term Facility or the Other Term Loans Facility and (ii) the final maturity date of the Refinanced Debt;
(c) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 6.01(a)(v), (vii), (a)(xiv) (other than in
respect of Indebtedness for borrowed money), (a)(xvii) or to the extent permitted pursuant to the Maturity Limitation Excluded Amount, Indebtedness resulting from such modification, refinancing, refunding, renewal or extension has a
Weighted Average Life to Maturity equal to or greater than the shorter of (i) the Weighted Average Life to Maturity of the 2024-B Term Facility or the Other Term Loans Facility and (ii) the Weighted Average Life to Maturity of the Refinanced
Debt,
(d) if the Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Loan Document Obligations, Indebtedness resulting from such
modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Loan Document Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Refinanced
Debt,
(e) such Permitted Refinancing is not secured by a Lien on any assets other than the collateral securing, and with no higher priority than, the Refinanced Debt (unless such Lien is
permitted by a separate provision of Section 6.02);
(f) if unsecured, such Indebtedness shall remain unsecured (unless permitted to be secured by a separate provision of Section 6.02) and
(g) no Loan Party that was not an obligor with respect to the Refinanced Debt shall be an obligor under the Permitted Refinancing (unless permitted to by guaranteed by a separate
provision of Section 6.01(a) and 6.04) and if the Refinanced Debt was (or was required to be) subject to a Market Intercreditor Agreement and/or the Pari Passu Intercreditor Agreement, the holders of such Permitted Refinancing
(if such Indebtedness is secured) or their authorized representative on their behalf, shall become party to such Market Intercreditor Agreement and/or the Pari Passu Intercreditor Agreement, in each case providing for the same (or lesser)
lien priority. For the avoidance of doubt, it is understood and agreed that a Permitted Refinancing includes successive Permitted Refinancings of the same Indebtedness.
“Permitted Reorganization” means, to the extent not otherwise permitted under this Agreement, any corporate reorganization (or similar transaction or event) undertaken (each, a “Reorganization”),
and each step reasonably required to effect such Reorganization, provided that, in connection therewith, (x) any assets distributed that were, immediately prior to such Reorganization, owned by Holdings and its Restricted Subsidiaries,
continue to be owned by Holdings and its Restricted Subsidiaries, (y) any assets that were, immediately prior to such Reorganization, owned by a Loan Party prior to such Reorganization, continue to be owned by a Loan Party after giving effect
to such Reorganization, and (z) any assets subject to a Lien in favor of the Collateral Agent immediately prior to such Reorganization shall be subject to a Lien in favor of the Collateral Agent after giving effect to such Reorganization; provided
that, such Reorganization shall only qualify as a Permitted Reorganization if (w) no Default or Event of Default is continuing, (x) such Reorganization does not impair the Guarantee or the security interests of the Lenders in any material
respect and is otherwise not adverse to the Lenders in any material respect, (y) the Borrower shall not change its jurisdiction of organization or formation in connection therewith and (z) after giving effect to such Restructuring, Holdings
and its Restricted Subsidiaries otherwise comply with Section 5.14.
“Permitted Second Priority Refinancing Debt” means any secured Indebtedness incurred by Holdings or any other Loan Party in the form of one or more series of junior lien secured notes,
bonds or debentures or junior lien secured loans; provided that (i) such Indebtedness is secured by the Collateral on a junior basis with the Loan Document Obligations, (ii) such Indebtedness satisfies the applicable requirements set
forth in the provisos to the definition of “Credit Agreement Refinancing Indebtedness,” and (iii) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to a Market Intercreditor Agreement.
Permitted Second Priority Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Transferees” means, with respect to any Person that is a natural person (and any Permitted Transferee of such Person), (a) such Person’s immediate family, including his or
her spouse, ex-spouse, children, step-children and their respective lineal descendants, (b) any trust or other legal entity the beneficiary of which is such Person’s immediate family, including his or her spouse, ex-spouse, children,
stepchildren or their respective lineal descendants and (c) without duplication with any of the foregoing, such Person’s heirs, executors and/or administrators upon the death of such Person and any other Person who was an Affiliate of such
Person upon the death of such Person and who, upon such death, directly or indirectly owned Equity Interests in Holdings.
“Permitted Unsecured Refinancing Debt” means unsecured Indebtedness incurred by Holdings or any other Loan Party in the form of one or more series of senior unsecured notes, bonds or
debentures or loans; provided that (i) such Indebtedness satisfies the applicable requirements set forth in the provisos to the definition of “Credit Agreement Refinancing Indebtedness” and (ii) such Indebtedness is not secured by any
Lien on any property or assets of Holdings or any Restricted Subsidiary. Permitted Unsecured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“
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) which 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 a Loan Party or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.
“Planned Expenditures” has the meaning assigned to such term in clause (b)(vii) of the definition of “Excess Cash Flow”.
“Platform” has the meaning assigned to such term in Section 5.01.
“Prepayment” has the meaning assigned to such term in the recitals.
“Prepayment Event” means:
(a) any sale, transfer or other Disposition of any property or asset of Holdings or any Restricted
Subsidiary pursuant to
Section 6.05(j) or the occurrence of any Recovery Event (or series of related Dispositions or Recovery Events) resulting, in each case, in Net Proceeds exceeding the greater of (x) $35,000,000 or (y) 5.00% of
Consolidated EBITDA, in the aggregate in any fiscal year (the “
Disposal Basket”). For the avoidance of doubt, only Net Proceeds in excess of such amount shall be subject to the mandatory prepayment provisions set forth in
Section
2.11(b) and no Prepayment Event shall occur pursuant to this clause (a) in any fiscal year until the Net Proceeds received during such fiscal year exceed the Disposal Basket; or
(b) the incurrence by Holdings or any Restricted Subsidiary of any Indebtedness, other than Indebtedness permitted under Section 6.01 (other than Permitted
Unsecured Refinancing Debt, Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt constituting Secured Obligations) or permitted by the Required Lenders pursuant to Section 9.02.
“Prime Rate” means the rate of interest per annum published by the Wall Street Journal from time to time as the “prime rate”.
“Pro Forma Basis,” “Pro Forma Compliance” and “Pro Forma Effect” means, with respect to compliance with any test or covenant or calculation of any ratio hereunder, the
determination or calculation of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with Section 1.14.
“Pro Forma Financial Statements” has the meaning assigned to such term in Section 4.01.
“Proceeding” has the meaning assigned to such term in Section 9.03(b).
“Proposed Change” has the meaning assigned to such term in Section 9.02(d).
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning assigned to such term in Section 5.01.
“Public Offering” means the issuance by Holdings or any Parent Entity of its common Equity Interests in a public offering pursuant to an effective registration statement filed with the
SEC or any other comparable Governmental Authority in any other applicable jurisdiction (whether alone or in connection with a further public offering).
“Qualified Equity Interests” means Equity Interests other than Disqualified Equity Interests.
“Qualified Jurisdiction” means the United States; any State thereof, or the District of Columbia; France; England and Wales; the Commonwealth of Australia; the Netherlands or any other jurisdiction agreed
to by the Administrative Agent and the Borrower, in their respective sole discretion.
“Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by any Loan Party in any real property.
“Receivables Subsidiary” means any Special Purpose Entity established in connection with a Permitted Receivables Financing and any other subsidiary (other than any Loan Party) involved
in a Permitted Receivables Financing which is not permitted by the terms of such Permitted Receivables Financing to guarantee the Secured Obligations or provide Collateral.
“Recovery Event” means the receipt by Holdings or any of its Restricted Subsidiaries of any insurance proceeds in respect of any equipment, fixed assets or real property or
condemnation awards payable (i) by reason of theft, loss, physical destruction, damage, taking or any other similar event with respect to any Collateral (but not by reason of any loss of revenues or interruption of business or operations
caused thereby) and (ii) under any policy of insurance, in each case to the extent such proceeds or awards do not constitute reimbursement or compensation for amounts previously paid by Holdings or any of its Restricted Subsidiaries in
respect of any such event but not by reason of any loss of revenues or interruption of business or operations caused thereby.
“Refinanced Credit Agreement Debt” has the meaning assigned to such term in the definition of “Credit Agreement Refinancing Indebtedness”.
“Refinanced Debt” has the meaning assigned to such term in the definition of “Permitted Refinancing Indebtedness.”
“Refinancing Amendment” means an amendment to this Agreement executed by each of (a) the Borrower, Holdings and the other Loan Parties, (b) the Administrative Agent and (c) each
Additional Lender and Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.21.
“Refinancing Participation Notice” has the meaning assigned to such term in the Amendment.
“Refinancing Term Commitment” means, with respect to each Term Lender, the commitment of such Term Lender to make a Refinancing Term Loan hereunder on the Closing Date. The amount of each Term Lender’s
Refinancing Term Commitment is set forth on Schedule 2.01(a) under the caption “Refinancing Term Commitment”. As of the Closing Date, the total Refinancing Term Commitment is $1,300,000,000.
“Refinancing Term Facility” has the meaning assigned to such term in the recitals hereto.
“Refinancing Term Loan” means a Loan under the Refinancing Term Facility made by a Term Lender to the Borrower in respect of its Refinancing Term Commitment pursuant to Section 2.01(a) or 2.20.
“Register” has the meaning assigned to such term in Section 9.04(b)(iv).
“Registered Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical
notes (having substantially the same Guarantees) issued in a Dollar-for-Dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the officers, directors, employee, partners, members, agents, advisors and other
representatives of such Person and of each of such Person’s Affiliates and permitted successors and assigns.
“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 and including the environment within any building or other structure).
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank
of New York, or any successor thereto.
“Removal Effective Date” has the meaning assigned to such term in Article VIII.
“Reorganization” has the meaning assigned to such term in the definition of “Permitted Reorganization”.
“Representative” has the meaning assigned to such term in Section 9.12.
“Repricing Transaction” means (a) the incurrence by any Loan Party of any Indebtedness in the form of broadly syndicated term loans secured on a pari
passu basis with the Term Loans (i) having an Effective Yield for the respective Type and Class of such Indebtedness that is less than (and not by virtue of any fluctuation in any “base” rate) the Effective Yield for 2024-B Term
Loans or 2024 Other Term Loans, as applicable, but excluding Indebtedness incurred in connection with (A) a Public Offering yielding proceeds in excess of $75,000,000, (B) a Change in Control or (C) or a Transformative Acquisition, and (ii)
the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of 2024-B Term Loans or 2024 Other Term Loans, as applicable or (b) any effective reduction in
the Effective Yield for the 2024-B Term Loans or 2024 Other Term Loans, as applicable, (e.g., by way of amendment, waiver or otherwise), except for a reduction in connection with (A) a Public Offering yielding proceeds in excess of
$75,000,000, (B) a Change in Control or (C) a Transformative Acquisition.
“Required Facility Lenders” means, as of any date of determination, with respect to one or more Credit Facilities, Lenders having more than 50% of the sum of (a) the total Outstanding Amount under such
facility or facilities (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations under such facility or facilities being deemed “held” by such Lender for purposes of this definition) and (b)
the aggregate unused Commitments under such facility or facilities; provided that the unused Commitments of, and the portion of the total Outstanding Amount under such facility or facilities held or
deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of the Required Facility Lenders; provided, further, that, to
the same extent specified in Section 9.04(g) with respect to determination of Required Lenders, the Loans of any Affiliated Lender shall in each case be excluded for purposes of making a determination of Required Facility Lenders
unless the action in question affects such Affiliated Lender in a disproportionately adverse manner than its effect on the other Lenders.
“Required Lenders” means, at any time, one or more Lenders having or holding more than 50.0% of the Term Loan Exposure and Revolving Exposure; provided whenever there are one
or more Defaulting Lenders, the Term Loan Exposure of each Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Requirements of Law” means, with respect to any Person, any statutes, laws, treaties, rules, regulations, orders, decrees, writs, injunctions or determinations 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.
“Resignation Effective Date” has the meaning assigned to such term in Article VIII.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, secretary, treasurer or assistant treasurer, or other similar officer,
manager or a director of a Loan Party and with respect to certain limited liability companies or partnerships that do not have officers, any manager, sole member, managing member or general partner thereof or any other officer or employee of
the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Debt Payment” has the meaning assigned to such term in Section 6.08(b).
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in Holdings, the Borrower or any
Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity
Interests in Holdings, the Borrower or any Restricted Subsidiary or any option, warrant or other right to acquire any such Equity Interests.
“Restricted Subsidiary” means any Subsidiary other than an Unrestricted Subsidiary
“Retained Declined Proceeds” has the meaning assigned to such term in Section 2.11(f).
“Revaluation Date” means:
(a) with respect to any Revolving Loan, (i) each date of a Credit Extension of a Eurocurrency Loan denominated in Euro, and (ii) each date of a continuation of a
Eurocurrency Loan denominated in Euro; and
(b) with respect to any Letter of Credit, each of the following: (i) each date of issuance, renewal or extension of a Letter of Credit denominated in Euro,
Sterling, Australian Dollars or New Zealand Dollars, (ii) each date of an amendment of any such Letter of Credit denominated in Euro, Sterling, Australian Dollars or New Zealand Dollars having the effect of increasing the amount thereof
(solely with respect to the increased amount), (iii) each date of any payment by the L/C Issuer under any Letter of Credit denominated in Euro, Sterling, Australian Dollars and New Zealand Dollars, and (iv) such additional dates as the
Administrative Agent or the L/C Issuer shall determine or the Required Lenders shall require, but (in each case) no more frequently than once in any six-month period.
“Revolving Commitment” means a 2024 Other Revolving Commitment, an Incremental Revolving Commitment or an Other Revolving Commitment, and “Revolving Commitments” means all of them, collectively.
“Revolving Commitment Increase” has the meaning assigned to such term in Section 2.20(a).
“Revolving Commitment Period” means the period from the 2024-A Amendment Effective Date to but excluding the Revolving Commitment Termination Date.
“Revolving Commitment Termination Date” means, with respect to any Class of Revolving Commitments, the earliest to occur of (a) (i) [reserved], (ii) in the case of the Revolving
Commitments in respect of the 2024 Other Revolving Commitments, the applicable Revolving Maturity Date, or (iii) in the case of any Other Revolving Commitments, the date specified in the Refinancing Amendment or a Loan Modification Agreement,
(b) the date the Revolving Commitments of such Class are permanently reduced to zero pursuant to Section 2.08 and (c) the date of the termination of the Revolving Commitments pursuant to Section 7.01.
“Revolving Exposure” means, with respect to any Lender as of any date of determination, (i) prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment and (ii) after the
termination of the Revolving Commitments, the sum of (a) the aggregate outstanding principal amount of the Revolving Loans of that Lender, (b) in the case of any L/C Issuer, the aggregate L/C Obligations in respect of all Letters of Credit
issued by that L/C Issuer (net of any participations by Lenders in such Letters of Credit) and (c) the aggregate amount of all participations by that Lender in any outstanding Letters of Credit or any Unreimbursed Amount.
“Revolving Facility” means the 2024 Other Revolving Facility and the other revolving facilities represented by the Revolving Loans.
“Revolving Lender” means, at any time, a Lender that has a Revolving Commitment or a Revolving Loan at such time.
“Revolving Loans” means the 2024 Other Revolving Loans, the Incremental Revolving Loans or any Other Revolving Loans, as applicable.
“Revolving Maturity Date” means (a) [reserved], (b) in the case of the 2024 Other Revolving Loans, earlier of (x) the fifth anniversary of the 2024-A Amendment Effective Date (the “Scheduled 2024-A
Maturity Date”) and (y) the Springing Maturity Date and (c) in the case of any Incremental Revolving Facility or any Other Revolving Loan, the date set forth in the applicable documentation in respect thereof.
“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and any successor to its rating agency business.
“SABB Credit Facility” means that certain Facilities’ Letter and Agreement, dated as of September 10, 2019 between Tronox Saudi Industries Company and the Saudi British Bank providing overdraft and short
term revolving loans in an amount not to exceed $20,000,000.
“Sale Leaseback” means any transaction or series of related transactions pursuant to which the Borrower or any Restricted Subsidiary (a) sells, transfers or otherwise disposes of any
property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the
property being sold, transferred or disposed of.
“Sanctioned Country” means, at any time, a country or territory which is itself the subject or target of any comprehensive Sanctions (as of the Closing Date, Cuba, Iran, North Korea,
Syria, and the Crimea region of Ukraine).
“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, or the U.S. Department of State, the European Union, any Member State of the European Union, or the United Kingdom, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or
controlled by any such Person.
“Sanctions” means economic sanctions administered or enforced by the United States Government (including without limitation, sanctions enforced by OFAC and the U.S. Department of
State), the European Union, the United Kingdom (including without limitation, sanctions enforced by His Majesty’s Treasury) or any similar laws of those jurisdictions where Holdings or any of its Subsidiaries does business.
“Scheduled 2024-A Maturity Date” has the meaning provided in the definition of “Revolving Maturity Date”.
“SEC” means the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.
“Secured Cash Management Obligations” means the due and punctual payment and performance of all obligations of Holdings and the Restricted Subsidiaries (other than Receivables
Subsidiaries) in respect of any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management services, corporate credit and purchasing cards and related programs or any automated clearing
house transfers of funds (collectively, “Cash Management Services”) provided to Holdings or any Subsidiary (whether absolute or contingent and howsoever and whenever created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor)) that are (a) owed to the Administrative Agent or any of its Affiliates, (b) owed on the Closing Date to a Person that is a Lender or an Affiliate of a Lender as of the Closing
Date, (c) owed to a Person that is an Agent, a Lender or an Affiliate of an Agent or Lender at the time such obligations are incurred or (d) owed to any Person from time to time approved by the Administrative Agent (such approval not to be
unreasonably withheld, conditioned or delayed).
“Secured Net Leverage Ratio” means, on any date, the ratio of (a) Consolidated Secured Debt as of such date to (b) Consolidated EBITDA for the Test Period as of such date.
“Secured Obligations” means (a) the Loan Document Obligations, (b) the Secured Cash Management Obligations and (c) the Secured Swap Obligations (excluding, with respect to any
Guarantor, Excluded Swap Obligations of such Guarantor).
“Secured Parties” means (a) each Lender and each L/C Issuer, (b) the Administrative Agent and Collateral Agent, (c) each other Agent, (d) each Person to whom any Secured Cash
Management Obligations are owed, (e) each counterparty to any Swap Agreement the obligations under which constitute Secured Swap Obligations, (f) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan
Document and (g) the successors and permitted assigns of each of the foregoing.
“Secured Swap Obligations” means the due and punctual payment and performance of all obligations of Holdings, the Borrower and the Restricted Subsidiaries (other than Receivables
Subsidiaries) under each Swap Agreement that (a) is with a counterparty that is the Administrative Agent or any of its Affiliates, (b) is in effect on the Closing Date with a counterparty that is a Lender, an Agent or an Affiliate of a Lender
or an Agent as of the Closing Date, (c) is entered into after the Closing Date with any counterparty that is a Lender, an Agent or an Affiliate of a Lender or an Agent at the time such Swap Agreement is entered into or (d) with any Person
from time to time approved by the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed).
“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds,
debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.
“Securities Act” means the Securities Act of 1933, as amended.
“Senior Representative” means, with respect to any series of Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt or other Indebtedness, the trustee,
administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such
capacities.
“Senior Secured 2025 Notes” means the notes issued pursuant to that certain Indenture dated May 1, 2020 providing for the issuance of 6.500% Senior Secured Notes due 2025 in the aggregate original
principal amount of $500,000,000, which notes have been redeemed in full on or about the 2022 Amendment Effective Date.
“Senior Unsecured 2025 Notes” means the notes issued pursuant to that certain Indenture dated September 22, 2017 providing for the issuance of 5.750% Senior Unsecured Notes due 2025 in the aggregate
original principal amount of $450,000,000.
“Senior Unsecured 2026 Notes” means the notes issued pursuant to that certain Indenture dated April 5, 2018 providing for the issuance of 6.500% Senior Unsecured Notes due 2026 in the
aggregate original principal amount of $615,000,000.
“Senior Unsecured 2029 Notes” means the notes issued pursuant to an Indenture dated on or about March 15, 2021 providing for the issuance of 4.625% Senior Unsecured Notes due 2029 in the aggregate
principal amount of $1,075,000,000.
“Significant Subsidiary” means any Restricted Subsidiary that, or any group of Restricted Subsidiaries that, taken together, as of the last day of the fiscal quarter of the Borrower
most recently ended for which financial statements are available, had revenues or total assets (determined on a consolidated basis for such Restricted Subsidiary and its Restricted Subsidiaries or such group of Restricted Subsidiaries and
their respective Restricted Subsidiaries, as applicable) for such quarter in excess of 10.0% of the consolidated revenues or total assets, as applicable, of Holdings and the Restricted Subsidiaries for such quarter.
“Similar Business” means (1) any business conducted by Holdings or any Restricted Subsidiary on the Closing Date or (2) any business or other activities that are reasonably similar,
ancillary, incidental, complementary or related to (including non-core incidental businesses acquired in connection with any permitted Investment), or a reasonable extension, development or expansion of, the businesses that Holdings and its
Restricted Subsidiaries conduct on the Closing Date.
“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 Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, 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.
“SOFR Borrowing” means, as to any Borrowing, the SOFR Loans comprising such Borrowing.
“SOFR Loan” means a Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (c) or (d) of the definition of “Alternate Base Rate”.
“Solvent” and “Solvency” means with respect to any Person on any date of determination, that on such date (i) the Fair Value and the Present Fair Saleable Value of the assets of
such Person exceeds such Person’s Stated Liabilities and Identified Contingent Liability; (ii) such person does not have Unreasonably Small Capital; and (iii) such Person can pay its Stated Liabilities and Identified Contingent Liability as
they mature. For purposes of the foregoing, (a) “Fair Value” shall mean the amount at which the assets (both tangible and intangible), in their entirety, of a Person would change hands between a willing buyer and a willing seller, within a
commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act, (b) “Present Fair Salable Value” means the amount that could be obtained by an independent willing
seller from an independent willing buyer if the assets (both tangible and intangible) of the Borrower and its Subsidiaries taken as a whole are sold on a going concern basis with reasonable promptness in an arm’s-length transaction under
present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated (provided that for purposes of determining Solvency on the Closing Date, this clause (b) shall be
calculated after giving effect to the consummation of the Transactions (including the execution and delivery of this Agreement, the making of the Loans and the use of proceeds of such Loans on the Closing Date), (c) “Stated Liabilities” means
the recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of such Person, (d) “Identified Contingent Liabilities” shall mean the maximum estimated amount of liabilities reasonably likely to
result from pending litigation, asserted claims and assessments, guaranties, uninsured risks and other contingent liabilities of such person; provided that for purposes of determining Solvency on the Closing Date, this clause (d)
shall be calculated after giving effect to the consummation of the Transactions (including the execution and delivery of this Agreement, the making of the Loans and the use of proceeds of such Loans on the Closing Date (including all fees and
expenses related thereto but exclusive of such contingent liabilities to the extent reflected in Stated Liabilities pursuant to the proviso in clause (c) above)) as identified and explained in terms of their nature and estimated magnitude and
(e) “Can pay their Stated Liabilities and Contingent Liabilities as they mature” means such Person will have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities
mature or (in the case of contingent liabilities) otherwise become payable; provided that for purposes of determining Solvency on the Closing Date, this clause (e) shall be calculated after giving effect to the consummation of
the Transactions (including the execution and delivery of this Agreement, the making of the Loans and the use of proceeds of such Loans on the Closing Date) and (f) “Do not have Unreasonably Small Capital” means such Person will have
sufficient capital to ensure that it is a going concern.
“South African Credit Agreement” means that certain Term Loan and Revolving Credit Facilities Agreement, dated March 25 2019, among Tronox Mineral Sands Proprietary Limited and Tronox
KZN Sands Proprietary Limited, as borrowers with joint and several liability, the lenders party thereto from time to time, The Standard Bank of South Africa Limited, as Coordinating Bank, and Firstrand Bank Limited, as Facility Agent.
“Special Purpose Entity” means a direct or indirect subsidiary of any Loan Party, whose organizational documents contain restrictions on its purpose and activities intended to preserve
its separateness from the Loan Parties and their other subsidiaries.
“Specified Event of Default” means an Event of Default occurring under Sections 7.01(a), 7.01(g), or 7.01(h).
“Specified Transaction” means, with respect to any period, any Investment, Disposition, incurrence, modification or repayment of Indebtedness, Restricted Payment, subsidiary
designation, operating improvements, restructurings or other event that by the terms of the Loan Documents requires “Pro Forma Compliance” with a test or covenant hereunder or requires such test or covenant to be calculated on a “Pro Forma
Basis” or after giving “Pro Forma Effect” to such event.
“Springing Maturity Date” means, the earlier of the date that is 91 days prior to the (w) [reserved], (x) Term Maturity Date of the 2024 Other Term
Loans if on such date the Outstanding Amount of 2024 Other Term Loans is greater than $200,000,000, (y) stated maturity date of the Senior Unsecured 2029 Notes if on such date the aggregate outstanding principal amount of the Senior Unsecured
2029 Notes is greater than $200,000,000 and (z) stated maturity date of any other Term Loans or other senior or subordinated (whether or not secured) loans or notes incurred by the Loan Parties that remain outstanding if on such date the
aggregate outstanding principal amount of such Indebtedness is greater than $200,000,000 (the “Springing Maturity Threshold”); provided that, solely with respect to clause (z), the Springing
Maturity Threshold shall not apply to Indebtedness incurred pursuant to Sections 6.01(a)(xiv), 6.01(a)(vii) or 6.01(a)(xxvi) or Indebtedness incurred in reliance on the Maturity Limitation Excluded Amount.
“SPV” has the meaning assigned to such term in Section 9.04(f).
“Standard Securitization Undertakings” means all representations, warranties, covenants, pledges, transfers, purchases, dispositions, guaranties and indemnities (including repurchase
obligations in the event of a breach of representation and warranty) and other undertakings made or provided, and servicing obligations undertaken, by any Loan Party or Subsidiary thereof that the Borrower has determined in good faith to be
customary in connection with a Permitted Receivables Financing.
“Starter Basket” means the greater of (x) $700,000,000 and (y) 100% of Consolidated EBITDA for the most recently completed Test Period (calculated on a Pro Forma Basis) minus any amounts previously utilized pursuant to Section 2.20(d)(iii)(A) hereof and the amount of Incremental Equivalent Debt incurred pursuant to Section 6.01(xxiii) in reliance on the
Starter Basket hereof.
“Sterling” and “£” mean the lawful currency of the United Kingdom.
“subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity 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 Equity Interests representing more than 50.0% of the equity or more than 50.0% of the ordinary voting power or, in the case of a partnership, more than 50.0% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
“Subsidiary” means any subsidiary of Holdings.
“
Subsidiary Loan Party” means each Guarantor other than Holdings.
“Successor Borrower” has the meaning assigned to such term in Section 6.03(f).
“Successor Holdings” has the meaning assigned to such term in Section 6.03(e).
“Swap” means any agreement, contract, or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swap Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which
are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Obligation” means, with respect to any Person, any obligation to pay or perform under any Swap.
“TARGET 2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
“TARGET Day” means any date on which TARGET 2 (or, if such payment system ceases to be operative, such other payment system, if any reasonably determined by the Administrative Agent to be a suitable
replacement) is open for the settlement of payments in Euro.
“Tax Restructuring” means any reorganizations and other activities related to tax planning and tax reorganization (as determined by Holdings in good faith) entered into after the date hereof so long as
such Tax Restructuring does not impair the Guarantee or the Lien of the Collateral Agent in any material respect and is otherwise not adverse to the Lenders in any material respect and after giving effect to such Tax Restructuring, Holdings
and its Restricted Subsidiaries otherwise comply with Section 5.14.
“Taxes” means any and all present or future taxes, levies, imposts, duties, value added taxes, deductions, charges, fees, assessments or withholdings (including backup withholdings)
imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Facility” means the 2024-B Term Facility, the 2024 Other Term Facility and the other term loan facilities represented by the Term Loans.
“Term Lenders” means at any time, a Lender that has a Term Loan Commitment or holds a Term Loan, in each case, at such time.
“Term Loan Commitment” means, (x) following the 2024 Refinancing Amendment, a 2024 Other Term Commitment or (y) following the 2024-B Refinancing Amendment, a 2024-B Term Commitment.
“Term Loan Exposure” means, with respect to any Lender, as of any date of determination, the amount of the outstanding principal amount of the Term Loans of such Lender; provided, at
any time prior to the making of the Term Loans, the Term Loan Exposure of any Lender shall be equal to such Lender’s Term Loan Commitment.
“Term Loans” means the 2024-B Term Loans, the 2024 Other Term Loans, any other Incremental Term Loans or any Other Term Loans, as applicable.
“Term Maturity Date” means (a) in the case of the 2024-B Term Loans, September 30, 2031, (b) in the case of the 2024 Other Term Loans, April 4, 2029 and (c) in the case of any other
Incremental Term Loan or any Other Term Loan, the date set forth in the applicable documentation in respect thereof.
“Term Rate Borrowing” means Eurocurrency Borrowing, SOFR Borrowing or both.
“Term Rate Loans” means Eurocurrency Loans, SOFR Loans, or both.
“
Term SOFR” means (a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “
Periodic Term SOFR
Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator;
provided, however, that if as of 5:00 p.m.
(New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR
Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference
Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR
Determination Day, and (b) for any calculation with respect to an ABR Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “
ABR Term SOFR Determination Day”) that is two (2) U.S. Government
Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator;
provided, however, that if as of 5:00 p.m. (New York City time) on any ABR Term SOFR Determination Day the Term SOFR Reference Rate
for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor
as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding
U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such
ABR Term SOFR Determination Day;
provided, further, that, if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.
“Term SOFR Adjustment” means (a) in the case of the 2024 Other Term Loans and the 2024-B Term Loans, 0.0% and (b) otherwise, a percentage per annum equal to (i) 0.11448% with respect to any SOFR Loan with
a one-month Interest Period; (ii) 0.26161% with respect to any SOFR Loans with a three-month Interest Period, and (iii) 0.42826% with respect to any SOFR Loans with a six-month Interest Period.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable
discretion).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Termination Date” means the date on which (a) all Commitments shall have been terminated, and (b) all Loan Document Obligations (in each case, other than in respect of contingent
indemnification and expense reimbursement claims not then due) shall have been paid in full.
“Test Period” means, at any date of determination, (a) for purposes of (i) the definitions of “Applicable Rate” and “ECF Percentage” and (ii) the Financial Covenant (other than for the
purpose of determining pro forma compliance with the Financial Covenant in connection with any basket) the most recently completed four consecutive fiscal quarters of Holdings ending on or prior to
such date for which financial statements have been (or were required to have been) delivered pursuant to Section 5.01(a) or 5.01(b); and (b) for all other purposes in this Agreement, 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 such quarter or fiscal year in such period are internally available (as determined in good faith by
the Borrower); provided that in each case prior to the first date financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b), the Test Period in effect shall be the period of four consecutive
fiscal quarters of Holdings ended December 31, 2020.
“TFA” means a tax funding agreement between the members of an Australian Tax Consolidated Group which includes (a) reasonably appropriate arrangements for the funding of tax payments
by the head company (as defined in the Australian Tax Act) having regard to the position of each member of the Australian Tax Consolidated Group and (b) reasonably appropriate arrangements for the compensation of each member of the Australian
Tax Consolidated Group to compensate such member adequately for loss of tax attributes (including tax losses and tax offsets) as a result of being a member of the Australian Tax Consolidated Group, any such agreement to be in form and
substance reasonably satisfactory to the Administrative Agent.
“Title Policy” has the meaning assigned to such term in the definition of “Collateral and Guarantee Requirement”.
“Total Net Leverage Ratio” means, on any date, the ratio of (a) Consolidated Total Net Debt as of such date to (b) Consolidated EBITDA for the Test Period as of such date.
“Total Utilization of Revolving Commitments” means, as at any date of determination, the sum of (i) the Dollar Equivalent amount of the aggregate principal amount of all outstanding Revolving Loans (other than Revolving Loans made
for the purpose of reimbursing any L/C Issuer for any amount drawn under any Letter of Credit, but not yet so applied) and (ii) the Dollar Equivalent amount of the aggregate L/C Obligations.
“Transaction Costs” means any fees, expenses and other transaction costs incurred or paid by Holdings, the Borrower or any of its Subsidiaries in connection with the Transactions, this
Agreement and the other Loan Documents and the transactions contemplated hereby and thereby.
“Transactions” means, collectively, (a) Closing Date Refinancing, (b) the consummation of any other transactions in connection with the foregoing and (c) the payment of the fees and
expenses incurred in connection with any of the foregoing (including the Transaction Costs).
“Transformative Acquisition” means any merger, acquisition or material investment, in any such case by Holdings and its Restricted Subsidiaries that either (a) is not permitted by the
terms of the Loan Documents immediately prior to the consummation of such acquisition or (b) if permitted by the terms of the Loan Documents immediately prior to the consummation of such acquisition, would not provide Holdings and its
Restricted Subsidiaries with adequate flexibility under the Loan Documents for the continuation and/or expansion of their combined operations following such consummation, as reasonably determined by Holdings acting in good faith.
“Tronox Coöperatief” means Tronox Holdings Coöperatief U.A., a cooperative with excluded liability under Dutch law (coöperatie met uitgesloten aansprakelijkheid), having its official seat (statutaire
zetel) in Amsterdam, the Netherlands, having its principal place of business at Lot 22, Mason Road, Kwinana Beach, Western Australia 6167, Australia, registered with the Dutch trade register under number 55056113.
“Tronox Global Holdings” means Tronox Global Holdings PTY LTD, a proprietary company limited by
shares incorporated under the laws of Australia, having its business address at Lot 22, Mason Road, Kwinana Beach, Western Australia 6167, Australia, registered under the number ACN 154 691 826.
“Tronox Holdings Europe C.V.” means Tronox Holdings Europe C.V., a limited partnership (commanditaire vennootschap) formed and existing under Dutch law, having its
business address at Lot 22, Mason Road, Kwinana Beach, Western Australia 6167, Australia, registered with the Dutch trade register under number 24424862.
“Tronox International” means Tronox International B.V., a private company with limited liability incorporated under Dutch law (besloten vennootschap met beperkte
aansprakelijkheid), having its official seat (statutaire zetel) in Amsterdam, the Netherlands, having its registered address as Professor Gerbrandyweg 2, 3197 KK, Botlek Rotterdam, the
Netherlands, registered with the Dutch trade register under number 67086497.
“Tronox Investments Netherlands” means Tronox Investments Netherlands B.V., a private company with limited liability incorporated under Dutch law (besloten vennootschap
met beperkte aansprakelijkheid), having its official seat (statutaire zetel) in Amsterdam, the Netherlands, having its registered address at Professor Gerbrandyweg 2, 3197 KK, Botlek
Rotterdam, the Netherlands, registered with the Dutch trade register under number 56102259.
“Tronox Limited” means Tronox Limited, a public limited company incorporated under the laws of Australia, having its business address at Lot 22, Mason Road, Kwinana Beach, Western Australia 6167,
Australia, registered with the Australian Securities and Investments Commission under the number ACN 153 348 11.
“Tronox Pigments (Holland)” means Tronox Pigments (Holland) B.V., a private company with limited liability incorporated under Dutch law (besloten vennootschap met beperkte
aansprakelijkheid), having its official seat (statutaire zetel) in Rozenburg, Zuid-Holland, the Netherlands, having its registered address at Professor Gerbrandyweg 2, 3197 KK, Botlek
Rotterdam, the Netherlands, registered with the Dutch trade register under number 24179173.
“
Tronox Pigments (Netherlands)” means Tronox Pigments (Netherlands) B.V., a private company with limited liability incorporated under Dutch law
(besloten vennootschap met beperkte aansprakelijkheid), having its official seat (statutaire zetel) in Amsterdam, the Netherlands, having its registered address at Professor Gerbrandyweg 2, 3197 KK, Botlek Rotterdam, the Netherlands,
registered with the Dutch trade register under number 34132341.
“TSA” means an agreement between the members of an Australian Tax Consolidated Group which takes effect as a tax sharing agreement under section 721-25 of the Australian Tax Act and
complies with the Australian Tax Act and any applicable law, official directive, request, guideline or policy (whether or not having the force of law) issued in connection with the Australian Tax Act, any such agreement to be in form and
substance reasonably satisfactory to the Administrative Agent.
“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
EURIBOR, Daily Simple SOFR, Adjusted Term SOFR or the Alternate Base Rate.
“UCC” or “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that, at any
time, if by reason of mandatory provisions of law, any or all of the perfection or priority of the Collateral Agent’s security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a U.S.
jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for
purposes of definitions relating to such provisions.
"UK Debenture" means that certain English law debenture dated as of the Closing Date, and any supplement and/or amendments to the same entered into from time to time, among the UK Loan
Parties party thereto from time to time as chargors, Tronox Limited and Tronox UK Holdings Limited as partners, and the Collateral Agent.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form 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 Loan Party” means any Loan Party incorporated in or established under the laws of England and Wales.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“UK Security Documents” means, collectively, means the UK Debenture and the Existing UK Debenture and any other document entered into in accordance with this Agreement that creates a security interest in
the assets or properties of any or all of the UK Loan Parties.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed
income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Loan Party” means any Loan Party organized in or under the laws of the United States, any State thereof, or the District of Columbia.
“U.S. Pledge Agreement” means that certain Amended and Restated Pledge Agreement, dated as of the Closing Date among Tronox UK Holdings Limited, a company formed under the laws of England and Wales, as a
pledgor, Tronox Global Holdings Pty Limited, a company formed under the laws of the Commonwealth of Australia, as a pledgor, and Tronox Worldwide Pty Limited, a company formed under the laws of the Commonwealth of Australia, as a pledgor, and
the Collateral Agent (as successor in interest to the Existing Administrative Agent and Collateral Agent’s right, title and interest in its capacity as collateral agent thereunder in accordance with the Agency Successor Agreement).
“U.S. Security Agreement” means that certain Amended and Restated Security Agreement, dated as of the Closing Date among the U.S. Loan Parties party thereto from time to time as grantors and the Collateral
Agent (as successor in interest to the Existing Administrative Agent and Collateral Agent’s right, title and interest in its capacity as collateral agent thereunder in accordance with the Agency Successor Agreement).
“U.S. Security Documents” means the Amended and Restated U.S. Pledge Agreement, the U.S. Security Agreement, any Intellectual Property Security Agreement, and any other document entered into in accordance
with the U.S. Security Agreement that creates a security interest in the assets or properties of the U.S. Loan Parties.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unaudited Financials” means the unaudited consolidated balance sheet of Holdings and its consolidated subsidiaries as at the end of, and related unaudited consolidated statements of
income and cash flows of Holdings and its Subsidiaries for the period ended December 31, 2020.
“Unreimbursed Amount” as defined in Section 2.04(d)(i).
“Unrestricted Subsidiary” means (i) any Subsidiary (other than a Holdings or the Borrower) designated by the Borrower as an Unrestricted Subsidiary pursuant to Section 5.18
subsequent to the Closing Date and (ii) Hawkins Point LLC, a Delaware limited liability company.
“USA Patriot Act” means the USA PATRIOT Improvement and Reauthorization Act, Pub. L. 109-177 (signed into law March 9, 2009), as amended from time
to time.
“Vehicles” means all railcars, cars, trucks, trailers, construction and earth moving equipment and other vehicles covered by a certificate of title law of any state and all tires and
other appurtenances to any of the foregoing.
“
Voting Stock” means, with respect to any Person, such Person’s Equity Interests having the right to vote for the election of directors of such
Person under ordinary circumstances.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying
(i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
“Whitewash Australian Entity” means any Australian Subsidiary which is required to obtain approval to the giving of financial assistance in accordance with section 260B of the
Corporations Act in connection with any acquisition.
“Whitewash Completion Date” means in respect of each Australian Subsidiary from time to time that is a Whitewash Australian Entity, (i) while the ultimate Australian holding company of
that Whitewash Australian Entity is a public company, the date which is no later than 60 days (or such longer period as consented to by the Collateral Agent in its sole discretion) after the next scheduled annual general meeting of that
ultimate Australian holding company after the date such Australian Subsidiary is acquired by, or otherwise becomes a Subsidiary domiciled in Australia of, Holdings or one of its Subsidiaries or (ii) otherwise, the date which is no later than
90 days (or such longer period as consented to by the Collateral Agent in its sole discretion) after such Australian Subsidiary is acquired by, or otherwise becomes a Subsidiary domiciled in Australia of, Holdings or one of its Subsidiaries.
“Whitewash Documents” means the documents, in a form approved by the Administrative Agent (acting reasonably), required under section 260B of the Corporations Act for approving the
giving of financial assistance being given by any Australian Subsidiary that is a Whitewash Australian Entity under all relevant Loan Documents to which it is proposed to be a party, including, in respect of each Whitewash Australian Entity
and the ultimate Australian holding company, the circular or sole member (as applicable) resolution approving the giving of the financial assistance by the relevant company, an explanatory statement setting out all the information that is
material to the decision on how to vote on such resolution, a notice proposing the passing of a resolution to approve the giving of the financial assistance and as required, ASIC forms 2602 (financial assistance details), 2601 (intention to
give financial assistance) (other than for the ultimate Australian holding company) and 2205 (notification of resolutions regarding shares) (including, in each case, with all necessary attachments, if any).
“Whitewash Resolution Date” means, in respect of an Australian Subsidiary that is a Whitewash Australian Entity, the date which is at least 14 days prior to the relevant Whitewash
Completion Date for such Australian 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 (a) directors’ qualifying shares and (b) nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law) 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.
SECTION 1.02
Classification of Loans and Borrowings. For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Class
(e.g., a “Term Loan” or “Revolving Loan”) or by Type (e.g., a “Eurocurrency Loan”, “SOFR Loan” or “ABR Loan”) or by Class and Type (e.g., a “Eurocurrency Term Loan”, a “SOFR Loan” or “Eurocurrency Revolving Loan”). Borrowings also may be
classified and referred to by Class (e.g., a “Term Rate Borrowing”. “SOFR Borrowing” or “Revolving Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing” “SOFR Borrowing” or “ABR Borrowing”) or by Class and Type (e.g., a “Eurocurrency Term
Borrowing”, “SOFR Term Borrowing” or “Eurocurrency 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, (a) any definition of or reference to any agreement (including this Agreement and the other Loan Documents), 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 herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other
Governmental Authority that shall have succeeded to any or all functions thereof, (c) 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, (d) 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, (e) 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 (f) references to any matter being “permitted” under
this Agreement or in any Loan Document shall include references to such matters not being prohibited or otherwise being approved under this Agreement or such Loan Document, and (g) unless otherwise specified herein, all references herein to
times of day shall be references to Eastern time (daylight or standard, as applicable).
SECTION 1.04
Accounting Terms; GAAP.
(a) All accounting terms not specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically prescribed herein.
(b) Where reference is made to Holdings and the Restricted Subsidiaries on a “consolidated basis” or similar language, such consolidation
shall not include any Subsidiaries of Holdings other than the Restricted Subsidiaries unless otherwise specified therein.
(c) In the event that Holdings elects to prepare its financial statements in accordance with IFRS and such
election results in a change in the method of calculation of financial covenants, standards or terms (collectively, the “
Accounting Changes”) in this Agreement, Holdings and the Administrative Agent agree to enter into good faith
negotiations in order to amend such provisions of this Agreement (including the levels applicable herein to any computation of the Total Net Leverage Ratio, the First Lien Net Leverage Ratio, Cash Interest Coverage Ratio and the Secured Net
Leverage Ratio) so as to reflect equitably the Accounting Changes with the desired result that the criteria for evaluating Holdings’ financial condition shall be substantially the same after such change as if such change had not been made.
Until such time as such an amendment shall have been executed and delivered by Holdings, the Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or
construed in accordance with GAAP (as determined in good faith by a Responsible Officer of Holdings) (it being agreed that the reconciliation between GAAP and IFRS used in such determination shall be made available to Lenders) as if such
change had not occurred.
(d) Unless the Borrower has requested an amendment pursuant to the process set out in the definition of “GAAP” with respect to the treatment
of operating leases and Capitalized Lease Obligations under GAAP (or IFRS) and until such amendment has become effective, 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 all financial definitions and calculations
for purpose of this Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a prospective or retroactive basis or
otherwise) to be treated as Capitalized Lease Obligations in the financial statements to be delivered pursuant to Section 5.01.
SECTION 1.05
Currency Translation; Rates.
(a) All references in the Loan Documents to Loans, Letters of Credit, Secured Obligations and other amounts shall be denominated in Dollars,
unless expressly provided otherwise.
(b) Credit Extensions; Total Utilization of Revolving Commitments. Notwithstanding anything to the contrary herein, for purposes of
determining the relative outstanding principal amounts of any Loans denominated in any currency other than Dollars, including in connection with (i) determining the Utilization of Revolving Commitments pursuant to Section 2.01(b),
(ii) determining whether the Required Lenders or Required Facility Lenders shall have consented to any amendment, waiver, modification or supplement hereunder or (ii) the application of any mandatory prepayments of Loans hereunder, such
determination shall be based on the Dollar-equivalent principal amounts of such Loans based on the Exchange Rate as of the applicable date of determination.
(c) Baskets. The Borrower shall determine in good faith the Dollar equivalent amount of any utilization or other measurement
denominated in a currency other than Dollars for purposes of compliance with any basket. For purposes of determining compliance with any basket under Article VI or VII with respect to any amount expressed in a currency other than Dollars, no
Default shall be deemed to have occurred solely as a result of changes in rates of currency exchange occurring after the time such basket utilization occurs or other basket measurement is made (so long as such basket utilization or other
measurement, at the time incurred, made or acquired, was permitted hereunder). Except with respect to any ratio calculated under any basket, any subsequent change in rates of currency exchange with respect to any prior utilization or other
measurement of a basket previously made in reliance on such basket (as the same may have been reallocated in accordance with this Agreement) shall be disregarded for purposes of determining any unutilized portion under such basket.
(d) Financial Ratios and Tests. For purposes of determining the First Lien Net Leverage Ratio, Secured Net Leverage Ratio and the
Total Net Leverage Ratio, the amount of Indebtedness and cash and Cash Equivalents shall reflect the currency translation effects, determined in accordance with GAAP, of hedging obligations permitted hereunder for currency exchange risks with
respect to the applicable currency in effect on the date of determination of the Dollar equivalent of such Indebtedness.
(e) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to
time specify with Holdings’ consent (such consent not to be unreasonably withheld) to appropriately reflect a change in currency of any country and any relevant market conventions or practices relating to such change in currency.
(f) The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect
to the administration, submission or any other matter related to the rates in the definition of “EURIBOR” or with respect to any comparable or successor rate thereto, except as expressly provided herein.
(g) The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the
continuation of, administration of, submission of, calculation of or any other matter related to ABR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition
thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark
Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, ABR, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its
discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of
ABR, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower.
The Administrative Agent may select information sources or services in its reasonable discretion to ascertain ABR, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark, in each case pursuant to the terms of this
Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether
in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
SECTION 1.06
Timing of Payment of Performance. When payment of any obligation or the performance of any covenant, duty or obligation is stated to be due
or required on a day which is not a Business Day, the date of such payment (other than as described in the definition of “Interest Period”) or performance shall extend to the immediately succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of such extension.
SECTION 1.07
Cashless Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, to the extent that
any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with Incremental Loans, Credit Agreement Refinancing Indebtedness, Loans in connection with any extended Term Loans or loans incurred
under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to
comply with any requirement hereunder or any other Loan Document that such payment be made “in Dollars, “in immediately available funds”, “in Cash” or any other similar requirement.
SECTION 1.08
Certain Calculations and Tests.
(a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, in connection with any
action being taken in connection with a Limited Condition Transaction, for purposes of:
(i) determining compliance with any provision in this Agreement or any Loan Document (other than the Financial Covenants)
that requires the calculation of any financial ratio or test (including, without limitation, any First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test
and/or any Cash Interest Coverage Ratio test) (and for the avoidance of doubt, any financial ratio set forth in Section 2.20);
(ii) determining compliance with representations and warranties or the requirement regarding the absence of a Default or
Event of Default (or any type of Default or Event of Default);
(iii) testing any cap expressed as a percentage of Consolidated EBITDA and any other availability of a “basket” or
exception set forth in Article VI,
in each case, the date of determination of whether any such action is permitted hereunder, at the election of the Holdings (Holdings’ election to exercise such option in connection with any
Limited Condition Transaction, an “LCA Election”), will be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “LCA Test Date”), and if, after giving Pro Forma Effect to
the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recently
completed Test Period ending prior to the LCA Test Date, Holdings could have taken such action on the relevant LCA Test Date in compliance with such ratios, representation, warranty, absence of Default or Event of Default or “basket”, such
ratio, representation, warranty, absence of Default or Event of Default shall be deemed to have been complied with; provided, that (a) if financial statements for one or more subsequent fiscal quarters shall have become available, the
Borrower may elect, in its sole discretion, to re-determine all such ratios, tests or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter be deemed to be the applicable LCA Test Date
for purposes of such ratios, tests or baskets. For the avoidance of doubt, if Holdings has made an LCA Election and (x) any of the ratios or “baskets” for which compliance was determined or tested as of the LCA Test Date are exceeded as a
result of fluctuations in any such ratio or “basket” (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant Limited Condition Transaction, such “baskets” or ratios
and other provisions will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (y) in connection with any subsequent
calculation of any ratio or “basket” availability on or following the relevant LCA Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement
for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, (A) any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition
Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had been consummated and (B) solely in connection with the
calculation of any ratio or “basket” availability with respect to the making of Restricted Payments, any such ratio or “basket” availability shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other
transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof (but without netting the cash proceeds thereof)) had not been consummated. For the further avoidance of doubt, in the absence of an LCA
Election, unless specifically stated in this Agreement to be otherwise, all determinations of (x) compliance with any financial ratio or test (including, without limitation, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio
test, any Secured Net Leverage Ratio test and/or any Cash Interest Coverage Ratio test) and/or any cap expressed as a percentage of Consolidated EBITDA, (y) any representation and warranties, or any requirement regarding the absence of a
Default or Event of Default (or any type of Default or Event of Default) or (z) any availability test under any “baskets” shall be made as of the applicable date of the consummation of the Limited Condition Transaction.
(b) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in
reliance on a provision of this Agreement that does not require compliance with a financial ratio or test (including, without limitation, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage
Ratio test and/or any Cash Interest Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this
Agreement that requires compliance with a financial ratio or test (including, without limitation, any First Lien Net Leverage Ratio test, any Total Net Leverage Ratio test, any Secured Net Leverage Ratio test and/or any Cash Interest Charge
Coverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts (and any cash proceeds thereof and any concurrent borrowing under a revolving facility (including a Borrowing
consisting of Revolving Loans) shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts in connection with such substantially concurrent incurrence.
SECTION 1.09
Rounding. Any financial ratios required to be maintained by Holdings pursuant to this Agreement (or required to be satisfied in order for a
specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein
and rounding the result up or down to the nearest number (with a rounding up for five).
(a) For purposes of the covenants described in Sections 6.01, 6.02, 6.04 and 6.08, if any Indebtedness, Lien,
Investment or Restricted Payment (or a portion thereof) would be permitted pursuant to one or more provisions described therein, the Borrower may divide and classify such Indebtedness, Liens, Investments or Restricted Payments (or a portion
thereof) in any manner that complies with the covenants set forth in Sections 6.01, 6.02, 6.04 and 6.08, as applicable, and may later divide and reclassify any such Indebtedness, Lien or Investment so long as
the Indebtedness, Lien, Investment or 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.
(b) Unless otherwise specified herein, the baskets and other exceptions set forth in Article VI of this Agreement (or in any defined term
used in Article VI) shall be tested solely at the time of consummation of the relevant transaction or action utilizing any of such baskets or other exceptions and, for the avoidance of doubt, if any of such baskets (including ratio based
baskets) are exceeded as a result of fluctuations to Consolidated EBITDA for the most recently completed Test Period after the last time such baskets (including ratio based baskets) were calculated for any purpose under Article VI, such
baskets (including ratio based baskets) will not be deemed to have been exceeded as a result of such fluctuations. If any Indebtedness or Liens securing Indebtedness are incurred to refinance Indebtedness or Liens securing Indebtedness, in
each case, initially incurred in reliance on a basket measured by reference to a percentage of Consolidated EBITDA at the time of incurrence, and such refinancing would cause the percentage of Consolidated EBITDA restriction to be exceeded if
calculated based on the Consolidated EBITDA on the date of such refinancing, such percentage of Consolidated EBITDA restriction shall not be deemed to be exceeded so long as the principal amount of such Indebtedness or Indebtedness secured by
such Liens, as applicable, does not exceed the principal amount of such Indebtedness or Indebtedness secured by such Liens, as applicable, being refinanced, plus an amount equal to premiums, defeasance costs and fees and expenses in
connection therewith.
(c) For purposes of determining whether the incurrence of any Indebtedness or Lien or the making of any Investment, disposition, Restricted
Payment or prepayment, redemption, purchase, defeasance or other satisfaction of Junior Debt complies with any basket that is based upon the greater of a specified Dollar Equivalent amount and a percentage of Consolidated EBITDA, Consolidated
EBITDA shall be calculated on a Pro Forma Basis.
SECTION 1.11
Dutch Terms. In this Agreement, where it relates to or has an effect on a Dutch entity or its assets, or Dutch security, then, solely for
purposes of Dutch law, a reference to:
(a) a necessary action to authorize where applicable, includes without limitation:
(i) any action required to comply with the Works Councils Act of The Netherlands (Wet
op de ondernemingsraden); and
(ii) obtaining an unconditional positive advice (advies) from the competent works
council(s) if a positive advice is required pursuant to the Dutch Works Councils Act (Wet op de ondernemingsraden);
(b) gross negligence means grove schuld;
(c) negligence means schuld;
(d) a security interest includes any mortgage (hypotheek), pledge (pandrecht),
retention of title arrangement (eigendomsvoorbehoud), privilege (voorrecht), right of retention (recht van retentie),
right to reclaim goods (recht van reclame), and, in general, any right in rem (beperkt recht), created for the purpose of granting security (goederenrechtelijk zekerheidsrecht);
(e) a liquidation or dissolution (and any of those terms) includes a Dutch entity being declared bankrupt (failliet
verklaard) or dissolved (ontbonden);
(f) an insolvency includes:
(i) suspension of payments (surseance verleend);
(ii) emergency regulations (noodregeling) as provided for in the Act on
financial supervision (Wet op het financieel toezicht);
(iii) bankruptcy (failliet verklaard);
(iv) any other insolvency proceedings listed in Annex A of Regulation (EU) No 2015/848 of the European Parliament and of
the Council of the European Union of 20 May 2015 on insolvency proceedings (recast);
(g) a moratorium includes surseance van betaling and a moratorium is declared or occurs includes surseance verleend;
(h) any step or procedure taken in connection with insolvency proceedings includes a Dutch entity having filed a notice under Section 36 of
the Dutch Tax Collection Act (Invorderingswet 1990);
(i) a trustee or receiver includes a curator;
(j) an administrator includes a bewindvoerder;
(k) an attachment includes a beslag;
(l) a merger includes a juridische fusie;
(m) a demerger includes a juridische splitsing; and
(n) financial assistance means any action or contemplated action prohibited by Section 2:98(c) of the Dutch Civil Code (Burgerlijk Wetboek).
SECTION 1.12
French Terms. In this Agreement, where it relates to a French Loan Party:
(a) “gross negligence” means “faute lourde”;
(b) a “guarantee” includes any type of “sûreté personnelle”;
(c) “indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether
present or future, actual or contingent;
(d) “merger” includes any "fusion" implemented in accordance with articles L. 236-1 to L. 236-24 of
the French Commercial Code;
(e) a “security interest” includes any type of security (sûreté réelle) and transfer by way of
security;
(f) "control" means "contrôle" within the meaning of L. 233-3 I., 1° and 2° of the French
Commercial Code;
(g) "Solvent" or "Solvency" means that the relevant French Loan Party is not in a state of “cessation des
paiements” as defined in article L. 631-1 of the French Commercial Code;
(h) a “suspension of payments” a “moratorium of any indebtedness” a “winding-up,” “dissolution”, “administration”, “reorganisation” (by way
of voluntary arrangement, scheme of arrangement or otherwise) or “insolvency” or similar laws relating to or limiting creditors’ rights generally includes, without limitation, any reorganisation in the context of a mandat ad hoc or of a procédure de conciliation, any “redressement judiciaire”, any “cession totale ou
partielle de l’entreprise”, any “liquidation judiciaire”, any “sauvegarde,” any “sauvegarde accélérée” or any
“procédure collective” under Book VI (Livre Sixième) of the French Commercial Code; and
(i) a “composition,” “assignment” or “similar arrangement with any creditor” includes a procédure de
conciliation or a mandat ad hoc under Book VI (Livre Sixième) of the French Commercial Code;
(j) a “liquidator”, “receiver”, “administrative receiver”, “administrator”, “compulsory manager” or similar officer includes any “mandataire ad hoc”, “administrateur judiciaire”, “administrateur provisoire”, “conciliateur”
or “mandataire liquidateur” or similar officer.
SECTION 1.13
Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated
amount of such Letter of Credit in effect at such time; provided that, with respect to any 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, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
SECTION 1.14
Pro Forma Calculations.
(a) Notwithstanding anything to the contrary herein, financial ratios and tests, including the Total Net Leverage Ratio, the First Lien Net
Leverage Ratio, the Secured Net Leverage Ratio, the Cash Interest Coverage Ratio and Consolidated EBITDA shall be calculated (including for purposes of Section 2.20) in the manner prescribed by this Section 1.14; provided
that notwithstanding anything to the contrary in clauses (b), (c), (d) or (e) of this Section 1.14, (A) when calculating the First Lien Net Leverage Ratio for purposes of (i) the definition of “Applicable Rate”, (ii) the definition of
“ECF Percentage” and (iii) Section 6.12 (other than for the purpose of determining Pro Forma Compliance with Section 6.12 in connection with any basket), the events described in this Section 1.14 that occurred
subsequent to the end of the applicable Test Period shall not be given pro forma effect; provided, however, that voluntary prepayments made pursuant to Section
2.11(a) during any fiscal year (without duplication of any prepayments in such fiscal year that reduced the amount of Excess Cash Flow required to be repaid pursuant to Section 2.11(c) for any prior fiscal year) shall be given pro forma effect after such fiscal year‑end and prior to the time any mandatory prepayment pursuant to Section 2.11(c) is due for purposes of calculating the First Lien Net Leverage Ratio for
purposes of determining the ECF Percentage for such mandatory prepayment, if any and (B) when calculating any such ratio or test for purposes of the incurrence of any Indebtedness, cash and Cash Equivalents resulting from the incurrence of
any such Indebtedness shall be excluded from the pro forma calculation of any applicable ratio or test.
(b) For purposes of calculating any financial ratio or test or Consolidated EBITDA, Specified Transactions (and, subject to clause (d) below,
the incurrence or repayment of any Indebtedness in connection therewith) that have been made (a) during the applicable Test Period or (b) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation
of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any
Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated
with or into Holdings or any Restricted Subsidiary since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.14, then such financial ratio or test
or Consolidated EBITDA shall be calculated to give pro forma effect thereto in accordance with this Section 1.14; provided that with respect to any pro forma calculations to be made in connection with any acquisition or
investment in respect of which financial statements for the relevant target are not available for the same Test Period for which financial statements of Holdings are available, the Borrower shall determine such pro forma calculations on the
basis of the available financial statements (even if for differing periods) or such other basis as determined on a commercially reasonable basis by the Borrower.
(c) Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a
Financial Officer of the Borrower and may include, for the avoidance of doubt the amount of “run rate” cost savings, operating expense reductions and synergies related to any Specified Transaction (including, for the avoidance of doubt,
acquisitions occurring prior to the Closing Date) that are projected by Holdings in good faith to be realized as a result of actions that have been taken or initiated or are expected to be taken or initiated on or prior to the date that is
eight fiscal quarters after the end of the relevant Test Period (including restructuring and integration charges) (which cost savings shall be added to Consolidated EBITDA until fully realized and calculated on a Pro Forma Basis as though
such cost savings had been realized on the first day of the relevant period), net of the amount of actual benefits realized from such actions (it being understood that “run rate” shall mean the full reasonably expected recurring benefit
during the eight fiscal quarter period referred to above that is associated with the relevant action); provided that (A) such cost savings are factually supportable and reasonably identifiable and (B) no amounts shall be added to the
extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period.
(d) In the event that the Company or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by
redemption, repayment, retirement or extinguishment) any Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility or line of credit unless such Indebtedness has been permanently repaid and not replaced and,
for the avoidance of doubt, in the event an item of Indebtedness, or Disqualified Stock (or any portion thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on a ratio basket based on the Cash
Interest Coverage Ratio, First Lien Net Leverage Ratio, Secured Net Leverage Ratio and the Total Net Leverage Ratio, such ratio(s) shall be calculated without regard to the incurrence of any Indebtedness under any revolving facility in
connection therewith), (i) during the applicable Test Period or (ii) subject to paragraph (a), subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is
made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, in each case to the extent required, as if the same had occurred on the last day of the applicable Test
Period (except in the case of the Consolidated Cash Interest Coverage Ratio (or similar ratio), in which case such incurrence, assumption, guarantee, redemption, repayment, retirement or extinguishment of Indebtedness will be given effect as
if the same had occurred on the first day of the applicable Test Period).
(e) 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 the event for which the calculation of the Cash Interest Coverage Ratio is made had been the applicable rate for the entire period (taking into account
any interest hedging arrangements applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a Financial Officer of the Borrower to be the rate of
interest implicit in such Capitalized Lease Obligation in accordance with GAAP. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered
rate, overnight secured rate or other rate shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower or applicable Restricted Subsidiary may designate.
(f) Notwithstanding anything to the contrary in this Section 1.14(g) or in any classification under GAAP of any Person, business,
assets or operations in respect of which a definitive agreement for the asset sale, transfer, disposition or lease thereof has been entered into as discontinued operations, no Pro Forma Effect shall be given to the classification thereof as
discontinued operations (and the Consolidated EBITDA or any component thereof attributable to any such Person, business, assets or operations shall not be excluded for any purposes hereunder) until such asset sale, transfer, disposition or
lease shall have been consummated.
(g) Notwithstanding anything to the contrary in this Agreement, with respect to any Default or Event of Default, the words “exists,” “is
continuing” or similar expressions with respect thereto shall mean that the Default or Event of Default has occurred and has not yet been cured or waived. If any Default or Event of Default (any such Default or Event of Default, an “Initial
Default”) occurs due to (i) the failure by any Loan Party to take any action by a specified time, such Initial Default shall be deemed to have been cured at the time, if any, that the applicable Loan Party takes such action or (ii) the
taking of any action by any Loan Party that is not then permitted by the terms of this Agreement or any other Loan Document, such Initial Default shall be deemed to be cured on the earlier to occur of (x) the date on which such action would
be permitted at such time to be taken under this Agreement and the other Loan Documents and (y) the date on which such action is unwound or otherwise modified to the extent necessary for such revised action to be permitted at such time by
this Agreement and the other Loan Documents. If any Initial Default occurs that is subsequently cured (a “Cured Default”), any other Default or Event of Default resulting from the making or deemed making of any representation or
warranty by any Loan Party or the taking of any action by any Loan Party or any Subsidiary of any Loan Party, in each case, which subsequent Default or Event of Default would not have arisen had the Cured Default not occurred, shall be deemed
to be cured automatically upon, and simultaneous with, the cure of the Cured Default, so long as at the time of such representation, warranty or action, no Responsible Officer of the Borrower had knowledge of such Initial Default.
Notwithstanding anything to the contrary in this Section 1.14(g), any Initial Default may not be cured pursuant to this Section 1.14(g):
(i) if (x) any Loan Party or Subsidiary of a Loan Party takes any action that is not permitted during, and as a result
of, the continuance of such Initial Default, (y) such action results in the cure of such Initial Default and (z) the applicable Loan Party or Subsidiary had actual knowledge at the time of taking any such action that the Initial Default had
occurred and was continuing; or
(ii) in the case of an Event of Default under Sections 7.01(c) (solely with respect to a breach of Section
6.12), 7.01(g), 7.01(h), 7.01(k), 7.01(l) or 7.01(m); or
(iii) in the event that the Administrative Agent, the Collateral Agent or the Required Lenders (through the
Administrative Agent) have commenced any remedies in respect of any such Event of Default; or
(iv) with respect to an Initial Default occurring as a result of a failure by a Loan Party to deliver a notice of an
Event of Default pursuant to Section 5.01(d)(i), such failure was intentional.
Article II
SECTION 2.01
Commitments and Exchange.
(a) On the Closing Date, pursuant to the Amendment (whether by a Credit Conversion or by way of new extensions
of credit) each Term Lender severally agrees to make Refinancing Term Loans available to the Borrower on the Closing Date in accordance with the Refinancing Term Commitment of such Term Lender.
(b) During the Revolving Commitment Period, subject to the terms and conditions hereof, each Lender with a 2024
Other Revolving Commitment severally agrees to make Revolving Loans in Dollars and Euros in an aggregate amount up to but not exceeding such Lender’s 2024 Other Revolving Commitment;
provided, that after giving effect to the making of
any Revolving Loans in no event shall the Total Utilization of Revolving Commitments exceed the 2024 Other Revolving Commitments then in effect. Amounts borrowed pursuant to this
Section 2.01(b) may be repaid and reborrowed during the
Revolving Commitment Period. Each Lender’s 2024 Other Revolving Commitment shall expire on the applicable Revolving Commitment Termination Date and all 2024 Other Revolving Loans and all other amounts owed hereunder with respect to the 2024
Other Revolving Facility and the 2024 Other Revolving Commitments shall be paid in full no later than such date.
(c) On the 2024 Amendment Effective Date, pursuant to the 2024 Refinancing Amendment, each 2024 Other Term Lender severally agrees to make
2024 Other Term Loans (whether by means of a “cashless roll” or by way of new extensions of credit) available to the Borrower on the 2024 Amendment Effective Date in accordance with the 2024 Other Term Commitment of such 2024 Other Term
Lender.
(d) On the 2024-B Amendment Effective Date, pursuant to the 2024-B Refinancing Amendment (whether by a 2024-B Credit Conversion or by way of
new extensions of credit), each Term Lender severally agrees to make 2024-B Term Loans available to the Borrower on the 2024-B Amendment Effective Date in accordance with the 2024-B Refinancing Term Commitment of such Term Lender.
(e) Subject to the terms and conditions set forth in any Incremental Facility Amendment or Refinancing
Amendment providing for, as applicable, the making, exchange, renewal, replacement or refinancing of Loans or Commitments, each Lender party thereto severally agrees to, as applicable, make, exchange, renew, replace or refinance Loans or
Commitments, as applicable, on the date specified therein in an aggregate amount not to exceed the amount of such Lender’s Commitment as set forth therein.
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, no Lender shall be responsible for any other Lender’s failure to make Loans as required hereby.
(b) Subject to Section 2.14, (i) each Term Loan Borrowing denominated in Dollars shall be comprised entirely of ABR Loans or SOFR
Loans, as Holdings may request in accordance herewith, (ii) each Revolving Borrowing denominated in Euros shall be comprised entirely of Eurocurrency Loans and (iii) each Revolving Borrowing denominated in Dollars shall be comprised entirely
of ABR Loans or SOFR Loans as Holdings may request in accordance herewith. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any
exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement, (ii) such Loan shall be deemed to have been made and held by such Lender, and the obligation of the
Borrower to repay such Loan shall nevertheless be to such Lender for the account of such domestic or foreign branch or Affiliate of such Lender and (iii) in exercising such option, such Lender shall use reasonable efforts to minimize
increased costs to the Borrower resulting therefrom (which obligation of such Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated
hereunder or that it otherwise determines would be disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.15 shall apply); provided,
further, that no such domestic or foreign branch or Affiliate of such Lender shall be entitled to any greater indemnification under Section 2.17 with respect to such Loan than that to which the applicable Lender was entitled on the
date on which such Loan was made (except in connection with any indemnification entitlement arising as a result of any Change in Law after the date on which such Loan was made).
(c) At the commencement of each Interest Period for any Term Rate Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000; provided that a Term Rate Borrowing that results from a continuation of an outstanding Term Rate Borrowing may be in an aggregate amount that is equal to such outstanding
Borrowing. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000. Borrowings of more than one Type and Class may be outstanding at
the same time; provided that there shall not at any time be more than a total of eight (8) Term Rate Borrowings outstanding.
SECTION 2.04 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of
the Borrower and the Lenders set forth in this Section 2.04, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in
Australian Dollars, Dollars, Euros, New Zealand Dollars or Sterling for the account of the Borrower or its subsidiaries (so long as the Borrower is a co-applicant and jointly and severally liable thereunder), which Letters of Credit shall not
exceed such L/C Issuer’s Letter of Credit Commitment, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the account of the Borrower or its subsidiaries and any drawings thereunder; provided that, after giving effect to any L/C Credit Extension with respect to any Letter of
Credit, (v) the Outstanding Amount of all L/C Obligations of any L/C Issuer shall not exceed the Letter of Credit Commitment of such L/C Issuer, (w) the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments
then in effect, (x) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of L/C Obligations, shall not exceed such Lender’s Revolving Commitment then in
effect, (y) the Outstanding Amount of L/C Obligations shall not exceed the Letter of Credit Sublimit, and (z) the aggregate Outstanding Amount of the Revolving Loans made by each L/C Issuer, plus the aggregate Outstanding Amount of all
Letters of Credit issued by such L/C Issuer, plus such L/C Issuer’s Applicable Percentage of the Outstanding Amount of L/C Obligations issued by other L/C Issuers shall not exceed such L/C Issuer’s Revolving Commitment at such time. Each
request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) No L/C Issuer shall issue any Letter of Credit, if:
(A) subject to Section 2.04(b)(iii), the expiry date of the requested Letter of Credit would occur more than
twelve months after the date of issuance or last extension, unless the applicable L/C Issuer approves such expiry date; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all
the Lenders and the applicable L/C Issuer have approved such expiry date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or
restrain such L/C Issuer from issuing the Letter of Credit, or any law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer
shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon such L/C Issuer with respect to the Letter of Credit any restriction, reserve
or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing
Date and which such L/C Issuer in good faith deems material to it;
(B) the issuance of the Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of
credit generally;
(C) any Lender is at that time a Defaulting Lender, unless the applicable L/C Issuer has entered into arrangements,
including the delivery of Cash Collateral (in an amount at least equal to 103% of such L/C Issuer’s actual or potential Fronting Exposure), satisfactory to such L/C Issuer (in its sole discretion) with the applicable Revolving Borrower or
such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.22(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or
that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion;
(D) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing
thereunder; or
(E) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is to be denominated
in a currency other than Australian Dollars, Dollars, Euros, New Zealand Dollars or Sterling.
(iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the
Letter of Credit in its amended form under the terms hereof.
(v) An L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no
obligation at such time to issue the Letter of Credit in its amended form under the terms hereof or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith, and the L/C Issuers shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article VIII with respect to any acts taken or omissions suffered by any L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article VIII included such L/C Issuer with respect to such
acts or omissions and (B) as additionally provided herein with respect to each L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to
the applicable L/C Issuer (with a copy to the Administrative Agent) in a form mutually agreed by the Borrower and L/C Issuer, appropriately completed and signed by a Responsible Officer of the Borrower. Such request for L/C Credit Extension
must be received by the applicable L/C Issuer and the Administrative Agent not later than (1) in the case of Letters of Credit denominated in Dollars, 11:00 a.m. at least three Business Days (or such later date and time as the applicable L/C
Issuer may agree in a particular instance in their sole discretion) or (2) in the case of Letters of Credit denominated in Australian Dollars, Euros, New Zealand Dollars or Sterling, 11:00 a.m. at least five Business Days (or such later date
and time as the applicable L/C Issuer may agree in a particular instance in their sole discretion), in each case, prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance
of a Letter of Credit, such Letter of Credit request shall specify in form and detail satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount
and currency thereof; (C) the expiry date thereof (including a final expiration date in the case of an Auto-Extension Letter of Credit); (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other
matters as the applicable L/C Issuer may reasonably require (which may include the form of the requested Letter of Credit). In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the applicable L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the applicable L/C Issuer may reasonably require. Additionally, the Borrower shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of
Credit issuance or amendment, including any Issuer Documents, as the applicable L/C Issuer or the Administrative Agent may reasonably require.
(ii) Promptly after receipt of any request for a Letter of Credit, the applicable L/C Issuer will confirm with the
Administrative Agent (in writing) that the Administrative Agent has received a copy of such Letter of Credit request from the Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
applicable L/C Issuer has received written notice from the Administrative Agent (or any Lender or Loan Party through the Administrative Agent), at least one Business Day prior to the requested date of issuance or amendment of the applicable
Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the applicable L/C Issuer shall, on the requested date, issue a Letter of Credit
for the account of the Borrower (or the applicable subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer’s usual and customary business practices. Each Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation in each Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such
Letter of Credit immediately upon the issuance of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit request, the applicable L/C Issuer may, in its sole
discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such
extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (which shall be a Business Day) (the “Non-Extension
Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Once an Auto-Extension Letter of Credit has been issued, unless otherwise directed by the applicable L/C Issuer, the Borrower
shall not be required to make a specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the applicable L/C
Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the applicable L/C Issuer shall not permit any such extension if (A) such L/C
Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section
2.04(a) or otherwise) or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date from the Administrative Agent (or any Lender or Loan
Party through the Administrative Agent) or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (or a Default or Event of Default has occurred and is continuing), and in each such
case directing such L/C Issuer not to permit such extension.
(iv) If the Borrower so requests in any applicable Letter of Credit request, the applicable L/C Issuer may, in its sole
discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”). Once an
Auto-Reinstatement Letter of Credit has been issued, unless otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer to permit such reinstatement. Once an
Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to reinstate all or a portion of the stated
amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits such L/C Issuer to decline to reinstate all or any portion of the stated amount
thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “Non-Reinstatement Deadline”), such L/C Issuer shall not permit such reinstatement if it has
received a notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Reinstatement Deadline from the Administrative Agent, any Lender or the Borrower that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied (or a Default or Event of Default has occurred and is continuing) (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case,
directing such L/C Issuer not to permit such reinstatement.
(v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with
respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(vi) Anything herein to the contrary notwithstanding, in the event of any conflict between the terms of any Letter of
Credit request and those of this Agreement, the terms of this Agreement shall be controlling.
(c) Provisions Related to Extended Revolving Commitments. If the Letter of Credit Expiration Date in respect of any Class of
Revolving Commitments occurs prior to the expiry date of any Letter of Credit, then (i) if consented to by such L/C Issuer which issued such Letter of Credit, if one or more other Classes of Revolving Commitments under which Letters of Credit
are issued in respect of which the Letter of Credit Expiration Date shall not have occurred are then in effect, such Letters of Credit for which consent of the respective L/C Issuer has been obtained shall automatically be deemed to have been
issued (including for purposes of the obligations of the Revolving Lenders to purchase participations therein and to make Revolving Loans and payments in respect thereof pursuant to Sections 2.04(d) and (e)) under (and ratably
participated in by Revolving Lenders pursuant to) the Revolving Commitments in respect of such non-terminating Classes up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Revolving Commitments thereunder
at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to immediately preceding clause (i) and unless provisions reasonably satisfactory to
the applicable L/C Issuer for the treatment of such Letter of Credit as a letter of credit under a successor credit facility have been agreed upon, the Borrower shall, on or prior to the applicable Maturity Date, cause all such Letters of
Credit to be replaced and returned to the applicable L/C Issuer undrawn and marked “cancelled” or to the extent that the Borrower is unable to so replace and return any Letter(s) of Credit, such Letter(s) of Credit shall be secured by a “back
to back” letter of credit reasonably satisfactory to the applicable L/C Issuer or the Borrower shall provide Cash Collateral for any such Letter of Credit. Commencing with the Maturity Date of any Class of Revolving Commitments, the sublimit
for Letters of Credit shall be agreed solely with such L/C Issuer; provided that, at the request of the Borrower, the Letter of Credit Sublimit immediately following such Maturity Date shall be no less than the Letter of Credit Sublimit
immediately prior to such Maturity Date multiplied by a fraction, the numerator of which is the aggregate amount of the Revolving Commitments immediately following such Maturity Date and the denominator of which is the aggregate amount of the
Revolving Commitments immediately prior to such Maturity Date.
(d) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of a compliant drawing under such Letter of Credit, the
relevant L/C Issuer shall promptly notify the Borrower and the Administrative Agent thereof (including the date on which such payment is to be made). Not later than 12:00 noon, Eastern time, on the first Business Day immediately following any
payment by an L/C Issuer under a Letter of Credit with notice to the Borrower (each such date, an “Honor Date”), the Borrower shall reimburse, or cause to be reimbursed, such L/C Issuer, in each case, through the Administrative Agent
in an amount equal to the Dollar Equivalent of such drawing; provided that, if such reimbursement is not made on the date of payment by the L/C Issuer, the Borrower shall pay interest to the relevant L/C Issuer on such amount at the
rate applicable to ABR Loans (without duplication of interest payable on L/C Borrowings). The relevant L/C Issuer shall notify the Borrower of the Dollar Amount of the drawing promptly following the determination thereof. If the Borrower
fails to so reimburse, or cause to be reimbursed, such L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Lender of the Honor Date, the Dollar Amount of the unreimbursed drawing (the “Unreimbursed Amount”),
and the amount of such Revolving Lender’s Applicable Percentage thereof. In such event, in the case of an Unreimbursed Amount under a Letter of Credit, the Borrower shall be deemed to have requested a Revolving Borrowing of ABR Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of ABR Loans but subject to the requirements for the amount of
the unutilized portion of the Revolving Commitments under the applicable Revolving Facility of the Revolving Lenders and the conditions set forth in Section 4.02 (other than the delivery of a Borrowing Notice).
(ii) Each Revolving Lender (including any Lender acting as an L/C Issuer) shall upon any notice pursuant to
Section
2.04(d)(i) make funds available to the Administrative Agent for the account of the relevant L/C Issuer in Dollars at the Administrative Agent’s Office for payments in an amount equal to its Applicable Percentage of the Unreimbursed
Amount not later than 1:00 p.m., Eastern time, on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of
Section 2.04(d)(iii), each Revolving Lender that so makes funds available
shall be deemed to have made a Revolving Loan that is a ABR Loan to the Borrower in such amount and, for the avoidance of doubt, the making of such
ABR Loans in an aggregate amount equal to such
Unreimbursed Amount shall satisfy the Borrower’s reimbursement obligations with respect thereof. The Administrative Agent shall remit the funds so received to the relevant L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Borrowing of ABR Loans because
the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the relevant L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Lender’s payment to the Administrative Agent for the account of the
relevant L/C Issuer pursuant to Section 2.04(d)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation
under this Section 2.04.
(iv) Until each Revolving Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.04(d) to
reimburse the relevant L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the relevant L/C Issuer.
(v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the applicable L/C Issuer for amounts
drawn under Letters of Credit, as contemplated by this Section 2.04(d), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against any L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(d) is subject to the conditions set forth in Section 4.02 (other than delivery by the
Borrower of a Borrowing Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter
of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any
amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(d) by the time specified in Section 2.04(d)(ii), then, without limiting the other provisions of this Agreement, such L/C
Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is
immediately available to such L/C Issuer at a rate per annum equal to the L/C Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the
foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Revolving Commitment or L/C Advance in respect of the relevant L/C
Borrowing, as the case may be. A certificate of the applicable L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
(e) Repayments of Participations.
(i) At any time after the applicable L/C Issuer has made a payment under any Letter of Credit and has received from any
Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.04(d), if the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof
in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section
2.04(a)(i) is required to be returned upon the insolvency, bankruptcy or reorganization of any Loan Party or otherwise (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Lender shall pay to
the Administrative Agent for the account of such L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a
rate per annum equal to the L/C Overnight Rate. The obligations of the Lenders under this clause shall survive the payment in full of the Secured Obligations and the termination of this Agreement.
(f) Obligations Absolute. The obligation of the Borrower to reimburse the applicable L/C Issuer for each drawing under each Letter of
Credit and to repay each L/C Borrowing (whether made to the Borrower or any of its subsidiaries or its Affiliates) shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement
under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement or any other Loan Document;
(ii) (ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any subsidiary may
have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), any L/C Issuer or any other Person, whether in connection with this
Agreement or the transactions contemplated hereby, or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect, or any statement therein being untrue or inaccurate in any respect, or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a draft or certificate
that does not strictly comply with the terms of such Letter of Credit, or any payment made by the applicable L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver, receiver and manager, curator or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any
Debtor Relief Law;
(v) any adverse change in the relevant exchange rates or in the availability of the relevant currency to the Borrower or
any subsidiary or in the relevant currency markets generally; or
(vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any subsidiary.
Each Revolving Borrower shall promptly examine a copy of each applicable Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim
of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the applicable L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against such L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(g) Role of an L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the applicable
L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer
shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment); or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any
Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to,
and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.04(d); provided, however, that anything in such
clauses to the contrary notwithstanding, the Borrower may have a claim against any L/C Issuer, and such L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrower which the Borrower proves were caused by the willful misconduct or gross negligence of such L/C Issuer or any of its Related Parties (as determined by a court of competent jurisdiction in a final and
non-appealable judgment). In furtherance and not in limitation of the foregoing, any L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or
information to the contrary, and such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder
or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable L/C Issuer and the Borrower when a Letter of
Credit is issued or when it is amended with the consent of the beneficiary thereof, the rules of the ISP shall apply to each standby Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its
Applicable Percentage, in Dollars, a Letter of Credit fee (the “Letter of Credit Fee”) for each standby Letter of Credit equal to the Applicable Rate times the daily amount available to be drawn under such Letter of Credit; provided,
however, any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the applicable L/C Issuer
pursuant to Section 2.22 shall be payable, to the maximum extent permitted by applicable law, to the other Lenders in accordance with the upward adjustments in their respective Applicable Percentage allocable to such Letter of Credit
pursuant to Section 2.22(a)(iv), with the balance of such fee, if any, payable to such L/C Issuer for its own account. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.13. Letter of Credit Fees shall be (i) due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily
amount available to be drawn under each standby Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to applicable L/C Issuer. The Borrower shall pay directly to the
applicable L/C Issuer for its own account, in Dollars, a fronting fee with respect to each standby Letter of Credit, at the rate per annum equal to 0.125% per annum, computed on the Dollar Equivalent of the daily amount available to be drawn
under such Letter of Credit on a quarterly basis in arrears (the “Fronting Fee”). Such fronting fee shall be due and payable on the last Business Day after the end of each March, June, September and
December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.13. In
addition, the Borrower shall pay directly to the applicable L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer
relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the
terms hereof shall control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support
of any obligations of, or is for the account of, a subsidiary, the Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the
issuance of Letters of Credit for the account of subsidiaries inures to the benefit of the Borrower, and that the Borrower’s businesses derive substantial benefits from the businesses of such subsidiaries.
(m) Resignation as L/C Issuer. Any L/C Issuer (unless it is the sole L/C Issuer, in which case, so long as a replacement L/C Issuer
reasonably acceptable to the Borrower has agreed to assume the responsibilities of the L/C Issuer, such L/C Issuer) may, upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer. In the event of any such resignation as L/C
Issuer, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation of any L/C Issuer;
provided, further, that the resignation of such L/C Issuer shall only become effective upon the payment of all fees and other amounts due and owing hereunder by such successor to such resigning L/C Issuer. If HSBC or another Lender resigns as
L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit that it issued, including Letters of Credit outstanding as of the effective date of its resignation as
L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Revolving Loans that are ABR Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.04(d)). Upon the
appointment of a successor L/C Issuer and upon the acceptance of such appointment by such successor L/C Issuer, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C
Issuer as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the applicable
L/C Issuer to effectively assume the obligations of such L/C Issuer with respect to such Letters of Credit and the successor L/C Issuer shall arrange for the return and cancellation of all such Letters of Credit to the resigning L/C Issuer.
(n) Existing Letters of Credit. Subject to the terms and conditions hereof, each Existing Letter of Credit shall, effective as of the
Closing Date and without any further action by any Borrower, be continued as a Letter of Credit hereunder and from and after the Closing Date be deemed a Letter of Credit for all purposes hereof and be subject to and governed by the terms and
conditions hereof.
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 no later than, in the case of a Borrowing on the Closing Date, 10:00 a.m., New York City time, and otherwise 2:00 p.m. New York City Time on the Business Day specified in the applicable Borrowing Notice, in each
case, to the Applicable 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 either (a) promptly crediting
the amounts so received, in like funds, to an account or accounts of the Borrower maintained with the Administrative Agent or (b) by wire transfer of such funds, in each case, in accordance with instructions provided by the Borrower to (and
reasonably acceptable to) the Administrative Agent in the applicable Borrowing Notice;
provided that if on the date the Borrowing Notice with respect to a Borrowing under a Revolving Facility is
given by the Borrower (other than with respect to the Closing Date Revolving Borrowing), there are L/C Borrowings outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment in full of any such L/C Borrowing and
second, to the Borrower as provided above.
(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 on 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 agrees to pay to the Administrative Agent an amount equal to such share on demand of the Administrative Agent. If such Lender does not pay such corresponding amount forthwith upon demand
of the Administrative Agent therefor, the Administrative Agent shall promptly notify the Borrower and the Borrower agrees to pay such corresponding amount to the Administrative Agent forthwith on demand. The Administrative Agent shall also
be entitled to recover from such Lender or the Borrower interest on such corresponding amount, 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, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to such Borrowing in accordance with
Section 2.13. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.
Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(c) Obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 9.03(c) are several and not joint.
The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 9.03(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such
date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 9.03(c).
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 Rate 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 different Type or to
continue such Borrowing and, in the case of a Term Rate Borrowing, may elect Interest Periods therefor, all as provided in this Section. For the avoidance of doubt, the Borrower may not convert one Type of Term Rate Borrowing to a different
Type of Term Rate Borrowing (other than as expressly provided in Section 2.14). 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 by (a) telephone or
(b) delivery (by hand delivery, facsimile or other electronic transmission) of a written Interest Election Request signed by the Borrower; provided that any telephonic notice by the Borrower must be
confirmed immediately by delivery to the Administrative Agent of a written Interest Election Request. Each such notice must be received by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a 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 upon delivery.
(c) Each Interest Election Request shall specify the following information in compliance with Section 2.03:
(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, a Eurocurrency Borrowing or
a SOFR Borrowing; and
(iv) if the resulting Borrowing is to be a Term Rate 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 Rate 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 in accordance with this Section, 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.
(e) If the Borrower fails to give a timely Interest Election Request, then the applicable Loans shall be made or continued as the same Type
of Loan, which if a Term Rate Borrowing, shall have a one-month Interest Period. Any such automatic continuation of Term Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable
Term Rate Loans. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing, no outstanding Borrowing may be converted to a Term Rate Borrowing.
SECTION 2.08
Termination and Reduction of Commitments. The
Borrower may at any time terminate, or from time to time reduce, the Commitments of any Class in accordance with clauses (a) and (b) below; provided that each 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.
(a) Optional. The Borrower may, upon written notice by the Borrower to the Administrative Agent, terminate the unused Commitments of
any Class, or from time to time permanently reduce the unused Commitments of any Class, in each case without premium or penalty; provided that:
(i) any such notice shall be received by the Administrative Agent three (3) Business Days prior to the date of
termination or reduction;
(ii) any such partial reduction shall be in an aggregate amount of $5.0 million or any whole multiple of $1.0 million in
excess thereof or, if less, the entire amount thereof;
(iii) any Commitment reduction or termination shall be in an amount up to the amount by which the Revolving Commitments
exceed the Total Utilization of Revolving Commitments at the time of such proposed termination or reduction; and
(iv) if, after giving effect to any reduction of the Commitments, the L/C Sublimit exceeds the amount of the Revolving
Facility, the L/C Sublimit shall be automatically reduced by the amount of such excess.
Except as provided above, the amount of any such Revolving Commitment reduction shall not be applied to the L/C Sublimit unless otherwise specified by the Borrower.
(b) Mandatory.
(i) Unless previously terminated, the 2024-B Term Commitments shall terminate upon the making of the 2024-B Term Loans on
the 2024-B Amendment Effective Date.
(ii) Unless previously terminated, the 2024 Other Revolving Commitments shall terminate on the Revolving Commitment
Termination Date.
(iii) Unless previously terminated, the 2024 Other Term Commitments shall terminate upon the making of the 2024 Other
Term Loans on the 2024 Amendment Effective Date.
(c) Promptly following receipt of any notice of a commitment termination or reduction, the Administrative Agent shall advise the Lenders of
the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination of any Commitments delivered by the Borrower may state that such notice is conditioned
upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of some other identifiable event or condition, 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 of termination) 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.
SECTION 2.09
Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promise to pay to the Administrative Agent for the account of each Lender the then unpaid principal
amount of each Loan of such Lender 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.
(c) The Administrative Agent shall 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 or interest 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) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein, provided that the failure of any Lender or the Administrative Agent to maintain such accounts 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, the accounts
maintained by the Administrative Agent pursuant to paragraph (c) of this Section shall control.
(e) Any Lender may request through the Administrative Agent that Loans of any Class made by it be evidenced by
a promissory note. In such event, the Borrower shall execute and deliver to such Lender a promissory note payable to such Lender or its registered assigns and in a form provided by the Administrative Agent and approved by the Borrower.
SECTION 2.10
Repayment of Loans.
(a) Subject to adjustment pursuant to paragraph (e) of this Section 2.10, the Borrower shall repay to the Administrative Agent for
the ratable account of each Term Lender holding a 2024-B Term Loan, on the last Business Day of each March, June, September and December (commencing with the second full fiscal quarter after the 2024-B Amendment Effective Date), the principal
amount of 2024-B Term Loans equal to (x) the aggregate outstanding principal amount of 2024-B Term Loans immediately after the funding thereof on the 2024-B Amendment Effective Date multiplied by (y) 0.25%. In connection with any Incremental
Term Loans that constitute part of the same Class as the 2024-B Term Loans, the Borrower and the Administrative Agent shall be permitted to adjust the rate of prepayment in respect of such Class such that the Term Lenders holding 2024-B Term
Loans comprising part of such Class continue to receive a payment that is not less than the same Dollar amount that such Term Lenders would have received absent the incurrence of such Incremental Term Loans; provided, that if such
Incremental Term Loans are to be “fungible” with the 2024-B Term Loans notwithstanding any other conditions specified in this Section 2.10(a), the amortization schedule for such “fungible” Incremental Term Loan may provide for
amortization in such other percentage(s) to be agreed by Borrower and the Administrative Agent to ensure that the Incremental Term Loans will be “fungible” with the 2024-B Term Loans. Any prepayment of 2024-B Term Loans pursuant to Section
2.10(a) shall be applied to reduce the subsequent scheduled and outstanding repayments of the 2024-B Term Loans as directed by the Borrower (and absent such direction in direct order of maturity).
(b) The Borrower shall repay to the Administrative Agent for the ratable account of each Term Lender holding a 2024 Other Term Loan, on the
last Business Day of each March, June, September and December (commencing with the second full fiscal quarter after the 2024 Amendment Effective Date), the principal amount of 2024 Other Term Loans equal to (x) the aggregate outstanding
principal amount of 2024 Other Term Loans immediately after the funding thereof on the 2024 Amendment Effective Date multiplied by (y) 0.25%.
(c) [Reserved].
(d) To the extent not previously paid, all Term Loans shall be due and payable on the Term Maturity Date.
(e) The Borrower shall repay to the Administrative Agent for the ratable account of the Revolving Lenders on the applicable Revolving
Maturity Date for the applicable Revolving Facility the aggregate principal amount of all Revolving Loans under such facility outstanding on such date.
SECTION 2.11
Prepayment of Loans.
(a) Optional Prepayments.
(i) Voluntary Prepayments. 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 Section 2.12(d)); provided that:
(A) The Borrower shall deliver a Notice of Prepayment to the
Administrative Agent not later than (i)(x)11:00 a.m., New York time, three (3) Business Days prior to any date of prepayment of Eurocurrency Loans and (y) 11:00 a.m., New York time, three (3) U.S. Government Securities Business Days prior to
any date of prepayment of SOFR Loans and (ii) 1:00 p.m., New York time, on the date of prepayment of ABR Loans;
(B) any prepayment of Term Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof or, if less, the entire principal amount thereof then outstanding; and
(C) any prepayment of
ABR Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof or, if less, the entire principal amount thereof then outstanding.
(ii) Dutch Auction Procedures. Notwithstanding anything
in any Loan Document to the contrary, so long as no Default or Event of Default has occurred and is continuing, a Loan Party may (i) purchase outstanding Term Loans on a non-pro rata basis through open market purchases or (ii) prepay the
outstanding Term Loans in accordance with the Dutch Auction Procedures.
(iii) Provisions Regarding Voluntary Prepayments.
(A) Each Notice of Prepayment shall specify the date and amount of such prepayment, and the Class(es) and Type(s) of Loans
to be prepaid and such notice shall be irrevocable; provided that a notice of optional prepayment may state that such notice is conditional upon the effectiveness of other credit facilities or the receipt of the proceeds from the
issuance of other Indebtedness or the occurrence of some other identifiable refinancing event or condition, in which case such notice of prepayment 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.
(B) Promptly following receipt of any such Notice of Prepayment, the Administrative Agent shall advise the Lenders of the
contents thereof and of the amount of such Lender’s pro rata share of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such Notice of Prepayment shall be due and payable on the date specified therein.
(C) Each prepayment in respect of any Term Loans pursuant to Section 2.11(a)(i) may be applied to any Class or
Classes of Term Loans as directed by the Borrower in its sole discretion. Voluntary prepayments of any Class of Term Loan permitted hereunder shall be applied to the remaining scheduled installments of principal thereof pursuant to Section
2.10(a) in a manner determined at the sole discretion of the Borrower and specified in the notice of prepayment, and on a pro rata basis among Class or Classes of Term Loans that the Borrower
selects to prepay. In the event that the Borrower does not specify which Classes or Classes to prepay or the order in which to apply prepayments to reduce scheduled installments of principal, the Borrower shall be deemed to have elected that
such proceeds be applied to reduce the scheduled installments of principal in direct order of maturity on a pro rata basis among all Term Loan Classes. In the absence of a designation by the Borrower
as described in the preceding provisions of this paragraph of the Type of Borrowing of any Class, the Administrative Agent shall make such designation in its reasonable discretion with a view, but no obligation, to minimize breakage costs
owing under Section 2.16.
(b) Asset Sales; Recovery Events. In the event and on each occasion that
any Net Proceeds are received by or on behalf of Holdings or any Restricted Subsidiary in respect of any Prepayment Event, the Borrower shall, within 10 Business Days after such Net Proceeds are received, prepay Term Loan Borrowings in an
aggregate amount equal to:
(i) in the case of a Prepayment Event pursuant to clause (a) of such definition, the applicable Asset Sale and Recovery
Event Prepayment Percentage of such Net Proceeds;
(ii) in the case of any other Prepayment Event pursuant to clause (b) of such definition, 100% of the amount of such Net
Proceeds,
provided that, in the case of any Prepayment Event pursuant to clause (a) of such definition, if Holdings or any of its Restricted Subsidiaries invest (or commit to invest) the Net
Proceeds from such event (or a portion thereof) within 18 months after receipt of such Net Proceeds by Holdings and the Restricted Subsidiaries (including any Investments permitted under Section 6.04, then no prepayment shall be
required pursuant to this paragraph in respect of such Net Proceeds in respect of such event (or the applicable portion of such Net Proceeds, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so
invested (or committed to be invested) by the end of such 18-month period (or if committed to be so invested within such 18-month period, have not been so invested within 6 months after the end of the 18-month period), at which time a
prepayment shall be required in an amount equal to such Net Proceeds that have not been so invested (the date of such required prepayment (the “Reinvestment Prepayment Date”), provided further that prior to any
Reinvestment Prepayment Date such Net Proceeds may be applied to prepay Revolving Borrowings in the sole discretion of the Borrower.
(c) Excess Cash Flow. Following the end of each fiscal year of Holdings, commencing with the fiscal year
ending December 31, 2022 (the “
Excess Cash Flow Period”), the Borrower shall prepay (or cause to be prepaid) Term Loan Borrowings in an aggregate amount equal to the ECF Percentage of Excess Cash Flow for such fiscal year;
provided
that such amount shall be reduced dollar-for-dollar, at the option of the Borrower, by the aggregate amount (other than any amount applied to reduce the prepayment required under this paragraph in respect of any prior year) of:
(i) voluntary prepayments of Term Loans made pursuant to Section 2.11(a) during such fiscal year or after such
fiscal year and prior to the time such prepayment is due as provided below (provided that such reduction as a result of prepayments pursuant to clause 2.11(a)(ii) shall be limited to the actual amount of such cash prepayment),
(ii) voluntary prepayments or repurchases of Credit Agreement Refinancing Indebtedness, Indebtedness under Incremental
Facilities, Ratio Indebtedness or Incremental Equivalent Debt that are, in each case, secured by the Collateral on a pari passu basis with the Term Loans and 2024 Other Revolving Loans (provided
that (x) in the case of the prepayment of any revolving indebtedness, there is a corresponding permanent reduction in revolving commitments and (y) in the event of any repurchase of Indebtedness, such reduction shall be limited to the actual
amount of such cash payment) during such fiscal year or after such fiscal year and prior to the time such prepayment is due,
(iii) the amount of any reduction in the outstanding amount of any Term Loans, Credit Agreement Refinancing Indebtedness,
Ratio Indebtedness or Incremental Equivalent Debt resulting from any assignment made in accordance with Section 9.04(d) of this Agreement (or similar lender replacement provision in the documents governing such other Indebtedness)
during such fiscal year or after such fiscal year and prior to the time such prepayment is due as provided below, in an amount equal to the actual amount of cash paid in connection with the relevant assignment,
(iv) (x) prepayments of Revolving Loans made pursuant to Section 2.11(a)(i) and (y) prepayments of any other
revolving loans under any revolving facility (other than under the Revolving Facility or any Incremental Revolving Facility) that is secured, in whole or in part, by the Collateral on a pari passu
basis with the 2024 Other Revolving Loans (but without regard to the control of remedies) (in each case of this clause (iv), to the extent accompanied by a permanent reduction in the corresponding revolving commitments), during such fiscal
year or after such fiscal year and prior to the time such prepayment is due, and
(v) the amount of Capital Expenditures, Capitalized Software Expenditures or acquisitions of intellectual property accrued
or made in cash during such period during such fiscal year or after such fiscal year and prior to the time such prepayment is due,
provided that in the case of the payments described in the foregoing clauses (i), (ii), (iii), (iv) and (v) of this proviso, only to the extent such payments are not
funded with the proceeds of long-term Indebtedness (other than any Indebtedness under a Revolving Facility or any other revolving credit facilities);
provided,
further that an Excess Cash Flow payment pursuant to this
Section
2.11(c) shall only be required with respect to amounts in excess of the greater of (A) $35,000,000 and (B) 5.00% of Consolidated EBITDA for any Excess Cash Flow Period (and only such excess amount shall be applied to the payment
thereof).
Each prepayment pursuant to this paragraph shall be made on or before the date that is ten Business Days after the date on which financial statements are required to be delivered pursuant to
Section
5.01 with respect to the fiscal year for which Excess Cash Flow is being calculated.
(d) Exceeding Revolving Commitments. If for any reason the aggregate Outstanding Amount of Revolving Loans and L/C Obligations at any
time exceeds the aggregate Revolving Commitments then in effect, the Borrower shall promptly (but in any event, within one Business Day) prepay Revolving Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such
excess; provided that the Borrower shall not be required to Cash Collateralize any other L/C Obligations pursuant to this Section 2.11(d).
(e) Other Applicable Indebtedness. In the case of any mandatory prepayment pursuant to Section 2.11(b)(i) or (c),
Holdings may use a portion of such Net Proceeds or Excess Cash Flow, as applicable, in respect of any such fiscal year that would otherwise be required to be applied to prepay Term Loan Borrowings, to prepay or repurchase on a pro rata basis any other Indebtedness that is secured by the Collateral on a pari passu basis with the Term Loan Borrowings, to the extent such other Indebtedness
and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Prepayment Event or with such Excess Cash Flow, as
applicable, in each case in an amount not to exceed the product of (x) the amount of such Net Proceeds or Excess Cash Flow and (y) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness and the
denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness and such amount so used shall reduce on a Dollar-for-Dollar basis, any prepayment amount due hereunder in respect of such Net
Proceeds or Excess Cash Flow.
(f) Order of Payments; Decline Proceeds. Prior to any mandatory prepayment of Borrowings hereunder, the Borrower shall, in its sole
discretion, select the Borrowing or Borrowings to be prepaid and shall specify such selection in a Notice of Prepayment. In the event of any mandatory prepayment of Term Loan Borrowings made at a time when more than one Class of Term Loans
remains outstanding, the Borrower shall, in its sole discretion, select any Class or
Classes of Term Loan Borrowings to be prepaid so that the aggregate amount of such prepayment is
allocated among the Class or Classes of Term Loan Borrowings selected by the Borrower pro rata based on the aggregate principal amount of outstanding Borrowings of each such Class (or less than pro rata so long as the lenders of such Class of
loans to be prepaid on a less than pro rata basis agree to such less than pro rata amount);
provided that any mandatory prepayment of (x) Term Loans with the proceeds of Indebtedness incurred pursuant to
Section 2.21, shall be
applied to the Class of Term Loans being refinanced pursuant thereto or (y) Term Loans with the proceeds of any Credit Agreement Refinancing Indebtedness issued to the extent permitted under
Section 6.01(a), shall be applied to the
Class of Term Loans being refinanced pursuant thereto;
provided further that any Term Lender (and, to the extent provided in the Refinancing Amendment or Loan Modification Offer for any Class of Other Term Loans, any Lender
that holds Other Term Loans of such Class) may elect, by written notice to the Administrative Agent at least one Business Day prior to the prepayment date, to decline all (but not a portion of) any prepayment of its Term Loans or Other Term
Loans of any such Class pursuant to this Section (other than an optional prepayment pursuant to
Section 2.11(a)(i) of this Section or a mandatory prepayment as a result of the Prepayment Event set forth in
clause (b) of the
definition thereof solely to the extent such prepayment represents a refinancing of the Term Loans, which may not be declined), in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans or Other
Term Loans of any such Class but was so declined shall be retained by the Borrower and the Restricted Subsidiaries (such amounts, “
Retained Declined Proceeds”). In the absence of a designation by the Borrower as described in the
preceding provisions of this paragraph of the Type of Borrowing of any Class, the Administrative Agent shall make such designation in its reasonable discretion with a view, but no obligation, to minimize breakage costs owing under
Section
2.16. In the event that the Borrower does not specify the order in which to apply prepayments to reduce scheduled installments of principal or as between Classes of Term Loans, the Borrower shall be deemed to have elected that such
proceeds be applied to reduce the scheduled installments of principal in direct order of maturity on a pro rata basis among all Term Loan Classes.
(g) Notice of Prepayment. The Borrower shall notify the Administrative Agent of any mandatory prepayment
(to the extent practicable) hereunder by delivering a Notice of Prepayment to the Administrative Agent (i) in the case of prepayment of a Term Rate Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days (and U.S.
Government Securities Business Days in the case of SOFR Borrowing) before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 1:00 p.m., New York City time, on the date of prepayment (or in each case,
such shorter period as agreed between the Borrower and the Administrative Agent). Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and a
reasonably detailed calculation of the amount of such prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. At the Borrower’s election in connection with any prepayment pursuant
to this Section 2.11, such prepayment shall not be applied to any Loans of a Defaulting Lender and shall be allocated ratably among the relevant non-Defaulting Lenders.
(h) Foreign Prepayment Event. Notwithstanding any other provisions of
Section
2.11(b) or
Section 2.11(c), (A) to the extent that any of or all the Net Proceeds of any Prepayment Event set forth in
clause (a) of the definition thereof by a Foreign Subsidiary giving rise to a prepayment pursuant to
Section 2.11(b) (a “
Foreign Prepayment Event”) or Excess Cash Flow of a Foreign Subsidiary giving rise to a payment pursuant to
Section 2.11(c) are prohibited by or would violate or conflict with any Requirement of Law
from being repatriated to the Borrower or would conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any
officer, director, employee, manager, member or management or consultant of such Foreign Subsidiary, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided
in
Section 2.11(b) or
Section 2.11(c), as the case may be, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable Requirement of Law will not permit repatriation to
the Borrower (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to use commercially reasonable efforts to promptly take all actions required by the applicable Requirement of Law to permit such repatriation), and once
such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law, such repatriation will be promptly effected and such repatriated Net Proceeds or Excess Cash Flow will be
promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to
Section 2.11(b) or
Section 2.11(c), 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 consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation in the year of such repatriation), including any withholding tax, with respect to such Net Proceeds
or Excess Cash Flow if such amount were repatriated as a dividend, the Net Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans (or other Loans required to be prepaid) at the times provided in
Section
2.11(b) or
Section 2.11(c), as the case may be, and such amounts may be retained by the applicable Foreign 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 (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation in the year of
such repatriation) with respect to such Net Proceeds or Excess Cash Flow if such amount were repatriated as a dividend, such Net Proceeds or Excess Cash Flow shall be promptly (and in any event not later than five Business Days after such
repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to
Section 2.11(b) or
Section 2.11(c), as applicable and (C) in connection with any
prepayment attributable to any joint venture, to the extent that repatriation of any or all of the Net Proceeds of any Foreign Prepayment Event or Excess Cash Flow of a Foreign Subsidiary giving rise to a prepayment pursuant to
Section
2.11(b) or
Section 2.11(c), violate any organizational document of any joint venture (or any relevant shareholders’ or similar agreement) existing on the Closing Date or the date of investment in such joint venture (so long as
such restrictions in such organizational documents were not entered into for purposes of circumventing such joint venture’s obligations to make any payment in respect of such Excess Cash Flow or a Foreign Prepayment Event), in each case if
the amount subject to the relevant prepayment were upstreamed or transferred as a distribution or dividend the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times
provided in
Section 2.11(b) or
Section 2.11(c), as the case may be, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable organizational documents will not permit
repatriation to the Borrower, and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable organizational documents, such repatriation will be promptly effected and such repatriated Net
Proceeds or Excess Cash Flow will be promptly (and in any event not later than five (5) Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term
Loans pursuant to
Section 2.11(b) or
Section 2.11(c), as applicable.
(a) 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.
(b) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender under the 2024 Other Revolving Facility
in accordance with its Applicable Percentage, a commitment fee equal to the applicable Commitment Fee Rate times the actual daily amount by which the aggregate 2024 Other Revolving Commitments exceed the sum of (a) the Outstanding Amount of
2024 Other Revolving Loans and (b) the Outstanding Amount of L/C Obligations; provided that any commitment fee accrued with respect to any of the Commitments of a Defaulting Lender under such
Revolving Facility during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such
commitment fee shall otherwise have been due and payable by the Borrower prior to such time; and provided further that no commitment fee shall accrue on any of the Commitments under any Revolving
Facility of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. The commitment fee on each Revolving Commitment shall accrue at all times from the Closing Date (or date of initial effectiveness, as applicable) until the
Revolving Maturity Date for the applicable Revolving Commitment, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each of
March, June, September and December, commencing with June 30, 2021, and on the Revolving Maturity Date for such Revolving Facility. The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Commitment Fee
Rate during any quarter, the actual daily amount shall be computed and multiplied by the Commitment Fee Rate separately for each period during such quarter that such Commitment Fee Rate was in effect.
(c) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent. Fees paid
hereunder shall not be refundable under any circumstances.
(d) In the event that, on or prior to the sixth month anniversary of (x) the 2024-B Amendment Effective Date, with respect to 2024-B Term
Loans or (y) the 2024 Amendment Effective Date, with respect to 2024 Other Term Loans, the Borrower (A) makes any voluntary prepayment of 2024-B Term Loans or 2024 Other Term Loans, as applicable, (with any replacement of a Non-Accepting
Lender pursuant to Section 2.24 or any of the mandatory prepayments described in Section 2.11(b), with respect to the incurrence of Indebtedness, in each case being deemed, for this purpose, to constitute a voluntary
prepayment) in connection with any Repricing Transaction the primary purpose of which is to decrease the Effective Yield on such applicable Class of Term Loans (as determined by Holdings acting in good faith) or (B) effects any amendment of
this Agreement resulting in a Repricing Transaction the primary purpose of which (as determined by Holdings acting in good faith) is to decrease the Effective Yield on such applicable Class of Term Loans, the Borrower shall pay to the
Administrative Agent, for the ratable account of each of the Lenders holding such applicable Class of Term Loans, (x) a prepayment premium of 1.00% of the principal amount of such applicable Class of Term Loans being prepaid in connection
with such Repricing Transaction and (y) in the case of clause (B), an amount equal to 1.00% of the aggregate amount of such applicable Class of Term Loans outstanding immediately prior to (and subject to) such amendment that are subject to an
effective pricing reduction pursuant to such Repricing Transaction (including the principal amount of any such applicable Class of Term Loans of any Non-Accepting Lender which are required to be assigned in accordance with Section 2.24
as a result of such Non-Accepting Lender’s failure to consent to such amendment).
(e) Notwithstanding the foregoing, and subject to
Section 2.22, the Borrower shall not be obligated to
pay any amounts to any Defaulting Lender pursuant to this
Section 2.12.
(a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable
Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear interest at EURIBOR for the Interest Period in
effect for such Borrowing
plus the Applicable Rate.
(c) The Loans comprising each SOFR Borrowing shall bear interest at Adjusted Term SOFR for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
(d) Notwithstanding the foregoing, after the occurrence and continuance of a Specified Event of Default, if any principal of or interest on
any Loan or any premium or fee by the Borrower is not paid when due, whether at stated maturity, upon acceleration or otherwise, the relevant overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to
(i) in the case of any overdue principal or interest 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 amount, 2.00% per annum
plus the rate applicable to Term Loans that are ABR Loans as provided in paragraph (a) of this Section (the “Default Rate”); provided that no amount shall be payable pursuant to this Section
2.13(c) to a Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(e) Accrued interest on each Loan shall be payable by the Borrower in arrears on each Interest Payment Date for such Loan, 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, 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 any Term Rate 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.
(f) All computations of interest for ABR Loans (when the Alternate Base Rate is based on the “prime rate”) shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed. Interest shall accrue on each Loan for the day on which
the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall bear interest for one
day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
SECTION 2.14
Alternate Rate of Interest.
Subject to Section 2.14(c), if at least two
(2) Business Days prior to the commencement of any Interest Period for a Term Rate Borrowing:
(a) the Administrative Agent determines (which determination shall be conclusive
absent manifest error) that adequate and reasonable means do not exist for ascertaining EURIBOR,or Adjusted Term SOFR, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that EURIBOR or Adjusted Term SOFR, as applicable, for 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 such Interest Period,
then the Administrative Agent shall give written notice thereof to Holdings and the Lenders by hand delivery, facsimile or other electronic transmission as promptly as practicable thereafter and, until the Administrative Agent notifies
Holdings and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing or a
SOFR Borrowing, as applicable, shall be ineffective and (ii) if any Borrowing Request requests a Eurocurrency Borrowing or a SOFR Borrowing, as applicable, then such Borrowing shall be made as an ABR Borrowing and the utilization of the Term
SOFR component in determining the Alternate Base Rate shall be suspended; provided, however, that, in each case, Holdings may revoke any Borrowing Request that is pending when such notice is received.
(c) Benchmark Replacement.
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 any setting of the then-current
Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) 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 (b) 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 Daily Simple SOFR, all interest payments will be payable on a monthly basis.
(ii) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark
Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes
will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) Notices; Standards for Decisions and Determinations.
The Administrative Agent will promptly notify
the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes 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(c)(iv) and (y) the commencement 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.
(iv) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any
time (including in connection with the implementation of a Benchmark Replacement), (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 not 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 not 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.
(v) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period,
the Borrower may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to
have converted any such request into a request for a Borrowing of or conversion to ABR Loans. 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.
SECTION
2.15
Increased 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 by, any Lender; or
(ii) impose on any Lender any other condition, cost or expense (other than with respect to Taxes) affecting this
Agreement or Loans made by such Lender or participation therein; or
(iii) subject the Administrative Agent or any Lender to any Taxes on its Loans, 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 the Administrative Agent or such Lender of making or maintaining any Loan (or of maintaining its obligation to make any such Loan or of
observing or performing its obligations under any Loan Document) or to reduce the amount of any sum received or receivable by the Administrative Agent or such Lender hereunder (whether of principal, interest or otherwise), then, from time to
time upon request of the Administrative Agent or such Lender, the Borrower will pay (or cause to be paid) to the Administrative Agent or such Lender, as the case may be, such additional amount or amounts as will compensate the Administrative
Agent or such Lender, as the case may be, for such increased costs actually incurred or reduction actually suffered,
provided that the Borrower shall not be liable for such compensation if, in the case of requests for reimbursement
under
clause (ii) above resulting from a market disruption, (A) the relevant circumstances are not generally affecting the banking market or (B) the applicable request has not been made by Lenders constituting Required Lenders;
provided,
further, that to the extent any such costs or reductions are incurred by any Lender as a result of any requests, rules, guidelines or directives enacted or promulgated under the Dodd-Frank Wall Street Reform and Consumer Protection Act of
2010 or Basel III, then such Lender shall be compensated pursuant to this
Section 2.15(a) only to the extent such Lender is imposing such charges on similarly situated borrowers where the terms of other syndicated credit facilities
permit it to impose such charges. Notwithstanding the foregoing, this paragraph will not apply to (A) Indemnified Taxes, (B) Other Taxes or (C) Excluded Taxes.
(b) If any Lender determines that any Change in Law regarding capital or liquidity requirements has the effect
of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by such Lender, to a level below that which such Lender or such Lender’s
holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or policies and the policies of such Lender’s holding company with respect to capital adequacy and liquidity), then, from time to time
upon request of such Lender contemplated by
clause (c) below, the Borrower will pay or cause to be paid to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s or holding company for any such
reduction actually suffered.
(c) Any Lender requesting compensation under this Section 2.15 shall be required to deliver a certificate to Holdings, (i) setting
forth the amount or amounts necessary to compensate such Lender or its holding company in reasonable detail, as the case may be, as specified in paragraph (a) or (b) of this Section, (ii) setting forth, in reasonable detail, the manner in
which such amount or amounts were determined and (iii) certifying that such Lender is generally charging such amounts to similarly situated borrowers to the extent required above, which certificate shall be conclusive absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any such certificate within 15 days after receipt thereof.
(d) Failure or delay on the part of any Lender
to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation,
provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any
increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender notifies Holdings of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim
compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16
Break Funding Payments. In the event of (a) the payment of any principal of any Term Rate 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 Rate Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay
any Incremental Revolving Loan or Term Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under
Section 2.03 or
Section 2.11(a)(iii)(A), and is revoked in
accordance therewith) or (d) the assignment of any Term Rate 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 or
Section 9.02(d), then,
in any such event, the Borrower shall, after receipt of a written request by any Lender affected by any such event (which request shall set forth in reasonable detail the basis for requesting such amount), compensate each Lender for the
actual loss, cost and expense incurred by such Lender attributable to such event (other than loss of profit). Any Lender requesting compensation under this
Section 2.16 shall be required to deliver a certificate to Holdings setting
forth any amount or amounts that such Lender is entitled to receive pursuant to this Section, the basis therefor and, in reasonable detail and the manner in which such amount or amounts were determined, which certificate shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 15 days after receipt of such demand. Notwithstanding the foregoing, this
Section 2.16 will not apply to losses, costs
or expenses resulting from Taxes, as to which
Section 2.17 shall govern.
(a) Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be
made free and clear of and without deduction or withholding for any Taxes, provided that if the applicable Withholding Agent shall be required by applicable Requirements of Law (as determined in the good faith discretion of the applicable
Withholding Agent) to deduct or withhold any Taxes from such payments, then (i) the applicable Withholding Agent shall make such deductions or withholdings, (ii) the applicable Withholding Agent shall timely pay the full amount deducted or
withheld to the relevant Governmental Authority in accordance with applicable Requirements of Law and (iii) if the Tax in question is an Indemnified Tax or Other Tax, the amount payable by the applicable Loan Party shall be increased (or, in
the case of an Australian Loan Party, such Australian Loan Party shall pay an additional amount) as necessary so that after all required deductions and withholdings have been made (including deductions and withholdings applicable to
additional amounts payable under this
Section 2.17) the Lender, Administrative Agent, or other applicable recipient receives an amount equal to the sum it would have received had no such deductions or withholdings been made.
(b) [reserved].
(c) Without limiting the provisions of paragraph (a) above, the Loan Parties shall timely pay to the relevant Governmental Authority in
accordance with Requirements of Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) The Loan Parties shall indemnify the Administrative Agent and each Lender, within 30 days after written demand therefor, for the full
amount of any Indemnified Taxes payable or paid by, or required to be withheld or deducted from a payment to, the Administrative Agent or such Lender, as the case may be, and any Other Taxes (including Indemnified Taxes or Other Taxes imposed
or asserted on or attributable to amounts payable under this Section 2.17) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority. A certificate setting forth in reasonable detail the basis and calculation of the amount of such payment or liability delivered to Holdings 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) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a 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.
(f) Each Lender shall deliver to Holdings and the Administrative Agent at the time or times reasonably requested
by Holdings or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Requirements of Law and such other documentation reasonably requested by Holdings or the Administrative Agent (i) as will
permit such payments to be made without, or at a reduced rate of, withholding or (ii) as will enable Holdings 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 sentence, the completion, execution and submission of such documentation (other than such documentation set forth in
Section 2.17(f)(1)-(2) below) 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.
Each Lender shall, whenever a lapse of time or change in circumstances renders such documentation obsolete, expired or inaccurate in any material respect, deliver promptly to Holdings and the Administrative Agent updated or other appropriate
documentation (including any new documentation reasonably requested by Holdings or the Administrative Agent) or promptly notify Holdings and the Administrative Agent in writing of its legal ineligibility to do so. Each Lender hereby
authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to this
Section 2.17.
Without limiting the foregoing:
(1) Each Lender shall, to the extent it is legally entitled to
do so, deliver to Holdings and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the request of Holdings or the Administrative Agent) two properly completed and
duly signed copies of IRS Form W-9 or W-8, as may be applicable, establishing that such Lender is exempt from U.S. federal backup withholding.
(2) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by
FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Holdings and the Administrative
Agent at the time or times prescribed by law and at such time or times reasonably requested by Holdings 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 Holdings or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such
Lender has or has not complied with such Lender’s obligations under FATCA and, if necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (2), “FATCA” shall include any
amendments made to FATCA after the date hereof.
Notwithstanding any other provisions of this paragraph (f), a Lender shall not be required to deliver any form or other documentation that such Lender is not legally eligible to deliver.
(g) If the Administrative Agent or a Lender determines in its good faith discretion that it has received a
refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this
Section 2.17, it shall pay over such refund to the
Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses
(including Taxes) of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees promptly to repay the amount paid over to the Borrower pursuant to this
Section 2.17(g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. The Administrative Agent or such Lender, as the case may be, shall, at Holdings’
request, provide Holdings with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant taxing authority (provided that the Administrative Agent or such Lender may delete any
information therein that the Administrative Agent or such Lender deems confidential). Notwithstanding anything to the contrary, (i) in no event will the Administrative Agent or any Lender be required to pay any amount pursuant to this
paragraph (g) the payment of which would place the Administrative Agent or Lender, as applicable, in a less favorable net after-Tax position than the Administrative Agent or Lender would have been in if the Tax subject to indemnification and
giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid and (ii) this
Section 2.17(g) shall not be construed
to require the Administrative Agent or any Lender to make available its Tax returns (or any other information relating to Taxes which it deems confidential) to any Loan Party or any other Person.
(h) Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent or any
assignment of rights by, or the replacement of, a Lender, or the consummation of the transactions contemplated hereby, the repayment, satisfaction or discharge of all obligations under any Loan Document, the expiration or termination of the
Commitments or the termination of this Agreement or any provision hereof.
(i) For purposes of this Section 2.17 and the indemnity set forth in Article VIII, “applicable Requirements of Law” shall
include 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 under any Loan Document (whether of principal, interest, fees, or of
amounts payable under Section 2.15, Section 2.16 or Section 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 3:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff 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 (for the avoidance of doubt any amounts received after 3:00 p.m. on such day shall not constitute a Default or Event of Default, so
long as such funds are actually received on the date when due). All such payments shall be made to such account as may be specified by the Administrative Agent, except that payments pursuant to Section 2.15, Section 2.16, Section
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 payments
received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment (other than payments on the Term Rate Loans) under any 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. If any payment on a Term Rate Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any payment of
principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate for the period of such extension. All payments or prepayments of any Loan (or of interest thereon) shall be made in the currency
in which such Loan is denominated, and all other payments under each 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,
interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal 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 Loans of a given Class resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans of such Class and accrued
interest thereon than the proportion received by any other Lender with outstanding Loans of the same Class, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of such Class of
other Lenders of such Class at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders of such Class ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Loans of such Class;
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 (A) any payment made by the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from existence of a Defaulting Lender), (B) any payment obtained by a Lender as consideration for any permitted assignment of or sale of a participation in any of its Loans to any
assignee or participant, including any payment made or deemed made in connection with
Section 2.21,
2.22 or
9.02 or (C) any disproportionate payment obtained by a Lender of any Class as a result of the extension by
Lenders of the maturity date or expiration date of some but not all Loans or Commitments of that Class or any increase in the Applicable Rate in respect of Loans of Lenders that have consented to any such extension. 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.
(d) Unless the Administrative Agent shall have received notice from Holdings prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders 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 the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender 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, the greater of the
Federal Funds Effective 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 2.06(a), Section 2.06(b),
Section 2.18(d) or Section 9.03(c), then the Administrative Agent may, in its discretion and in the order determined by the Administrative Agent (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 under such Section until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a
segregated account as cash collateral for, and to be applied to, any future funding obligations of such Lender under any such Section.
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 additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17 or any event gives rise to the operation of Section 2.23, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder 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 reasonable judgment
of such Lender, such designation or assignment and delegation (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or Section 2.17 or mitigate the applicability of Section 2.23, as the case may
be, and (ii) would not subject such Lender to any unreimbursed cost or expense reasonably deemed by such Lender to be material and would not be inconsistent with the internal policies of, or otherwise be disadvantageous in any material
economic, legal or regulatory respect to, such Lender.
(b) If (i) any Lender requests compensation under Section 2.15 or gives notice under Section 2.23, (ii) the Borrower
is required to pay any additional amount to any Lender or to any Governmental Authority for the account of any Lender pursuant to Section 2.17 or (iii) any Lender becomes a Defaulting Lender, then the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate (and such Lender shall be obligated 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 and the other Loan Documents 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, which consents, in each case, 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, accrued but unpaid interest thereon, accrued but unpaid fees and all other amounts payable to it hereunder from the assignee or the Borrower, (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)(ii) and (D) in the case of any such assignment resulting from a claim for compensation under Section 2.15, payments required to be
made pursuant to Section 2.17 or a notice given under Section 2.23, such assignment will result in a material reduction in such compensation or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver 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 cease 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 Incremental Loans and Commitments.
(a) Incremental Commitments. The Borrower may at any time or from time to time after the
Closing Date, by written notice to the Administrative Agent (an “Incremental Request”), request (i) one or more new commitments which shall be (A) of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or
(B) a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) under this Agreement and/or (ii) on or more increase in the amount of the Revolving Commitments (a “Revolving
Commitment Increase”) or the establishment of one or more revolving commitments and any increase thereunder (each an “Incremental Revolving Facility”; and, collectively with any such Revolving Commitment Increase, the “Incremental
Revolving Commitment” and, collectively with any Incremental Term Commitments, the “Incremental Commitments”), in each case, to be incurred by the Borrower, whereupon the Administrative Agent shall promptly deliver a copy
of such Incremental Request to each of the Lenders.
(b) Incremental Loans. Any Incremental Term Loans or Incremental Revolving Commitments, in
each case, other than Loan Increases, effected through the establishment of one or more new Term Loans or new Revolving Facility made on an Incremental Facility Closing Date shall be designated a separate Class of Incremental Term Loans
or Incremental Revolving Commitments, as applicable, for all purposes of this Agreement. On any Incremental Facility Closing Date on which any Incremental Term Commitments of any Class are effected (including through any Term Loan
Increase), subject to the satisfaction (or waiver) of the terms and conditions in this Section 2.20, (i) each Incremental Term Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an
amount equal to its Incremental Term Commitment of such Class and (ii) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Commitment of such Class and the Incremental Term
Loans of such Class made pursuant thereto. On any Incremental Facility Closing Date on which any Incremental Revolving Commitment of any Class are effected through the establishment of one or more new revolving credit commitments
(including through any Revolving Commitment Increase), subject to the satisfaction (or waiver) of the terms and conditions in this Section 2.20, (i) each Incremental Revolving Credit Lender shall make its Commitment available to
the Borrower (the loans made pursuant to Incremental Revolving Commitments, “Incremental Revolving Loans” and collectively with any Incremental Term Loan, the “Incremental Loans”) in an amount equal to its Incremental
Revolving Loan Commitment, and (ii) each Incremental Revolving Credit Lender shall become a Lender hereunder with respect to its Incremental Revolving Commitment and the Incremental Revolving Loans made pursuant thereto. Notwithstanding
the foregoing, Incremental Term Loans may have identical terms to any of the Term Loans and be treated as the same Class as any of such Term Loans.
(c) Incremental Request. Each Incremental Request from the Borrower pursuant to this Section
2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Loan. Incremental Commitments and Incremental Loans may be provided by any existing Lender (but no existing Lender will have an obligation to
make any Incremental Commitment or Incremental Loans) or by any Additional Lender (each such existing Lender or Additional Lender providing an Incremental Commitment or Incremental Loans, an “Incremental Revolving Credit Lender”
or “Incremental Term Lender,” as applicable, and, collectively, the “Incremental Lenders”); provided that (i) the Administrative Agent shall have consented (not to be unreasonably withheld, conditioned or delayed) to such
Additional Lender’s making of such Incremental Commitments and Incremental Loans to the extent such consent, if any, would be required under Section 9.04(b) for an assignment of Loans or Commitments to such Additional Lender.
(d) Effectiveness of Incremental Facility Amendment. The effectiveness of any Incremental
Facility Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction (or waiver in accordance with Section 9.02 hereof) on the date of such Incremental Facility Amendment (the “Incremental
Facility Closing Date”) of each of the following conditions:
(i) subject to Section 1.08, no Event of Default shall exist after giving effect to such Incremental
Commitments;
(ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000
and shall be in an increment of $1,000,000 (provided that such amount may be less than $10,000,000 (and need not be in an increment of $1,000,000) if such amount represents all remaining
availability under the limit set forth in clause (iii) below) and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000
(provided that such amount may be less than $10,000,000 (and need not be in an increment of $1,000,000) if such amount represents all remaining availability under the limit set forth in clause
(iii) below); and
(iii) at the time of and after giving effect to the effectiveness of any proposed Incremental Term Loans or
Incremental Revolving Commitments, the aggregate amount of the Incremental Term Loans and Incremental Revolving Commitments shall not exceed:
(A) an amount equal to the Starter Basket; plus
(B) (i) the amount of all prior voluntary prepayments of Term Loans or Revolving Loans (in each case, with respect to
any revolving loans, to the extent accompanied by a permanent reduction in the related revolving commitments), in each case unless made with the proceeds of Credit Agreement Refinancing Indebtedness or other long-term Indebtedness
(other than revolving Indebtedness), (ii) the amount paid in respect of any reduction in the outstanding principal amount of Term Loans resulting from assignments to (and purchases by) any Loan Party and the concurrent cancellation of
such Term Loans, amounts paid by any Loan Party in respect of the principal amount of any Term Loans utilizing the mandatory assignment provisions in respect of Defaulting Lenders, Non-Accepting Lenders and/or Non-Consenting Lenders
pursuant to Sections 2.19(b), 2.24(c) and 9.02(c), respectively (to the extent that the applicable Loans and Commitments subject to such mandatory assignments are permanently repaid and cancelled), and the amount
of any voluntary permanent commitment reductions of undrawn and unutilized Revolving Commitments, (iii) the amount of all prior voluntary prepayments (with respect to any revolving loans, to the extent accompanied by a permanent
reduction in the related revolving commitments), redemptions, debt buy backs (to the extent permanently cancelled in connection therewith), payments utilizing the yank-a-bank provisions (to the extent that the applicable loans and
commitments subject to such yank are permanently repaid and cancelled) or the termination of revolving commitments by Holdings or a Restricted Subsidiary of: (x) the Senior Secured 2025 Notes, (y) Incremental Equivalent Debt and (z)
Credit Agreement Refinancing Indebtedness in the form of term loans or revolving loans that is secured on a pari passu basis with the 2024-B Term Loans, the 2024 Other Term Loans or 2024 Other
Revolving Loans, as applicable and (iv) the amount of all prior voluntary prepayments (with respect to any revolving loans, to the extent accompanied by a permanent reduction in the related revolving commitments), redemptions, debt buy
backs (to the extent permanently cancelled in connection therewith), payments utilizing the yank-a-bank provisions (to the extent that the applicable loans and commitments subject to such yank are permanently repaid and cancelled) or
the termination of revolving commitments by Holdings or a Restricted Subsidiary of any Indebtedness that is secured on a junior lien basis to the Secured Obligations or is unsecured, to the extent such Indebtedness was originally
incurred in reliance on the Starter Basket and (v) an amount equal to all fees, underwriting discounts, premiums (including any original issue discount, payment of call protection or prepayment premiums) and other costs and expenses
incurred in connection with the incurrence of amounts set forth in clause (A) above and this clause (B) (provided that the relevant prepayment, redemption, repurchase or commitment reduction
under this clause (C) shall not have been funded with proceeds of long-term Indebtedness (other than revolving Indebtedness)) (this Section 2.20(d)(iii)(B), the “Incremental Prepayment Amount”), plus
(C) (x) in the case of any Incremental Loans or Incremental Commitments that effectively extend the Maturity Date of,
or refinance, any Facility, an amount equal to the portion of the Facility to be replaced with (or refinanced by) such Incremental Loans or Incremental Commitments and (y) in the case of any Incremental Loans or Incremental Commitments
that effectively replace any Commitment or Loan of Defaulting Lenders, Non-Accepting Lenders and/or Non-Consenting Lenders pursuant to Sections 2.19(b), 2.24(c) and 9.02(d), an amount equal to the portion of the
relevant terminated or cancelled Commitment or Loan; plus
(D) An unlimited amount, so long as in the case of this clause (D) only,
(1) in the case of Incremental Loans or Incremental Commitments that are secured by a Lien on all or a portion of the
Collateral on a basis that is equal in priority to the Liens on the Collateral securing the 2024-B Term Loans, the 2024 Other Term Loans and 2024 Other Revolving Loans (but without regard to remedies), so long as the First Lien Net
Leverage Ratio (determined on a Pro Forma Basis) does not exceed (I) 3.50:1.00 as of the most recently ended Test Period or, if applicable, determined in accordance with Section 1.08 or (II) at the election of the Borrower to
the extent such Incremental Facility is incurred in connection with the financing of a Permitted Acquisition or similar Investment permitted under the Loan Documents, the First Lien Net Leverage Ratio in effect for the most recently
ended Test Period, or where applicable, in accordance with Section 1.08 (in each case under clauses (I) and (II), in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments
are fully drawn and calculating the First Lien Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred);
(2) in the case of Incremental Loans or Incremental Revolving Commitments that are secured by Liens on all or a
portion of the Collateral on a basis that is junior in priority to the Liens on the Collateral securing the 2024-B Term Loans, the 2024 Other Term Loans and the 2024 Other Revolving Loans under this Agreement, the Secured Net Leverage
Ratio (determined on a Pro Forma Basis) does not exceed (I) 4.50:1.00 as of the most recently ended Test Period or, if applicable, determined in accordance with Section 1.08 or (II) at the election of the Borrower to the extent
such Incremental Facility is incurred in connection with the financing of a Permitted Acquisition or similar Investment permitted under the Loan Documents, the Secured Net Leverage Ratio in effect for the most recently ended Test Period
or where applicable, in accordance with Section 1.08 (in each case under clauses (I) and (II), in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn
and calculating the Secured Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred);
(3) in the case of Incremental Loans or Incremental Revolving Commitments that are unsecured, either (a) the Total
Net Leverage Ratio (determined on a Pro Forma Basis) does not exceed (I) 5.00:1.00 as of the most recently ended Test Period or, if applicable, determined in accordance with Section 1.08 or (II) at the election of the Borrower
to the extent such Incremental Facility is incurred in connection with the financing of a Permitted Acquisition or similar Investment permitted under the Loan Documents, the Total Net Leverage Ratio in effect for the most recently ended
Test Period or where applicable, in accordance with Section 1.08 or (b) the Cash Interest Coverage Ratio (determined on a Pro Forma Basis) is not less than (I) 2.00 to 1.00 (or if in connection with an acquisition or other
Investment permitted under this Agreement 1.75 to 1.00) as of the most recently ended Test Period, or, if applicable, determined in accordance with Section 1.08 or (II) at the election of the Borrower to the extent such
Incremental Facility is incurred in connection with the financing of a Permitted Acquisition or similar Investment permitted under the Loan Documents, the Cash Interest Coverage Ratio in effect for the most recently ended Test Period or
where applicable, in accordance with Section 1.08 (in each case under clauses (a) and (b), in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and
calculating the Total Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred) (this Section 2.20(d)(iii), the “Incremental Cap”);
provided, that (I) Incremental Term Loans and Incremental Revolving Loan
Commitments (and any Incremental Equivalent Debt incurred in lieu thereof pursuant to Section 6.01(a)(xxiii)) shall be deemed to have been incurred under clause (D) (to the extent compliant therewith) prior to
utilization of any available capacity under clauses (A), (B) or (C) (II) Incremental Term Loans and Incremental Revolving Loan Commitments (and any Incremental Equivalent Debt incurred in lieu thereof pursuant
to Section 6.01(a)(xxiii) may be incurred under both clauses (A), (B) and/or (C) above, on the one hand, and clause (D) above, on the other hand, and proceeds from any such incurrences may be utilized
in a single transaction by first calculating the incurrence under clause (D) above and then calculating the incurrence under clauses (A), (B) and/or (C) above and (III) any amounts incurred under clause
(A) shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (D) if Holdings satisfies the ratio for clause (D) at such time on a Pro Forma Basis, and if the ratio under clause
(D) would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter of Holdings after the initial incurrence of such amounts, such reclassification shall be deemed to have automatically occurred whether or
not elected by the Holdings.
(e) Required Terms. The terms, provisions and documentation of the Incremental Term Loans
and Incremental Term Commitments or the Incremental Revolving Loans and Incremental Revolving Loan Commitments, as the case may be, of any Class and any Loan Increase shall be as agreed between the Borrower and the applicable
Incremental Lenders, and except as otherwise set forth herein, to the extent not identical to the 2024-B Term Facility, the Other Term Facility or 2024 Other Revolving Facility, as applicable, existing on the Incremental Facility
Closing Date, shall either, at the option of the Borrower, (i) reflect market terms and conditions (taken as a whole) at the time of incurrence of such Indebtedness (as determined by the Borrower in good faith) or (ii) be not materially
more favorable (when taken as a whole), as reasonably determined by the Borrower, to the Incremental Lenders providing such Incremental Facility than the terms and conditions of the 2024-B Term Facility, the Other Term Facility or 2024
Other Revolving Facility, as applicable, except, in each case under this clause (ii), with respect to (x) covenants and other terms only applicable to periods after the Latest Maturity Date for any Term Loans hereunder or the Scheduled
2024-A Maturity Date, as applicable, or (y) covenants and other terms reasonably satisfactory to the Administrative Agent; provided that to the extent any covenant or term is (I) added for the benefit of the Incremental Lenders
holding Incremental Term Commitments, such covenant or term will be deemed satisfactory to the Administrative Agent to the extent that such term or covenant is also added, or the features of such term or provision are provided, for the
benefit of the 2024-B Term Facility or the Other Term Facility or (II) added for the benefit of Incremental Lenders of an Incremental Revolving Facility, such covenant or term will be deemed satisfactory to the Administrative Agent to
the extent that such term or provision is also added, or the features of such term or provision are provided, for the benefit of the 2024 Other Revolving Facility; provided that in the case of a Term Loan Increase or a Revolving Commitment Increase, the terms, provisions and documentation of such Term Loan Increase or a Revolving Commitment Increase shall be identical (other than
with respect to upfront fees, OID or similar fees, it being understood that, if required to consummate such Loan Increase transaction, the interest rate margins and rate floors may be increased, any call protection provision may be made
more favorable to the applicable existing Lenders and additional upfront or similar fees may be payable to the lenders providing the Loan Increase) to the applicable Term Loans or Revolving Commitments being increased, in each case, as
existing on the Incremental Facility Closing Date (provided that, if such Incremental Term Loans are to be “fungible” with any Class of Term Loans, notwithstanding any other conditions specified
in this Section 2.20(e), the amortization schedule for such “fungible” Incremental Term Loan may provide for amortization in such other percentage(s) to be agreed by Borrower and the Administrative Agent to ensure that such
Incremental Term Loans will be “fungible” with the 2024-B Term Loans or the 2024 Other Term Loans, as applicable). In any event:
(i) the Incremental Term Loans and Incremental Term Commitments:
(A) shall not be guaranteed by any Person other than any Loan Party unless such guarantee is provided for the benefit
of the Lenders,
(B) (i) shall rank equal in right of payment with the 2024-B Term Loans and the 2024 Other Term Loans and (ii) shall
either (x) rank equal (but without regard to the control of remedies) or junior in priority of right of security with the 2024-B Term Loans and the 2024 Other Term Loans (subject to the applicable Intercreditor Agreement) or (y) be
unsecured, in each case, as applicable pursuant to Section 2.20(d)(iii)(D) above,
(C) shall not mature earlier than the Latest Maturity Date for any Term Loans hereunder or the Scheduled 2024-A
Maturity Date (other than in a principal amount not to exceed the Maturity Limitation Excluded Amount); provided that the requirements set forth in this clause (B) shall not apply to any Incremental Term Loans consisting of a
customary bridge facility, so long as the long-term Indebtedness into which such customary bridge facility is to be converted satisfies the requirements set forth in this clause (C);
(D) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of
the 2024-B Term Loans or the 2024 Other Term Loans; provided that the requirements set forth in this clause (D) shall not apply to (x) any Maturity Limitation Excluded Amount and (y) any Incremental Term Loans consisting of a
customary bridge facility, so long as the long-term Indebtedness into which such customary bridge facility is to be converted satisfies the requirements set forth in this clause (D);
(E) subject to clause (D) above and Section 2.20(e)(iii), shall have amortization and an Applicable
Rate determined by the Borrower and the applicable Incremental Term Lenders; and
(F) may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any
mandatory prepayments of the 2024-B Term Loans and the 2024 Other Term Loans hereunder, as specified in the applicable Incremental Facility Amendment; provided that voluntary prepayments may be made on a non pro rata basis.
(ii) Incremental Revolving Loan and Incremental Revolving Commitments.
(A) shall not be guaranteed by any Person other than any Loan Party unless such guarantee is provided for the benefit
of the Lenders,
(B) (i) shall rank equal in right of payment with the 2024 Other Revolving Loans and (ii) shall either (x) rank equal
(but without regard to the control of remedies) or junior in priority of right of security with the 2024 Other Revolving Loans (subject to the applicable Intercreditor Agreement) or (y) be unsecured, in each case, as applicable pursuant
to Section 2.20(d)(iii)(D) above,
(C) shall not mature earlier than the Scheduled 2024-A Maturity Date (other than in a principal amount not to exceed
the Maturity Limitation Excluded Amount) and shall not be subject to amortization;
(D) shall provide that the borrowing and repayment (except for (1) payments of interest and fees at different rates on
Incremental Revolving Commitments (and related outstanding Incremental Revolving Loans), (2) repayments required upon the Maturity Date of any Revolving Commitments, (3) repayments made in connection with any refinancing of Revolving
Commitments and (4) repayment made in connection with a permanent repayment and termination of Commitments) of Revolving Loans with respect to Incremental Revolving Commitments after the associated Incremental Facility Closing Date
shall be made on a pro rata basis with all other outstanding Revolving Commitments existing on such Incremental Facility Closing Date;
(E) subject to the provisions of Section 2.04 in connection with Letters of Credit which mature or expire
after a Maturity Date at any time Incremental Revolving Commitments with a later Maturity Date are outstanding, shall provide that all Letters of Credit shall be participated on a pro rata basis by each Lender with a Revolving
Commitment in accordance with its percentage of the Revolving Commitments existing on the Incremental Facility Closing Date (and except as provided in Section 2.04, without giving effect to changes thereto on an earlier Maturity
Date with respect to Letters of Credit theretofore incurred or issued);
(F) shall provide that the permanent repayment of Revolving Loans with respect to, and termination of, Incremental
Revolving Commitments after the associated Incremental Facility Closing Date may be made on a pro rata basis or less than a pro rata basis or greater than a pro rata basis, in each case, with all other Revolving Commitments existing on
such Incremental Facility Closing Date;
(G) shall provide that any Incremental Revolving Commitments may constitute a separate Class or Classes, as the case
may be, of Commitments from the Classes constituting the applicable Revolving Commitments prior to the Incremental Facility Closing Date; provided at no time shall there be Revolving Commitments hereunder (including Incremental
Revolving Commitments and any original Revolving Commitments) which have more than four (4) different Maturity Dates unless otherwise agreed to by the Administrative Agent; and
(H) shall have an Applicable Rate determined by the Borrower and the applicable Incremental Revolving Lenders.
(iii) the interest rate and amortization schedule applicable to any Incremental Term Loans will be determined by the
Borrower and the lenders providing such Incremental Term Loans; provided that in the event that the Effective Yield with respect to any Incremental Term Loans that satisfy each the MFN Conditions is greater than the Effective
Yield for the Refinancing Term Loans by more than 0.75%, the Applicable Rate for the Refinancing Term Loans shall be increased to the extent necessary so that the Effective Yield for the Refinancing Term Loans is equal to the
Effective Yield for such Incremental Term Loans minus 0.75% (this clause (iii), the “MFN Adjustment”).
(f) Incremental Facility Amendment. Commitments in respect of Incremental Term Loans and
Incremental Revolving Commitments shall become Commitments, under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the
Borrower, each Incremental Lender providing such Commitments and, without delay, the Administrative Agent. The Incremental Facility Amendment may, without the consent of any other Loan Party, Agent or Lender, effect such amendments to
this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 and the Lenders expressly
authorize the Administrative Agent to enter into every such Incremental Facility Amendment, including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary to enable any
Incremental Loans that are intended to be treated as fungible with any Class of outstanding Term Loans to be treated as fungible with such Term Loans, which shall include without limitation (i) any amendments to Section 2.10
that do not reduce the ratable amortization received by each Lender thereunder and (ii) any amendments which extend or add “call protection” to any existing Class of Loans, including amendments to Section 2.11(a) or Section
2.12(d). The Borrower will use the proceeds of the Incremental Loans for working capital purposes or general corporate purposes, including without limitation, any acquisition, any Investment and any Restricted Payment to the
extent not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Loans, unless it so agrees.
(g) Each Lender or Additional Lender providing a portion of any Incremental Facility shall execute and deliver to the Administrative
Agent and the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Facility. On the effective date
of such Incremental Facility, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(h) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
SECTION 2.21 Refinancing Amendments.
(a) At any time after the Closing Date, the Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing
Indebtedness in respect of (a) all or any portion of the Term Loans then outstanding under this Agreement (which for purposes of this clause (a) will be deemed to include any then outstanding Other Term Loans or Incremental Term
Loans) or (b) all or any portion of the Revolving Loans (or unused Revolving Commitments) under this Agreement (which for purposes of this clause (b) will be deemed to include any then outstanding Other Revolving Loans and Other
Revolving Commitments), in the form of (x) Other Term Loans or Other Term Commitments or (y) Other Revolving Loans or Other Revolving Commitments, as the case may be, in each case pursuant to a Refinancing Amendment; provided
that such Credit Agreement Refinancing Indebtedness (i) may rank equal in priority in right of payment with the other Loans and Commitments hereunder, (ii) may be unsecured or rank pari passu (without regard to the control of remedies) or junior in right of security to the 2024-B Term Loans, the 2024 Other Term Loans or the 2024 Other Revolving Loans under this Agreement and, if
secured on a junior basis, shall be subject to a Market Intercreditor Agreement, (iii) will have such pricing (including interest, fees and premiums) and optional prepayment (or redemption) terms as may be agreed by the Borrower and the
Lenders thereof and (iv) the proceeds of such Credit Agreement Refinancing Indebtedness shall be applied, substantially concurrently with the incurrence thereof, to the prepayment of the Credit Agreement Refinanced Indebtedness. Each
Class of Credit Agreement Refinancing Indebtedness incurred under this Section 2.21 shall be in an aggregate principal amount that is (x) not less than $10,000,000 in the case of Other Term Loans or $10,000,000 in the case of
Other Revolving Loans and (y) an integral multiple of $1,000,000 in excess thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Each of the parties hereto hereby
agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Credit Agreement Refinancing
Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Other Term Loans, Other Revolving Loans, Other Revolving Commitments and/or Other Term Commitments). Any
Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the
Borrower, to effect the provisions of this Section 2.21.
(b) Notwithstanding anything to the contrary, this Section 2.21 shall supersede any provisions in Section 2.18 or Section
9.02 to the contrary.
SECTION 2.22 Defaulting Lenders.
(a) General. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender,
then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver
or consent with respect to this Agreement shall be restricted as set forth in Section 9.02.
(ii) Reallocation of Payments. Subject to the last sentence of Section 2.11(g), any payment of
principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise, and including any
amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 9.08), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the
payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the relevant L/C Issuers; third,
if so determined by the Administrative Agent or requested by the relevant L/C Issuer, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Letter of Credit; fourth,
as Holdings may request (so long as no Default or Event of Default is continuing), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined
by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to
fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against that Defaulting Lender as a result of
that Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of
competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and either, to that Defaulting Lender or as otherwise
directed by a court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Loans and such Lender is a Defaulting Lender under clause (a) of the definition thereof, such
payment shall be applied solely to pay the relevant Loans of the relevant non-Defaulting Lenders on a pro rata basis; provided that if (i) such payment is a payment of the principal amount of
any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (ii) such Loans or L/C Borrowings were made at a time when the conditions set forth in Section 4.02 were
satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to,
that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section
2.22(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or
held) to pay amounts owed by a Defaulting Lender shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to receive any commitment fee pursuant
to Section 2.12(b) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender)
and (y) shall be limited in its right to receive Letter of Credit Fees as provided in Section 2.04(i).
(iv) Reallocation of Pro Rata Share to Reduce Fronting Exposure. During any period in which there is a
Defaulting Lender, for purposes of computing the amount of the obligation of each Non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to Section 2.04, the “Applicable Percentage” of
each Non-Defaulting Lender’s Revolving Loans and L/C Obligations shall be computed without giving effect to the Commitment of that Defaulting Lender; provided that (i) each such reallocation shall be given effect only if, at the date
the applicable Lender becomes a Defaulting Lender, no Default has occurred and is continuing; and (ii) such reallocation does not cause the Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving
Commitments.
(b) Defaulting Lender Cure. If Holdings and the Administrative Agent agree in writing in their sole discretion that a
Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth
therein, such Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held on a
pro rata basis by the Lenders in accordance with their applicable percentages of the Commitments in respect thereof, whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided further that except to the extent otherwise expressly agreed by the
affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
SECTION 2.23 Illegality. If any Lender determines that any law or regulation has made it unlawful or not possible in practice, or that any Governmental
Authority has asserted that it is unlawful, for any Lender to make, maintain or fund any Loan whose interest is determined by reference to (x) EURIBOR or EURIBOR Screen Rate, to determine or charge interest rates based upon EURIBOR, or
(y) SOFR the Term SOFR Reference Rate, to determine or charge interest rates based upon the Term SOFR Reference Rate, Daily Simple SOFR, or to observe
or perform such Lender's obligations under any Loan Document, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, then, on notice thereof by such Lender to Holdings
through the Administrative Agent, (i) any obligation of such Lender to issue, make, maintain, fund or charge interest with respect to any such Loan or continue the applicable Term Rate Loans or to convert ABR Loans to the applicable
Term Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender’s making or maintaining ABR Loans the interest rate of which is determined by reference to the Term SOFR component of the Alternate Base
Rate, the interest rate on which ABR Loans or such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the Alternate Base Rate, in each case
until such Lender notifies the Administrative Agent and Holdings that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy
to the Administrative Agent), prepay or, if applicable, in the case of Loans denominated in Dollars, convert all applicable Term Rate Loans of such Lender to ABR Loans (the interest rate on which ABR Loans of such Lender shall, if
necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the Alternate Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such applicable Term Rate Loans, to such day, or immediately, if such Lender may not lawfully continue to maintain such applicable Term Rate Loans, and (y) if such notice asserts the illegality of such Lender
determining or charging interest rates based upon the Term SOFR Reference Rate, the Administrative Agent shall, during the period of such suspension, compute the Alternate Base Rate applicable
to such Lender without reference to the Term SOFR component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Term SOFR Reference Rate. Each Lender agrees to notify the Administrative Agent and Holdings in writing promptly upon becoming aware that it is no longer illegal for such Lender to determine or
charge interest rates based upon the Term SOFR Reference Rate or to observe or perform such Lender's obligations under any Loan Document. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted.
SECTION 2.24 Loan Modification Offers.
(a) At any time after the Closing Date, the Borrower may on one or more occasions, by written notice to the Administrative Agent, make
one or more offers (each, a “Loan Modification Offer”) to all the Lenders of one or more Classes (each Class subject to such a Loan Modification Offer, an “Affected Class”) to effect one or more Permitted Amendments
relating to such Affected Class pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to Holdings (including mechanics to permit cashless rollovers and exchanges by Lenders). Such notice
shall set forth (i) the terms and conditions of the requested Permitted Amendment and (ii) the date on which such Permitted Amendment is requested to become effective. Permitted Amendments shall become effective only with respect to
the Loans and Commitments of the Lenders of the Affected Class that accept the applicable Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, in the case of any Accepting Lender, only with respect to such
Lender’s Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been made.
(b) A Permitted Amendment shall be effected pursuant to a Loan Modification Agreement executed and delivered by Holdings, the Borrower
each applicable Accepting Lender and the Administrative Agent; provided that no Permitted Amendment shall become effective unless Holdings shall have delivered to the Administrative Agent such legal opinions, board resolutions,
secretary’s certificates, officer’s certificates and other documents as shall be reasonably requested by the Administrative Agent in connection therewith, in each case substantially in the form delivered on the Closing Date (with
appropriate modification thereto to reflect the nature of the Loan Modification Offer). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each Loan Modification
Agreement may, without the consent of any Lender other than the applicable Accepting Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative
Agent, to give effect to the provisions of this Section 2.24, including any amendments necessary to treat the applicable Loans and/or Commitments of the Accepting Lenders as a new “Class” of loans and/or commitments hereunder.
(c) If, in connection with any proposed Loan Modification Offer, any Lender declines to consent to such Loan Modification Offer on the
terms and by the deadline set forth in such Loan Modification Offer (each such Lender, a “Non-Accepting Lender”) then the Borrower may, on notice to the Administrative Agent and the Non-Accepting Lender, (i) replace such
Non-Accepting Lender by causing such Lender to (and such Lender shall be obligated to) assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04) all of its interests,
rights and obligations under this Agreement in respect of the Loans and Commitments of the Affected Class to one or more Eligible Assignees (which Eligible Assignee may be another Lender, if a Lender accepts such assignment) or (ii)
prepay such Non-Accepting Lender; provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender; provided further that (a) the applicable
assignee shall have agreed to provide Loans and/or Commitments on the terms set forth in the applicable Permitted Amendment, (b) such Non-Accepting Lender shall have received payment of an amount equal to the outstanding principal of
the Loans of the Affected Class assigned by it pursuant to this Section 2.24(c), accrued interest thereon, accrued fees and all other amounts payable to it hereunder from the Eligible Assignee (to the extent of such outstanding
principal and accrued interest and fees), (c) unless waived, the Borrower or such Eligible Assignee shall have paid to the Administrative Agent the processing and recordation fee specified in Section 9.04(b) and (d) such
Non-Accepting Lender shall be entitled to any prepayment premiums or penalties from the Borrower to the extent a premium or penalty would be due in respect of a prepayment of Term Loans pursuant to Section 2.11.
(d) Notwithstanding anything to the contrary, this Section 2.24 shall supersede any provisions in Section 2.18 or Section
9.02 to the contrary.
SECTION 2.25 Permitted Debt Exchanges.
(a) Notwithstanding anything to the contrary contained in this Agreement, pursuant to one or more offers (each, a “Permitted Debt
Exchange Offer”) made from time to time by the Borrower to all Lenders (other than, with respect to any Permitted Debt Exchange Offer that constitutes an offering of securities, any Lender that, if requested by Holdings, is unable
to certify that it is (i) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), (ii) an institutional “accredited investor” (as defined in Rule 501 under the Securities Act) or (iii) not a “U.S. person”
(as defined in Rule 902 under the Securities Act)) with outstanding Term Loans of a particular Class, the Borrower may from time to time consummate one or more exchanges of such Term Loans for Indebtedness (in the form of senior
secured, senior unsecured, senior subordinated or subordinated notes or loans) (such Indebtedness, “Permitted Debt Exchange Notes” and each such exchange, a “Permitted Debt Exchange”), so long as the following conditions
are satisfied:
(i) each such Permitted Debt Exchange Offer shall be made on a pro rata basis to the Lenders (other than, with
respect to any Permitted Debt Exchange Offer that constitutes an offering of securities, any Lender that, if requested by Holdings, is unable to certify that it is (i) a “qualified institutional buyer” (as defined in Rule 144A under the
Securities Act), (ii) an institutional “accredited investor” (as defined in Rule 501 under the Securities Act) or (iii) not a “U.S. person” (as defined in Rule 902 under the Securities Act)) of each applicable Class based on their
respective aggregate principal amounts of outstanding Term Loans under each such Class;
(ii) the aggregate principal amount (calculated on the face amount thereof) of such Permitted Debt Exchange Notes
shall not exceed the aggregate principal amount (calculated on the face amount thereof) of Term Loans so refinanced, except to the extent a different incurrence basket pursuant Section 6.01 is utilized and with respect to an
amount equal to any fees, expenses, commissions, underwriting discounts and premiums payable in connection with such Permitted Debt Exchange;
(iii) other than with respect to an amount not to exceed the Maturity Limitation Excluded Amount, the stated final
maturity of such Permitted Debt Exchange Notes is not earlier than either the Maturity Date for the Class or Classes of Term Loans being exchanged or the Scheduled 2024-A Maturity Date, and such stated final maturity is not subject to
any conditions that could result in such stated final maturity occurring on a date that precedes such latest maturity date (it being understood that acceleration or mandatory repayment, prepayment, redemption or repurchase of such
Permitted Debt Exchange Notes upon the occurrence of an event of default, a change in control, an event of loss or an asset disposition shall not be deemed to constitute a change in the stated final maturity thereof);
(iv) such Permitted Debt Exchange Notes are not 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, upon the occurrence of an event of default, a change in control, an event of loss or an asset
disposition) prior to either the Latest Maturity Date for the Class or Classes of Term Loans being exchanged or the Scheduled 2024-A Maturity Date; provided that, notwithstanding the foregoing, scheduled amortization payments (however
denominated, including scheduled offers to repurchase) of such Permitted Debt Exchange Notes shall be permitted so long as (other than with respect to an aggregate principal amount thereof not to exceed the Maturity Limitation Excluded
Amount) the Weighted Average Life to Maturity of such Indebtedness shall be not earlier than the remaining Weighted Average Life to Maturity of the Class or Classes of Term Loans being exchanged;
(v) no Subsidiary is an issuer, a borrower or a guarantor with respect to such Indebtedness unless such Subsidiary is
or substantially concurrently becomes a Loan Party;
(vi) if such Permitted Debt Exchange Notes are secured, such Permitted Debt Exchange Notes are secured on a pari
passu basis or junior priority basis to the Secured Obligations and (A) such Permitted Debt Exchange Notes are not secured by any assets not securing the Secured Obligations unless such assets substantially concurrently secure the
Secured Obligations and (B) the beneficiaries thereof (or an agent on their behalf) shall become party to the applicable Intercreditor Agreements;
(vii) the terms and conditions of such Permitted Debt Exchange Notes are not materially more restrictive (when taken
as a whole) to Holdings and its Restricted Subsidiaries as the terms and conditions set forth in this Agreement (excluding pricing and optional prepayment or redemption terms or covenants or other provisions applicable only to periods
after each of the Latest Maturity Date of the Class or Classes of Term Loans being exchanged and the Scheduled 2024-A Maturity Date);
(viii) all Term Loans exchanged under each applicable Class by the Borrower pursuant to any Permitted Debt Exchange
shall automatically be cancelled and retired by the Borrower on date of the settlement thereof (and, if requested by the Administrative Agent, any applicable exchanging Lender shall execute and deliver to the Administrative Agent an
Assignment and Assumption, or such other form as may be reasonably requested by the Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its interest in the Term Loans being exchanged pursuant to the
Permitted Debt Exchange to the Borrower for immediate cancellation), and accrued and unpaid interest on such Term Loans shall be paid to the exchanging Lenders on the date of consummation of such Permitted Debt Exchange, or, if agreed
to by the Borrower and the Administrative Agent, the next scheduled Interest Payment Date with respect to such Term Loans (with such interest accruing until the date of consummation of such Permitted Debt Exchange);
(ix) if the aggregate principal amount of all Term Loans (calculated on the face amount thereof) of a given Class
tendered by Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds the principal amount thereof of the applicable Class actually held by
it) shall exceed the maximum aggregate principal amount of Term Loans of such Class offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange Term Loans under the relevant
Class tendered by such Lenders ratably up to such maximum based on the respective principal amounts so tendered, or, if such Permitted Debt Exchange Offer shall have been made with respect to multiple Classes without specifying a
maximum aggregate principal amount offered to be exchanged for each Class, and the aggregate principal amount of all Term Loans (calculated on the face amount thereof) of all Classes tendered by Lenders in respect of the relevant
Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds the principal amount thereof actually held by it) shall exceed the maximum aggregate principal amount of Term Loans
of all relevant Classes offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange Term Loans across all Classes subject to such Permitted Debt Exchange Offer tendered by
such Lenders ratably up to such maximum amount based on the respective principal amounts so tendered;
(x) all documentation in respect of such Permitted Debt Exchange shall be consistent with the foregoing, and all
written communications generally directed to the Lenders in connection therewith shall be in form and substance consistent with the foregoing and made in consultation with Holdings and the Administrative Agent; and
(xi) any applicable Minimum Tender Condition or Maximum Tender Condition, as the case may be, shall be satisfied or
waived by Holdings.
Notwithstanding anything to the contrary herein, no Lender shall have any obligation to agree to have any of its Loans or Commitments exchanged pursuant to any Permitted Debt Exchange Offer.
(b) With respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this Section 2.25, such Permitted Debt
Exchange Offer shall be made for not less than $10,000,000 in aggregate principal amount of Term Loans; provided that subject to the foregoing Borrower may at its election specify (A) as a condition to consummating any such
Permitted Debt Exchange that a minimum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in Borrower’s discretion) of Term Loans of any or all applicable Classes be tendered (a “Minimum Tender
Condition”) and/or (B) as a condition to consummating any such Permitted Debt Exchange that no more than a maximum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in Holdings’ discretion) of
Term Loans of any or all applicable Classes will be accepted for exchange (a “Maximum Tender Condition”). The Administrative Agent and the Lenders hereby acknowledge and agree that the provisions of Section 2.11 (other
than Section 2.11(a)(i)) and Section 2.20 shall not apply to any Permitted Debt Exchange or the other transactions contemplated by this Section 2.25.
(c) In connection with each Permitted Debt Exchange, Holdings shall provide the Administrative Agent at least five (5) Business Days’
(or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and Borrower and the Administrative Agent, acting reasonably, shall mutually agree to such procedures as may be necessary or advisable
to accomplish the purposes of this Section 2.25; provided that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant Lenders are required to indicate their election to
participate in such Permitted Debt Exchange shall be not less than five (5) Business Days following the date on which the Permitted Debt Exchange Offer is made. The Borrower shall provide the final results of such Permitted Debt
Exchange to the Administrative Agent no later than three (3) Business Days prior to the proposed date of effectiveness for such Permitted Debt Exchange (or such shorter period agreed to by the Administrative Agent in its sole
discretion) and the Administrative Agent shall be entitled to conclusively rely on such results.
(d) The Borrower shall be responsible for compliance with, and hereby agrees to comply with, all applicable securities and other laws
in connection with each Permitted Debt Exchange, it being understood and agreed that (i) neither the Administrative Agent nor any Lender assumes any responsibility in connection with the Borrower’s compliance with such laws in
connection with any Permitted Debt Exchange and (ii) each Lender shall be solely responsible for its compliance with any applicable “insider trading” laws and regulations to which such Lender may be subject under the Exchange Act.
Article III
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants to the Lenders that:
SECTION 3.01 Organization; Powers. Each of Holdings and each Restricted Subsidiary is (a) duly organized or incorporated, validly existing and (to the
extent such concept exists in the relevant jurisdictions) in good standing under the laws of the jurisdiction of its organization or incorporation, (b) has the corporate or other organizational power and authority to carry on its
business as now conducted and to execute, deliver and perform its obligations under each Loan Document to which it is a party and (c) is qualified to do business in, and is in good standing in, every jurisdiction where such
qualification is required, except in the case of clause (a) (other than with respect to the Borrower), clause (b) (other than with respect to Holdings and the Borrower) and clause (c), where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.02 Authorization; Enforceability. This Agreement has been duly authorized, executed and delivered by each of the Loan Parties 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 such Loan Parties, as the case may be, enforceable against
it in accordance with its terms, subject to (i) Debtor Relief Laws and general principles of equity regardless of whether considered in a proceeding in equity or at law and (ii) the effect of foreign laws, rules and regulations as they
relate to pledges of Equity Interests in or Indebtedness owed by Foreign Subsidiaries.
SECTION 3.03 Governmental Approvals; No Conflicts. The execution, delivery and performance of the obligations under the Loan Documents (a) do not require
any material 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 for any Perfection Requirements,
(b) will not violate (i) the Organizational Documents of Holdings or any other Loan Party, or (ii) any Requirements of Law applicable to Holdings or any Restricted Subsidiary, (c) will not violate or result in a default under any
indenture or other agreement or instrument that constitutes Material Indebtedness 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, any Restricted Subsidiary, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation thereunder, and (d) will not result in the
creation or imposition of any Lien on any asset of Holdings or any Restricted Subsidiary, except Liens created under the Loan Documents, except (in the case of each of clauses (a), (b)(ii) and (c)) to the extent
that the failure to obtain or make such consent, approval, registration, filing or action, or such violation, default or right as the case may be, individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
SECTION 3.04 Financial Condition; No Material Adverse Effect.
(a) The Audited Financial Statements and Unaudited Financials (i) were prepared in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly indicated therein, including the notes thereto, and (ii) fairly present in all material respects the consolidated financial position of Holdings and its consolidated subsidiaries
as of the respective dates thereof and the consolidated results of their operations for the respective periods then ended in accordance with GAAP consistently applied during the periods referred to therein, except as otherwise expressly
indicated therein, including the notes thereto.
(b) Each Pro Forma Financial Statement (as defined in Section 4.01(m)) has been prepared in good faith, based on assumptions
believed by Holdings and the Borrower to be reasonable as of the date of delivery thereof, and present fairly in all material respects the estimated financial position of Holdings and the Restricted Subsidiaries as if the Transactions
had occurred as of the relevant date (in the case of any pro forma consolidated balance sheet) or at the beginning of such period (in the case of any pro forma statement of income or operations).
(c) Since December 31, 2020, there has been no Material Adverse Effect.
SECTION 3.05 Properties. (a) Holdings and each Restricted Subsidiary is the sole legal and beneficial owner of and has good title to, or valid leasehold
interests in, all its real and personal property material to its business (including the Mortgaged Properties, if any), (i) free and clear of all Liens except for Liens permitted by Section 6.02 and (ii) free of title defects
except for defects in title 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 as could
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(b) As of the Closing Date, Schedule 3.05 contains a true and complete list of the Material Real Property.
SECTION 3.06 Litigation and Environmental Matters.
(a) Except as set forth on Schedule 3.06, (i) there are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of Holdings or the Borrower, threatened against or affecting the Borrower or any Restricted Subsidiary that could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect and (ii) none of the Borrower or any Subsidiary has treated, stored, transported, released or disposed of Hazardous Materials at or from any currently or formerly owned, leased or operated real
property or any other facility relating to its business (including, to the knowledge of the Borrower, any third-party recycling, treatment, storage or disposal facilities) in a manner that could reasonably be expected to have a Material
Adverse Effect.
(b) Except with respect to any matters that, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, none of 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, to the knowledge of the Borrower, become subject to any Environmental Liability, (iii) has received written notice of any claim with respect to any Environmental Liability or (iv) has, to the knowledge of Holdings or the Borrower,
any basis to reasonably expect that Holdings, the Borrower or any Restricted Subsidiary will become subject to any Environmental Liability.
SECTION 3.07 Compliance with Laws. Each of Holdings and each Restricted Subsidiary is in compliance with all Requirements of Law applicable to it or its
property except, where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.08 Investment Company Status. None of Holdings, the Borrower or any other Loan Party is an “investment company” as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended from time to time.
SECTION 3.09 Taxes. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, Holdings and each
Restricted Subsidiary (a) have timely filed or caused to be filed all Tax returns required to have been filed and (b) have paid or caused to be paid all Taxes required to have been paid (whether or not shown on a Tax return) including
in their capacity as tax withholding agents, except any Taxes (i) that are not overdue by more than 30 days or (ii) that are being contested in good faith by appropriate proceedings; provided that Holdings, the Borrower or such
Restricted Subsidiary, as the case may be, has set aside on its books adequate reserves therefor in accordance with GAAP. The Borrower is properly treated as a “disregarded entity” owned by a regarded entity that is not a United States
person for U.S. federal income tax purposes.
SECTION 3.10 ERISA; Foreign Pension Plans.
(a) Except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Plan is
in compliance with the applicable provisions of ERISA, the Code and other federal or state laws and each Foreign Pension Plan is in compliance with the applicable non-US law.
(b) Except as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, (i) no ERISA
Event has occurred or is reasonably expected to occur, (ii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Plan (other than premiums
due and not delinquent under Section 4007 of ERISA), (iii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan and (iv) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could reasonably
be expected to be subject to Section 4069 or 4212(c) of ERISA.
(c) The present value of the aggregate benefit liabilities under each Plan sponsored, maintained or contributed to by Holdings, its
Restricted Subsidiaries or any of their ERISA Affiliates (determined as of the end of the most recent plan year on the basis of the actuarial assumptions specified for funding purposes in the most recent actuarial valuation for such
Plan), did not exceed the aggregate current value of the assets of such Plan by an amount, which, if all of such Plans were terminated, would result in a Material Adverse Effect.
(d) As of the Closing Date, Holdings and the Borrower are not and will not be using “plan assets” (within the meaning of 29 CFR §
2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans or the Commitments.
(e) Neither Holdings nor any of its Subsidiaries or Affiliates is or has at any time been (i) an employer (for the purposes of
sections 38 to 51 of the United Kingdom's Pensions Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the United Kingdom's Pensions Schemes Act 1993) or (ii) "connected" with or an
"associate" (as those terms are used in sections 38 and 43 of the United Kingdom's Pensions Act 2004) of such an employer.
SECTION 3.11 Disclosure. As of the Closing Date, no report, financial statement, certificate or other written information furnished by or on behalf of any
Loan Party (other than projected financial information, pro forma financial information and information of a general economic or industry nature) to any Lender in connection with the transactions contemplated hereby and the negotiation
of this Agreement or delivered hereunder or any other Loan Document (as modified or supplemented by other information so furnished), when taken as a whole, contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein (when taken as a whole), in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to projected and pro forma financial
information, Holdings and the Borrower each represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation and delivery; it being understood that actual
results may vary from such forecasts and that such variances may be material.
SECTION 3.12 Subsidiaries. As of the Closing Date, Schedule 3.12 sets forth the name of, and the ownership interest of each Subsidiary Guarantor.
SECTION 3.13 Intellectual Property; Licenses, Etc. Except as could not reasonably be expected to have a Material Adverse Effect, each of the Borrower and
each Restricted Subsidiary owns, licenses or possesses the right to use all of the rights to Intellectual Property that are reasonably necessary for the operation of its business as currently conducted, and, to the knowledge of the
Borrower, without conflict with the rights of any Person. None of Holdings, the Borrower or any Restricted Subsidiary, in the operation of their businesses as currently conducted, infringes upon any Intellectual Property rights held by
any Person except for such infringements, individually or in the aggregate, which could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the Intellectual Property owned by Holdings
or any Restricted Subsidiary is pending or, to the knowledge of Holdings or the Borrower, threatened in writing against Holdings or the Borrower or any Restricted Subsidiary, which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
SECTION 3.14 Solvency. On the Closing Date, and after giving effect to the Transactions, Holdings and the Restricted Subsidiaries, on a consolidated
basis, are Solvent.
SECTION 3.15 Federal Reserve Regulations. No part of the proceeds of the Loans will be used, directly or indirectly, to purchase or carry any margin stock
or to refinance any Indebtedness originally incurred for such purpose, or for any other purpose that entails a violation (including on the part of any Lender) of the provisions of Regulations U or X of the Board of Governors.
SECTION 3.16 Security Interest in Collateral. Subject to the provisions of this Agreement (including, without limitation, Section 5.14) and the
other relevant Loan Documents, the Collateral Agreements create legal, valid and enforceable Liens on all of the Collateral as security for the Secured Obligations of the Loan Parties, in favor of the Collateral Agent, for the benefit
of itself and the other Secured Parties.
SECTION 3.17 PATRIOT Act, Sanctions and Anti-Corruption.
(a) Holdings and the Restricted Subsidiaries will not directly or, to the knowledge of Holdings and the Borrower, indirectly, use the
proceeds of the Loans or Letters of Credit, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person, for the purpose of funding, financing, or facilitating any activities or
business or transaction (i) with any Sanctioned Person, or in any Sanctioned Country, or (ii) in any manner that could reasonably be expected to result in a violation by any Person (including any Person participating in the
transaction, whether as underwriter, advisor, investor, lender or otherwise) of Sanctions.
(b) Holdings and the Restricted Subsidiaries will not use the proceeds of the Loans or Letters or Credit directly, or, to the knowledge
of Holdings and the Borrower, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order
to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law.
(c) Each of Holdings and the Restricted Subsidiaries is in compliance in all material respects with applicable Sanctions, Title III of
the USA Patriot Act, and Anti-Corruption Laws.
(d) Holdings, the Borrower and the Restricted Subsidiaries have, to the knowledge of Holdings and the Borrower, been in compliance in
all material respect with Sanctions, Title III of the USA Patriot Act, or Anti-Corruption Laws in the past three years prior to the Closing Date.
(e) (i) None of the Loan Parties is a Sanctioned Person or otherwise the target of Sanctions and (ii) none of the Restricted
Subsidiaries that are not Loan Parties, or any director or officer of any Loan Party or Restricted Subsidiary, or to the knowledge of Holdings and the Borrower, any employee or agency of any Loan Party or Restricted Subsidiary, in each
case, is a Sanctioned Person.
SECTION 3.18 Centre of Main Interests and Establishments. For the purpose of the EU Insolvency Regulation:
(a) If the jurisdiction of organization or incorporation of Holdings or any of the Restricted Subsidiaries (other than any Dutch Loan
Party) is a member state of the European Union, its COMI is situated in its jurisdiction of organization or incorporation and it has no “establishment” (as that term is used in Article 2(10) of the EU Insolvency Regulation) in any other
jurisdiction; and
(b) The COMI of each Dutch Loan Party is situated in the jurisdiction of either its (corporate) seat or its business address and it has
no “establishment” (as that term is used in Article 2(10) of the EU Insolvency Regulation) in any other jurisdiction.
SECTION 3.19 Dutch Law Representations.
(a) No Dutch Loan Party is or has been a member a fiscal unit (fiscale eenheid) for Dutch
corporate income tax or value added tax purposes (other than such fiscal unit comprising solely Loan Parties.
(b) No Loan Party has issued a declaration of joint and several liability as referred to in Section 2:403 of the Dutch Civil Code.
SECTION 3.20 Australian Tax. Neither Holdings nor any of its Subsidiaries (i) is a member of an Australian Tax Consolidated Group unless a TSA and a TFA are in full force and
effect or (ii) is a member of an Australian GST Group unless an ITSA is in full force and effect.
SECTION 3.21 Affected Financial Institution. No Loan Party is an Affected Financial Institution.
Article IV
CONDITIONS
SECTION 4.01 Closing Date.
This Agreement, the Commitments hereunder and the obligation of each Lender to make a Refinancing Term Loan or to make a Credit Conversion on the Closing Date shall not become effective until the date on which each of the following
conditions is satisfied (or waived), in each case, as determined by the Administrative Agent:
(a) Loan Party Consent to Amendment. The Existing Administrative Agent and Collateral Agent shall have received from Holdings,
the Borrower and the other Loan Parties, either (i) a counterpart of the Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Existing Administrative Agent and Collateral Agent (which may include a copy
transmitted by facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart to the Amendment.
(b) Converting Lenders and New Lender Consent to Amendment. The Existing Administrative Agent and Collateral Agent shall have
received from the Participating Lenders (as defined in the Amendment) and the Revolving Lenders, a counterpart of the Amendment on behalf of each such Lender (or written evidence satisfactory to the Existing Administrative Agent and
Collateral Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart to the Amendment (which, in the case of the Participating Lenders (as
defined in the Amendment) (other than New Term Lenders) may be in the form of a Refinancing Participation Notice)) such that the aggregate principal amount of the Refinancing Term Loans shall equal $1,300,000,000.
(c) Collateral Agreements. HSBC, in its capacity as Administrative Agent, shall have received:
(i) Duly executed copies of the following U.S. Security Documents: The U.S. Security Agreement, the U.S. Pledge
Agreement, and the Intellectual Property Security Agreements;
(ii) A duly executed copy of the UK Debenture; and
(iii) The Australian Mining Mortgage Transfer Documentation.
(d) Agency Successor Agreement. HSBC, in its capacity as the Administrative Agent, and the Existing Administrative Agent and
Collateral Agent shall have entered into the Agency Successor Agreement, in form and substance reasonably satisfactory to HSBC.
(e) Joinder. HSBC, in its capacity as the Administrative Agent, shall have received a duly executed copy of the Joinder to the
Pari Passu Intercreditor Agreement.
(f) Legal Opinions. HSBC, in its capacity as the Administrative Agent, shall have received a written opinion of (i) Ropes &
Gray LLP, as special counsel for the Loan Parties, (ii) Minter Ellison Lawyers, Australian counsel for the Administrative Agent, (iii) Loyens & Loeff N.V., Dutch counsel for the Administrative Agent, (iv) Mayer Brown International
LLP, English counsel for the Administrative Agent and (v) Bird & Bird, as French counsel for the Loan Parties, in each case dated as of the Closing Date, in form and substance reasonably satisfactory to the Administrative Agent (and
each Loan Party hereby instructs such counsel to deliver such opinions to the Agents and Lenders).
(g) Closing Certificate. HSBC, in its capacity as the Administrative Agent shall have received a certificate of the Borrower,
dated the Closing Date, substantially in the form of Exhibit G.
(h) Secretary’s Certificates. HSBC, in its capacity as the Administrative Agent, shall have received a certificate of each Loan
Party, dated the Closing Date, including or attaching a copy of (i) each Organizational Document of each Loan Party, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates (if
applicable) of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) the relevant corporate resolutions (including the resolutions of the Board of Directors) of each Loan Party approving
and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, certified as of the Closing Date by a Responsible Officer as being in full force and effect without modification or amendment, (iv) a
good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, (v) in the case of a UK Loan Party whose shares are
the subject of a Lien in favor of the Collateral Agent (i) a certificate of that UK Loan Party certifying that no "warning notice" or "restrictions notice" (in each case as defined in Schedule 1B of the Companies Act 2006) has been
issued in respect of those shares, together with a copy of the "PSC register" (within the meaning of section 790C(10) of the Companies Act 2006) of that UK Loan Party, which is certified by a Responsible Officer of that UK Loan Party to
be correct, complete and not amended or superseded as at a date no earlier than the date of this Agreement, or (ii) a certificate of that UK Loan Party certifying that such UK Loan Party is not required to comply with Part 21A of the
Companies Act 2006, (vi) an unconditional positive, written advice from any works council in relation to the transactions contemplated by this Agreement and any other document required for compliance with the Dutch Act on works councils
(to the extent applicable) and (vii) in the case of each French Loan Party (A) a certificate of incorporation (k-bis), (B) a true and correct and up-to-date copy of its by-laws (statuts), (C) a non-bankruptcy certificate (certificat de
non-faillite) (D) a lien search certificate (état des privilèges et des nantissements) and (E) any board or shareholders' resolutions authorizing the execution and performance by such French Loan Party of the Guarantee Agreement and/or
any accession or amendment relating thereto.
(i) Fees and Expenses. Prior to or substantially concurrently with the funding of the Refinancing Term Loans hereunder, HSBC,
in its capacity as Administrative Agent, shall have received (i) all fees required to be paid by the Holdings on the Closing Date, all reasonable and out-of-pocket expenses required to be paid by Holdings and the Restricted Subsidiaries
on the Closing Date for which invoices have been presented at least two Business Days prior to the Closing Date (except as otherwise agreed by Holdings), which amounts may be offset against the proceeds of the Loans.
(j) Collateral and Guaranty Requirement.
(i) The Collateral and Guarantee Requirement shall have been satisfied subject to Section 5.17.
(ii) Each document (including any UCC (or similar) financing statement, any financing statement under any
Requirement of Law and intellectual property security agreements) required by any Collateral Agreement or under applicable Requirements of Law to be filed, registered or recorded in order to create in favor of or transfer to HSBC as the
new Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Collateral Agreement (including, without limitation, all share certificates representing the
shareholdings in each Australian Loan Party and UK Loan Party and/or its Subsidiaries, together with signed blank share transfer forms in connection therewith), shall be in proper form for filing, registration or recordation.
(k) Prepayment. HSBC, in its capacity as Administrative Agent, shall have received evidence from the Existing Administrative
Agent that the Prepayment shall have been made (or substantially concurrently with the effectiveness of this Agreement, will be made).
(l) Payoff. HSBC, in its capacity as Administrative Agent, shall have received payoff letters (and an Australian law deed of
release) evidencing repayment in full of all obligations under the Existing Revolving Credit Agreement, termination of all agreements relating thereto and the release of all Liens granted in connection therewith, with Uniform Commercial
Code or other appropriate termination statements and documents effective to evidence the foregoing.
(m) Financial Statements. HSBC, in its capacity as Administrative Agent, shall have received (i) the Audited Financial
Statements, (ii) the Unaudited Financials, and (iii) a pro forma consolidated balance sheet as of December 30, 2020, and related pro forma statement of income of Holdings for the trailing 12-month period ended December, 2020 prepared
after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of the statement of income) (the pro forma financial
statements described in this clause (iii), the “Pro Forma Financial Statements”); provided, that no Pro Forma Financial Statement shall be required to include adjustments for purchase accounting (including adjustments of the type
contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, Business Combinations (formerly SFAS 141R)).
(n) Solvency Certificate. HSBC, in its capacity as Administrative Agent, shall have received a certificate from the chief
financial officer (or other officer with reasonably equivalent responsibilities) of Holdings certifying that Holdings and its Subsidiaries on a consolidated basis after giving effect to the Transactions are Solvent.
(o) KYC. HSBC, in its capacity as Administrative Agent, shall have received at least two Business Days prior to the Closing
Date all documentation and other information about the Loan Parties that the Administrative Agent and the Joint Bookrunners reasonably determine is required by United States regulatory authorities under applicable “know your customer”
and anti-money laundering rules and regulations, including without limitation Title III of the USA Patriot Act, that shall have been reasonably requested by an initial Lender in writing at least five Business Days prior to the Closing
Date.
(p) No Material Adverse Effect. Since December 31, 2020, no Material Adverse Effect shall have occurred.
(q) Borrowing Request. HSBC, in its capacity as Administrative Agent, shall have received a Borrowing Request.
(r) Works Council. The Administrative Agent shall have received a copy of (i) the request for advice to the works council
(ondernemingsraad) of Tronox Pigments (Holland) which has jurisdiction over the transactions contemplated by the Loan Documents in respect of the transactions contemplated by the Loan Documents (including the pledge of the Equity
Interests held by Tronox Investments Holdings Limited in Tronox Pigments (Holland) and the conditional transfer of voting rights as contemplated therein) and (ii) the unconditional positive advice from such works council in respect of
the transactions contemplated by the Loan Documents (including the pledge of the Equity Interests held by Tronox Investments Holdings Limited in Tronox Pigments (Holland) and the conditional transfer of voting rights as contemplated
therein).
(s) Organizational Structure. The organizational structure and capital structure of Holdings and its Subsidiaries shall be as
set forth on Schedule 4.01.
(t) Agency Fee Letter. The Administrative Agent shall have received the Agency Fee Letter.
(u) Lien Searches. HSBC, in its capacity as Administrative Agent, shall have received copies of recent lien and judgment search
reports in the United States and all the Qualified Jurisdictions (if applicable) reasonably requested by HSBC.
(v) Insurance Certificates and Endorsements. Subject to Section 5.17, HSBC, in its capacity as Administrative Agent,
shall have received certificates or other evidence of insurance in effect as required by Section 5.09(a), with endorsements naming the Administrative Agent as lenders’ loss payee and/or additional insured, as applicable.
Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 4.01 on the
Closing Date, each Lender that has signed a Refinancing Participation Notice to the Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
SECTION 4.02 Each Credit Event. The obligation of each Lender to make a Loan or each L/C Issuer to make a L/C Credit Extension on any on the occasion of
any Credit Extension is subject to receipt of the request therefor in accordance herewith and to the satisfaction (or waiver) of the following conditions; provided that, the following conditions shall not apply to (i) any Borrowings
under any Incremental Facility, the conditions of which are set forth in Section 2.20 and (ii) any extensions of credit or Borrowings under Section 2.21 or 2.24:
(a) The representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing; 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 as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the date of such credit
extension or on such earlier date, as the case may be;
(b) At the time of and immediately after giving effect to such Credit Extension, no Default or Event of Default shall have occurred
and be continuing. Each Borrowing (provided that a conversion or a continuation of a Borrowing shall not constitute a “Borrowing” for purposes of this Section) shall be deemed to constitute a representation and warranty by the
Borrower on the date of the applicable Borrowing as to the matters specified in clauses (a) and (b) of this Section;
(c) After making the Credit Extensions requested on such date, the Total Utilization of Revolving Commitments shall not exceed the
Revolving Commitments then in effect.
Article V
AFFIRMATIVE COVENANTS
Until the Termination Date shall have occurred, each of Holdings and the Borrower covenants and agrees with the Lenders that:
SECTION 5.01 Financial Statements and Other Information. Holdings will furnish to the Administrative Agent, on behalf of each Lender:
(a) commencing with the financial statements for the fiscal year ending December 31, 2021, as soon as available, but in any event
within 90 days after the end of each fiscal year of Holdings and its consolidated Subsidiaries, audited consolidated balance sheets and related audited consolidated statements of income, stockholders’ equity and cash flows of Holdings
and its consolidated Subsidiaries as of the end of and for such year, and related notes and related explanations thereto, setting forth in each case in comparative form the figures for the previous fiscal year (it being understood that
all of the foregoing information may be furnished in the form of a Form 10-K and only the information required by such Form 10-K shall be required by this Section 5.01(a)), all reported on by Ernst & Young LLP,
PricewaterhouseCoopers LLP, Deloitte LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of
such audit (other than any exception, explanatory paragraph or qualification, that is expressly solely with respect to, or expressly resulting solely from, (A) an upcoming maturity date of the Term Facility, Revolving Facility or any
other Indebtedness occurring within one year from the time such opinion is delivered or (B) any potential inability to satisfy the Financial Covenant or any other financial covenant on a future date or in a future period)) to the effect
that such consolidated financial statements present fairly in all material respects the consolidated financial position and consolidated results of operations and cash flows of Holdings and its consolidated Subsidiaries as of the end of
and for such year on a consolidated basis in accordance with GAAP consistently applied;
(b) commencing with the financial statements for the fiscal quarter ended March 30, 2021, as soon as available, but in any event
within 45 days after the end of each the first three (3) quarters of each fiscal year of Holdings after the end of each such fiscal quarter (provided that in any fiscal quarter, unaudited consolidated balance sheets and related
consolidated statements of income, stockholders’ equity and cash flows of Holdings and its consolidated Subsidiaries and related explanations as of the end of and for such fiscal quarter (except in the case of cash flows) and the then
elapsed portion of the fiscal year, and setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheets, as of the end of) the previous fiscal year, all
certified by a Financial Officer as presenting fairly in all material respects the consolidated financial position and consolidated results of operations and cash flows of Holdings and its
consolidated Subsidiaries as of the end of and for such fiscal quarter (except in the case of cash flows) and such portion of the fiscal year on a consolidated basis in accordance with GAAP consistently applied, subject to normal
year-end audit adjustments and the absence of footnotes (it being understood that all of the foregoing information may be furnished in the form of a Form 10-Q and only the information required by such Form 10-Q shall be required by this
Section 5.01(b));
(c) for any period in which a Subsidiary has been designated as an Unrestricted Subsidiary, simultaneously with the delivery of the
financial statements referred to in clauses (a) and (b) above for such period, supplemental financial information necessary to eliminate the accounts of Unrestricted Subsidiaries from such consolidated financial
statements;
(d) not later than ten Business Days after any delivery of financial statements under clause (a) or clause (b), a
Compliance Certificate of a Financial Officer:
(i) certifying as to whether an Event of Default has occurred and, if an Event of Default has occurred, specifying
the details thereof and any action taken or proposed to be taken with respect thereto,
(ii) setting forth reasonably detailed calculations to show Consolidated EBITDA for the period then ended,
(iii) setting forth reasonably detailed calculations in the case of financial statements delivered under clause
(a) above, beginning with the financial statements for the fiscal year of Holdings ending December 31, 2022, of Excess Cash Flow for such fiscal year,
(iv) setting forth (a) a calculation of the First Lien Net Leverage Ratio as of the last day of the most recently
ended Test Period, (b) if on the last day of any Test Period (commencing with the Test Period ending June 30, 2021) there are outstanding Revolving Loans and Letters of Credit (excluding (x) undrawn Letters of Credit, (y) Letters of
Credit (whether drawn or undrawn) to the extent reimbursed, Cash Collateralized or backstopped on terms reasonably acceptable to the applicable L/C Issuer Bank and (z) solely for the first two full fiscal quarters ending after the
Closing Date, any Closing Date Revolving Borrowings drawn to finance the payment of Transaction Expenses) in an aggregate principal amount exceeding 35% of the aggregate principal amount of all Revolving Commitments under all
outstanding Revolving Facilities (including any Incremental Revolving Facilities), whether such First Lien Net Leverage Ratio as of the last day of the most recently ended Test Period is less than or equal to 4.75 to 1.00 and (c) if the
First Lien Net Leverage Ratio as of the last day of the most recently ended Test Period would result in a change in the applicable “Pricing Level” as set forth in the definition of “Applicable Rate,” setting forth a calculation of such
First Lien Net Leverage Ratio, and
(v) in the case of financial statements delivered under clause (a) or clause (b) above, setting
forth a reasonably detailed calculation of the Net Proceeds received during the applicable period by or on behalf of the Borrower or any Subsidiary in respect of any event described in clause (a) of the definition of the term
“Prepayment Event” and the portion of such Net Proceeds that has been invested or is intended to be reinvested in accordance with the first proviso in Section 2.11(b);
(e) not later than 90 days after the commencement of each fiscal year of Holdings, a detailed consolidated budget for Holdings and its
Restricted Subsidiaries for such fiscal year in a form customarily prepared by Holdings.
(f) promptly following any request therefor, such other information (which may be in the form of an officer’s certificate) regarding
the operations, business affairs and financial condition of Holdings or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may
reasonably request in writing.
Documents required to be delivered pursuant to Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the earlier of the date (A) on which Holdings posts such documents, or
provides a link thereto, on Holdings or one of its Affiliates’ website on the Internet or (B) on which such documents are posted on Holdings’ behalf on IntraLinks/IntraAgency or another website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Holdings shall deliver such documents to the Administrative Agent upon its
reasonable request until a written notice to cease delivering such documents is given by the Administrative Agent and (ii) Holdings shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such
documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the
delivery of or maintain paper copies of the documents referred to above, and each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents.
Holdings and the Borrower hereby acknowledge that (a) the Administrative Agent and/or the Joint Bookrunners will make available to the Lenders materials and/or information provided by or on behalf of the Holdings or Borrower
hereunder (collectively, “Company Materials”) by posting the Company Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have
personnel who do not wish to receive material nonpublic information with respect to Holdings, the Borrower or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and
other market-related activities with respect to such Persons’ securities. Each of Holdings and the Borrower hereby agrees that it will, upon the Administrative Agent’s reasonable request, identify that portion of the Company Materials
that may be distributed to the Public Lenders and that (i) all such Company Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page
thereof; (ii) by marking Company Materials “PUBLIC,” Holdings and the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Bookrunners and the Lenders to treat such Company Materials as not containing any
material non-public information (although it may be sensitive and proprietary) with respect to Holdings, the Borrower or their respective Affiliates or their respective securities for purposes of United States federal and state
securities laws (provided, however, that to the extent such Company Materials constitute Information, they shall be treated as set forth in Section 9.12); (iii) all Company Materials marked “PUBLIC” are permitted
to be made available through a portion of the Platform designated “Public Side Information”; and (iv) the Administrative Agent and the Joint Bookrunners shall be entitled to treat any Company Materials that are not marked “PUBLIC” as
being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
Notwithstanding anything to the contrary in this Article V, none of Holdings or any of its Restricted Subsidiaries will be required to disclose, permit the inspection, examination or making copies or abstracts of, or
discussion of, any document, information or other matter pursuant to this Article V that (i) 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 law or any binding confidentiality agreement or (iii) is subject to attorney-client or similar privilege or constitutes attorney
work product.
Holdings may satisfy its obligations in this Section 5.01 with respect to financial information relating to Holdings by furnishing financial and other information relating to any direct or indirect Parent Entity of Holdings
as may exist at any time in the future (any such entity the “Future Parent Entity”) instead of Holdings; provided that to the extent either (x) such Future Parent Entity holds assets
(other than its direct or indirect interest in Holdings) that exceed 2.5% of the assets of Holdings and its Subsidiaries as of such fiscal period end or (y) such Future Parent Entity has revenues (other than revenue of Holdings and its
Subsidiaries) that exceed 2.5% of the total revenue of Holdings and its Subsidiaries for the immediately preceding fiscal period, then such information related to such Future Parent Entity shall be accompanied by consolidating
information that explains in reasonable detail the differences between the information of such Future Parent Entity, on the one hand, and the information relating to Holdings and its Subsidiaries on a stand-alone basis, on the other
hand.
SECTION 5.02 Notices of Material Events. Promptly after any Responsible Officer of any Holdings obtains actual knowledge thereof, Holdings will furnish to the Administrative
Agent (for distribution to each Lender through the Administrative Agent) written notice of the following:
(a) the occurrence of any Default; and
(b) (1) 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 senior executive officer of Holdings or the Borrower, affecting Holdings, the Borrower or any of the Restricted Subsidiaries or (2) the receipt of a written notice of an Environmental
Liability or the occurrence of an ERISA Event, in each case that could 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 Responsible 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 promptly after the occurrence thereof (and in any event
within 60 days or such longer period as reasonably agreed to by the Administrative Agent) written notice of any change (i) in any U.S. Loan Party’s legal name (as set forth in its certificate of organization or like document), (ii) in
the jurisdiction of incorporation or organization or the location of the chief executive office of any Loan Party or in the form of its organization or (iii) in any Loan Party’s organizational identification number to the extent that
such Loan Party is organized or owns Mortgaged Property or Mining Property or any other property required to be subject to a Mortgage in a jurisdiction where an organizational identification number is required to be included in a UCC
financing statement or a financing statement under any Requirement of Law for such jurisdiction.
SECTION 5.04 Existence; Conduct of Business. Each of Holdings and the Borrower will, and will cause each Restricted Subsidiary to, do or cause to be done
all things necessary to obtain, preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of
its business, in each case (other than the preservation of the existence of Holdings and the Borrower) to the extent that the failure to do so could reasonably be expected to have a Material Adverse Effect, provided that the
foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03 or 6.06 or any Disposition permitted by Section 6.05.
SECTION 5.05 Payment of Taxes, Etc. Each of Holdings and the Borrower will, and will cause each Restricted Subsidiary to, pay its obligations in respect
of Taxes before the same shall become delinquent or in default, except (a) where the failure to make payment could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, or (b) Taxes that
are being contested in good faith by appropriate proceedings for which adequate reserves have been made in accordance with GAAP. The Borrower will continue to be properly treated as a “disregarded entity” owned by a regarded entity
that is not a United States person for U.S. federal income tax purposes.
SECTION 5.06 Other Information. Promptly upon their becoming available, Holdings will furnish to the Administrative Agent copies of (i) all financial
statements, reports, notices and proxy statements sent or made available generally by any Holding Company, the Borrower or any Significant Subsidiary to its security holders or bondholders acting in such capacity, (ii) all regular and
periodic reports and all registration statements and prospectuses, if any, filed by any Loan Party with any securities exchange or with the SEC, ASIC or any other Governmental Authority, (iii) all press releases and other statements
made available generally by any Holding Company or any of their Significant Subsidiaries to the public concerning material developments in the business of any Holding Company or any of their Significant Subsidiaries, and (iv) such other
information and data with respect to Holdings or any of its Restricted Subsidiaries as from time to time may be reasonably requested by the Administrative Agent.
SECTION 5.07 [Reserved].
SECTION 5.08 Maintenance of Properties. Holdings will, and will cause each Restricted Subsidiary to, keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and tear excepted, except where the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. In
the event of the presence of any Hazardous Material on any real property of Holdings or any Subsidiary which is in violation of Environmental Laws, Holdings and its Subsidiaries, upon discovery thereof, shall take all reasonable and
necessary steps to initiate and expeditiously complete all response, corrective and other action required under Environmental Laws or by a Governmental Authority to mitigate and eliminate any such violation or potential liability, and
shall keep the Administrative Agent informed of their actions and the results of such actions as the Administrative Agent shall reasonably request, except where the failure to do so could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
SECTION 5.09 Insurance. (a) Holdings will maintain or cause to be maintained, with financially sound and reputable insurers, such public liability
insurance, third party property damage insurance, business interruption insurance and casualty insurance with respect to liabilities, losses or damage in respect of the assets, properties and businesses of Holdings and its Subsidiaries
as may customarily be carried or maintained under similar circumstances by Persons of established reputation engaged in similar businesses, in each case in such amounts (giving effect to self-insurance which Holdings believes (in the
good faith judgment of management of Holdings) is reasonable and prudent in light of the size and nature of its business) and against at least such risks (and with such risk retentions) as Holdings believes (in the good faith judgment
of the management of Holdings) are reasonable and prudent in light of the size and nature of its business; and will furnish to the Lenders, upon written request from the Administrative Agent, information presented in reasonable detail
as to the insurance carried, with such deductibles, covering such risks and otherwise on such terms and conditions as shall be customary for such Persons. Without limiting the generality of the foregoing, Holdings will maintain or cause
to be maintained replacement value casualty insurance on the Collateral under such policies of insurance, with such insurance companies, in such amounts, with such deductibles, and covering such risks as are at all times carried or
maintained under similar circumstance by Persons of established reputation engaged in similar businesses. Each such policy of insurance shall (i) name the Collateral Agent, on behalf of the Secured Parties, as an additional insured
thereunder as its interests may appear, and (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement, satisfactory in from and substance to Collateral Agent, that names the Collateral Agent, on
behalf of the Secured Parties, as the loss payee thereunder. Holdings shall provide or shall cause to be provided at least thirty days’ prior written notice to Collateral Agent of any modification adverse the interests of the Lenders
hereunder or cancellation of such policy.
(b) If any portion of any Mortgage Property is at any time located in a Flood Zone with respect to which flood insurance has been made available under the Flood Program, Holdings shall,
or shall cause the relevant Loan Party to, (i) maintain or cause to be maintained, flood insurance sufficient to comply with all applicable requirements promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the
Administrative Agent Evidence of Flood Insurance with respect to such Mortgaged Property.
SECTION 5.10 Books and Records; Inspection and Audit Rights. Holdings will, and will cause each Restricted Subsidiary to, maintain proper books of record
and account in which entries that are full, true and correct in all material respects and are in conformity with GAAP (or applicable local standards) consistently applied shall be made of all material financial transactions and matters
involving the assets and business of Holdings or the Restricted Subsidiaries, as the case may be. Holdings will, and will cause the Restricted Subsidiaries to, permit any representatives designated by the Administrative Agent, 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 and as often as reasonably requested; provided that, 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
5.10 and the Administrative Agent shall not exercise such rights more often than one time during any calendar year absent the existence of an Event of Default, which visitation and inspection shall be at the reasonable expense of
Holdings; provided, further that (a) when an Event of Default exists and is continuing, the Administrative Agent (or any of its representatives or independent contractors) may do any of the foregoing at the expense of Holdings at any
time during normal business hours and upon reasonable advance notice and (b) the Administrative Agent shall give Holdings the opportunity to participate in any discussions with Holdings’ independent public accountants.
SECTION 5.11 Compliance with Laws. Holdings will, and will cause each Subsidiary to, (x) comply with its Organizational Documents and all Requirements of
Law (including Environmental Laws, ERISA, Anti-Corruption Laws, OFAC, the USA Patriot Act and other anti-terrorism laws) applicable to it or its property, in each case, except where the failure to do so (other than compliance with
Anti-Corruption Laws, OFAC, the USA Patriot Act and other applicable anti-terrorism laws), individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect and (y) maintain in effect and enforce
policies and procedures as in effect on the Closing Date and designed to ensure compliance by Holdings and each Subsidiary and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable
Sanctions.
SECTION 5.12 Use of Proceeds.
(a) The Borrower will use the proceeds of the Refinancing Term Loans made or converted on the Closing Date to refinance the Existing
Dollar Term Loans.
(b) The proceeds of the initial Revolving Loans will be used (1) on the Closing Date (i) to fund Transaction Costs, (ii) refinance the
obligations under the Existing Revolving Credit Agreement and pay accrued interest and fees outstanding as of the Closing Date under the Existing Revolving Credit Agreement and (iii) to finance ordinary course working capital needs, and
(2) after the Closing Date, for any purpose not prohibited by this Agreement, including for working capital and general corporate purposes (including Permitted Acquisitions). Letters of Credit may be issued on the Closing Date to
backstop or replace letters of credit, bankers guarantees and performance and similar bonds outstanding on the Closing Date (including by “grandfathering” such existing letters of credit or bankers guarantees in the Revolving Facility)
or for other general corporate purposes.
(c) The Borrower will use the proceeds of (i) subject to Sections 5.12(d) and 5.12(e), any Incremental Term Loans for working capital
and/or general corporate purposes, Permitted Acquisitions and other Investments, Restricted Payments or such other purpose or purposes set forth in the applicable Incremental Facility Amendment and (ii) any Incremental Revolving Loans
for working capital and/or general corporate purposes or such other purpose or purposes set forth in the applicable Incremental Facility Amendment. The Borrower will use the proceeds of any Other Term Loans and Other Revolving Loans
for the purposes set forth in Section 2.21(a) and will apply the proceeds of any Credit Agreement Refinancing Indebtedness among the Loans and any Incremental Facilities in accordance with the terms of this Agreement.
(d) The Borrower will use the proceeds of the 2022 Incremental Term Loans (as defined in the 2022 Incremental Amendment) made on the
2022 Amendment Effective Date (as defined in the 2022 Incremental Amendment) as part of the funds necessary to redeem in their entirety the Senior Secured 2025 Notes.
(e) The Borrower will use the proceeds of the 2023 Incremental Term Loans (as defined in the 2023 Incremental Amendment) made on the
2023 Amendment Effective Date (as defined in the 2023 Incremental Amendment) to repay all or a portion of the outstanding amounts of initial Revolving Loans under the Revolving Facility on the 2023 Amendment Effective Date, to repay
certain other outstanding revolving loans, for the funding of capital expenditures and for general corporate purposes.
(f) The Borrower will use the proceeds of the 2024 Other Term Loans made on the 2024 Amendment Effective Date to repay all of the
outstanding amounts of Existing Incremental Term Loans (as defined in the 2024 Refinancing Amendment) on the 2024 Amendment Effective Date.
(g) The proceeds of the 2024 Other Revolving Loans will be used for any purpose not prohibited by this Agreement, including for
working capital and general corporate purposes (including Permitted Acquisitions). Letters of Credit may be issued on the 2024-A Amendment Effective Date to backstop or replace letters of credit, bankers guarantees and performance and
similar bonds outstanding on the 2024-A Amendment Effective Date (including by “grandfathering” such existing letters of credit or bankers guarantees in the Revolving Facility) or for other general corporate purposes.
(h) The Borrower will use the proceeds of the 2024-B Term Loans made on the 2024-B Amendment Effective Date to repay all of the
outstanding amounts of Refinancing Term Loans on the 2024-B Amendment Effective Date.
SECTION 5.13 Additional Subsidiaries. Subject to the Agreed Security Principles and (in the case of any Restricted Subsidiary formed or acquired after the
Closing Date which is or will be an Australian Subsidiary Section 5.28), if any additional Restricted Subsidiary is formed or acquired after the Closing Date, Holdings will, within 90 days (or, in each case, such longer period
as the Administrative Agent shall reasonably agree) after such newly formed or acquired Restricted Subsidiary is formed or acquired (unless such Subsidiary is an Excluded Subsidiary and not otherwise required under the Loan Documents to
become a Loan Party), notify the Administrative Agent thereof, and all actions (if any) required to be taken with respect to such newly formed or acquired Subsidiary in order to satisfy the Collateral and Guarantee Requirement shall
have been taken with respect to such Subsidiary, the assets of such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party within 90 days after such formation or
acquisition (or such longer period as the Administrative Agent shall reasonably agree, including in relation to an Australian Restricted Subsidiary); provided that any designation of an Unrestricted Subsidiary as a Restricted
Subsidiary or any Restricted Subsidiary ceasing to be an Excluded Subsidiary shall constitute the formation or acquisition of a Restricted Subsidiary for purposes of this Section 5.13.
SECTION 5.14 Further Assurances.
(a) Subject to the Agreed Security Principles, each of Holdings and the Borrower will, and will cause each 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),
that may be required under any applicable law and that the Administrative Agent or the Required Lenders may reasonably request, to cause the Collateral and Guarantee Requirement to be and remain satisfied at all times, all at the
expense of the Loan Parties.
(b) If, after the Closing Date, and subject to the Agreed Security Principles, any material assets (including any Material Real
Property) with a Fair Market Value in excess of $20,000,000, are acquired by the Borrower or any other Loan Party or are owned by any Restricted Subsidiary on or after the time it becomes a Loan
Party pursuant to Section 5.13 (other than assets constituting Collateral under a Collateral Agreement that become subject to the Lien created by such Collateral Agreement upon acquisition thereof or constituting Excluded
Assets), Holdings will promptly notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Holdings will, subject to the Agreed Security Principles, cause such assets to be subjected to a Lien securing the
Secured Obligations and will take and cause the other Loan Parties to take, such actions as shall be necessary and reasonably requested by the Administrative Agent and to, subject to the Agreed Security Principles, satisfy the
Collateral and Guarantee Requirement.
(c) Notwithstanding the foregoing, the Collateral Agent shall not enter into any Mortgage in respect of any improved real property
acquired by any U.S. Loan Party after the Closing Date or to be mortgaged in connection with a MIRE Event unless the Collateral Agent has provided to the Lenders (i) if such Mortgaged Property relates to an improved real property not
located in a Flood Zone, a completed Flood Certificate with respect to such improved real property from a third-party vendor at least ten (10) Business Days prior to entering into such Mortgage or (ii) if such Mortgaged Property relates
to an improved real property located in a Flood Zone, the following documents with respect to such improved real property at least thirty (30) days prior to entering into such Mortgage: (i) a completed Flood Certificate from a third
party vendor; (ii) if such improved real property is located in a Flood Zone, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage
is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required to comply with all applicable requirements promulgated pursuant to the Flood Insurance Laws, Evidence of Flood
Insurance; provided that the Collateral Agent may enter into any such Mortgage prior to the notice period specified above if the Collateral Agent shall have received confirmation from each applicable Lender that such Lender has
completed any necessary flood insurance due diligence to its reasonable satisfaction.
SECTION 5.15 Ratings. Holdings will use commercially reasonable efforts to cause (a) the Borrower to continuously have a public corporate credit rating
from S&P and a public corporate family rating from Moody’s (but not to maintain a specific rating) and (b) the Term Facility to be continuously rated by each of S&P and Moody’s (but not to maintain a specific rating).
SECTION 5.16 Lenders Meetings. If requested by the Administrative Agent, Holdings or the Borrower will hold and participate in one customary conference
call each fiscal year for Lenders to discuss financial information of Holdings and its Restricted Subsidiaries. Prior to each such conference call, the Borrower shall notify the Administrative Agent of the time and date of such
conference call; provided that if the Borrower holds a conference call open to the public or holders of any public securities to discuss the financial condition and results of operations of Holdings and its Subsidiaries for the
most recently ended measurement period for which financial statements have been delivered pursuant to Sections 5.01(a) or 5.01(b) above, such conference call will be deemed to satisfy the requirements of this Section
5.16.
SECTION 5.17 Certain Post-Closing Obligations. As promptly as practicable, and in any event, within the time period after the Closing Date specified in Schedule
5.17 or such later date as the Administrative Agent reasonably agrees to in writing, including to reasonably accommodate circumstances unforeseen on the Closing Date, Holdings and the Borrower shall, and Holdings shall cause the
other Loan Parties to, deliver the documents or take the actions specified in Schedule 5.17.
SECTION 5.18 Designation of Subsidiaries. Holdings or the Borrower may at any time after the Closing Date designate any Restricted Subsidiary as an
Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that immediately before and after giving effect to such designation on a Pro Forma Basis (i) no Event of Default shall have occurred and
be continuing and (ii) the Cash Interest Coverage Ratio shall be no less than 2.00:1.00. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Closing Date shall constitute an Investment by Holdings (or
its applicable Restricted Subsidiary) therein at the date of designation in an amount equal to the Fair Market Value of Holdings’ or its Restricted Subsidiary’s (as applicable) investment therein. The designation of any Unrestricted
Subsidiary as a Restricted Subsidiary shall constitute (x) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time, (y) a return on any Investment by Holdings (or its
applicable Restricted Subsidiary) in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the Fair Market Value at the date of such designation of Holdings or its Subsidiary’s (as applicable) Investment in
such Subsidiary, and (z) the formation or acquisition of a Restricted Subsidiary for purposes of Section 5.13.
SECTION 5.19 Centre of Main Interests. For the purpose of the EU Insolvency Regulation, (i) if the jurisdiction of organization or incorporation of
Holdings or any Restricted Subsidiary (other than a Dutch Loan Party) is a member state of the European Union, Holdings shall, and shall cause the applicable Restricted Subsidiary(other than a Dutch Loan Party) to, have and maintain its
COMI situated in the jurisdiction of its organization or incorporation and have no “establishment” (as that term is used in Article 2(10) of the EU Insolvency Regulation) in any other jurisdiction, and (ii) Holdings shall cause each
Dutch Loan Party to, have and maintain its COMI situated in either its current (corporate) seat or its current business address and have no “establishment” (as that term is used in Article 2(10) of the EU Insolvency Regulation) in any
other jurisdiction.
SECTION 5.20 Change in Nature of Business. Holdings shall, and shall cause the Restricted Subsidiaries to, engage in a line of business substantially the
same as those lines of business conducted by Holdings and the Restricted Subsidiaries on the Closing Date or any business(es) or any other activities that are reasonably similar, ancillary, incidental, complimentary or related to, or a
reasonable extension, development or expansion of, the business conducted by Holdings and the Restricted Subsidiaries on the Closing Date.
SECTION 5.21 Accounting Changes. Holdings shall, and shall cause the Restricted Subsidiaries to, maintain their fiscal year as in effect on the Closing
Date; 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.
SECTION 5.22 MIRE Events. Prior to the occurrence of a MIRE Event, the Borrower shall provide (and shall use commercially reasonable efforts to provide as
promptly as reasonably possible prior to such MIRE Event) to the Collateral Agent the following documents in respect of any Mortgaged Property: (a) a completed Flood Certificate from a third party vendor; (b) if such improved real
property is located in a Flood Zone, (i) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (ii) evidence of the
receipt by the applicable Loan Parties of such notice; (c) if required to comply with all applicable requirements promulgated pursuant to the Flood Insurance Laws, Evidence of Flood Insurance and (d) any other customary documentation
that may be reasonably requested by the Collateral Agent.
SECTION 5.23 People with Significant Control Regime. Holdings shall (and shall ensure that each of its Subsidiaries shall) (i) within the relevant
timeframe, comply with any notice it receives pursuant to Part 21A of the Companies Act 2006 from any company incorporated in the United Kingdom whose shares are the subject of a Lien in favor of the Collateral Agent and (ii) promptly
provide the Administrative Agent with a copy of that notice.
SECTION 5.24 Dutch Law Undertakings.
(a) Holdings shall ensure that no Loan Party incorporated under Dutch law shall create or become a member of a fiscal unit (fiscale eenheid) for Dutch corporate income tax or value added tax purposes (other than such fiscal unit consisting solely of Loan Parties).
(b) Holdings shall ensure that no Loan Party incorporated under Dutch law shall issue a declaration of joint and several liability as
referred to in Section 2:403 of the Dutch Civil Code.
SECTION 5.25 Australian Tax Consolidated Group. Holdings shall ensure that if any Loan Party is or becomes a member of an Australian Tax Consolidated
Group, such Loan Party shall (a) enter into and comply with a TSA and a TFA and ensure that a TSA and a TFA are maintained in full force and effect, (b) not amend the TSA where such variation or amendment may result in it not being a
TSA for the purposes of the Australian Tax Act, (c) not amend or vary the TSA or the TFA in a manner that could reasonably be expected to be adverse in any material respect to the Lenders without the Administrative Agent’s prior written
consent (it being understood and agreed that any such amendment that (i) does not adversely affect in any material respect a Loan Party’s cash flows or financial condition or its present or prospective tax liabilities or liabilities
under the TSA or TFA or (ii) involves the accession of a new member, or release of a former member, of such Australian Tax Consolidated Group, shall be deemed to be not adverse to the Lenders in any material respect) and (d) not cease
to be a party to, or replace or terminate, the TSA or TFA, without the Administrative Agent’s prior written consent.
SECTION 5.26 Australian GST Group. Holdings shall ensure that if any Loan Party is or becomes a member of an Australian GST Group, such Loan Party shall
(a) enter into and comply with the terms of the ITSA of which it is a party, (b) provide a copy of the ITSA to the Administrative Agent within five Business Days of request, (c) ensure that the ITSA is maintained in full force and
effect while the Australian GST Group is in existence, (d) not amend or vary the ITSA in a manner that could reasonably be expected to be adverse in any material respect to the Lenders without the Administrative Agent’s prior written
consent (it being understood and agreed that any such amendment that does not adversely affect in any material respect a Loan Party’s cash flows or financial condition or its present or prospective indirect tax liabilities or
liabilities under the ITSA shall be deemed to be not adverse to the Lenders in any material respect), (d) not cease to be a party to, or replace or terminate the ITSA, without the Administrative Agent’s prior written consent, (e) ensure
that the ITSA is in the approved form as determined by the Australian Commissioner of Taxation from time to time, (f) ensure that Contribution Amounts are determined on a reasonable basis, and (g) ensure that the representative member
of the Australian GST Group provides a copy of the ITSA to the Australian Commissioner of Taxation within 14 days of request or within such other time required by the Australian Commissioner of Taxation.
SECTION 5.27 Australian PPS Law. Holdings shall ensure that if a Loan Document (or any of the transactions contemplated by any Loan Document) is or
contains a security interest under the Australian PPS Law, each Australian Loan Party shall do anything (such as obtaining consents, completing, signing and producing documents and supplying information) which the Administrative Agent
or the Collateral Agent considers reasonably necessary for the purposes of (i) ensuring that the security interest is enforceable, perfected and otherwise effective; (ii) enabling the Administrative Agent or the Collateral Agent to
apply for any registration, or give any notification, in connection with the security interest so that it has the priority required by the Administrative Agent or the Collateral Agent; and (iii) enabling the Administrative Agent or the
Collateral Agent to exercise powers in connection with the security interest. Without limiting any other provision of this Agreement or any other Loan Document, each Australian Loan Party waives its right to receive any verification
statement (or notice of any verification statement) in respect of any financing statement or financing change statement relating to any security interest created under this document or any other Loan Document. Notwithstanding any other
provision of this document or any other Loan Document, each of the Collateral Agent and the Administrative Agent (i) is not responsible for ensuring that the Australian PPS Law is complied with in relation to the Loan Documents or for
ensuring the accuracy, completeness or effectiveness of any registration or perfection, or the priority, of any security interest and (ii) is not liable to any person for any loss arising in relation to the Loan Documents in connection
with the Australian PPS Law, the register in respect of the Australian PPS Law, any defect in registration or loss of priority in connection with the Australian PPS Law or for acting on any advice given by legal counsel except to the
extent that such loss is a direct result of a breach by it of its obligations under this clause. For the purposes of this clause, the following words and expressions have the same meanings given to them in the Australian PPS Law:
“financing change statement”, “financing statement” and “verification statement”, and “PPS Law (Australia)” means the Australian Personal Property Securities Act 2009 (Cth) and any amendment
made at any time to any other law, by-law or regulation as a consequence of the Australian PPS Law.
SECTION 5.28 Australian Financial Assistance and Related Matters
(a) Holdings shall cause each Loan Party to ensure that (i)(x) all board and shareholder resolutions that are required to be passed
under the Corporations Act to approve the giving of financial assistance by each Whitewash Australian Entity in connection with the entering into and performance of each of the Loan Documents by each Whitewash Australian Entity are
passed; and (y) all duly completed Whitewash Documents in respect of each Whitewash Australian Entity are lodged with ASIC in accordance with the Corporations Act to the extent required, in each case on or prior to the Whitewash
Resolution Date and (ii) the Loan Parties shall provide the Administrative Agent with a certified copy of all the Whitewash Documents, together with evidence that all Whitewash Documents have been (to the extent required) lodged with
ASIC within the required time periods, promptly upon receiving a request from the Administrative Agent to do so (such request not to be given before the Whitewash Resolution Date).
(b) Each Whitewash Australian Entity shall have satisfied the requirements of section 260B of the Corporations Act by the Whitewash
Completion Date.
Article VI
NEGATIVE COVENANTS
Until the Termination Date shall have occurred, each of Holdings and the Borrower covenants and agrees with the Lenders that:
SECTION 6.01 Indebtedness; Certain Equity Securities.
(a) Holdings will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(i) Indebtedness of Holdings and the Restricted Subsidiaries under the Loan Documents (including any Indebtedness
incurred pursuant to Section 2.20, 2.21 or 2.24);
(ii) Indebtedness (A) outstanding on the date hereof; provided that Indebtedness with an outstanding principal
amount in excess of $10,000,000 shall only be permitted if set forth on Schedule 6.01 or described in the 10-K filed by Holdings on February 23, 2021 and (B) and any Permitted Refinancing thereof;
(iii) Guarantees by Holdings and the Restricted Subsidiaries in respect of Indebtedness of Holdings or any Restricted
Subsidiary otherwise permitted hereunder; provided that (A) such Guarantee is otherwise permitted by Section 6.04 and (B) if the Indebtedness being Guaranteed is subordinated to the Loan Document Obligations, such
Guarantee shall be subordinated to the Guarantee of the Loan Document Obligations on terms at least as favorable (as reasonably determined by Holdings) taken as a whole, to the Lenders as those contained in the subordination of such
Indebtedness;
(iv) Indebtedness of Holdings or any Restricted Subsidiary owing to Holdings or any Restricted Subsidiary to the extent
the corresponding Investment is permitted by Section 6.04;
(v) (A) Indebtedness (including Capital Lease Obligations) of Holdings or any Restricted Subsidiary financing the
acquisition, construction, repair, replacement, installation or improvement of any property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property); provided
that such Indebtedness is incurred concurrently with or within 270 days after the applicable acquisition, construction, repair, replacement, installation or improvement, and (B) any Permitted Refinancing of any Indebtedness set forth in
the immediately preceding subclause (A); provided further that, at the time of any such incurrence of Indebtedness and after giving Pro Forma Effect thereto and to the use of the proceeds thereof, the aggregate principal
amount of Indebtedness that is outstanding in reliance on this clause (v) shall not exceed the greater of $200,000,000 and 25.0% of Consolidated EBITDA for the most recently ended Test Period as of such time (plus, in the case of clause
(B), an amount equal to the amounts described in clause (a)(i) to the proviso to the definition of Permitted Refinancing);
(vi) Indebtedness in respect of (A) Swap Agreements entered into to hedge or mitigate risks to which Holdings or any
Restricted Subsidiary has actual exposure (other than those in respect of shares of capital stock or other Equity Interests of Holdings or any Restricted Subsidiary) and (B) Swap Agreements entered into in order to effectively cap,
collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of Holdings or any Restricted Subsidiary;
(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 Holdings or any Restricted Subsidiary) after the date hereof as a result of an Acquisition Transaction permitted by this Agreement, or Indebtedness of any Person that is
assumed by Holdings or any Restricted Subsidiary in connection with an Acquisition Transaction or similar Investment or an acquisition of assets by Holdings or such Restricted Subsidiary permitted by this Agreement; provided
that (1) such Indebtedness is not incurred in contemplation of such Acquisition Transaction or similar Investment or acquisition of assets, (2) other than with respect to a Limited Condition Transaction in which case, compliance with
this proviso shall be determined in accordance with Section 1.08(a), before and after giving Pro Forma Effect to the assumption of such Indebtedness and the transactions consummated in connection therewith, no Event of
Default shall have occurred and be continuing, (3) such Indebtedness is only the obligation of the Person and/or Person’s Subsidiaries that are acquired or that acquire the relevant assets (unless otherwise permitted by a separate
basket), and (4) any Lien on such Indebtedness shall be permitted by Section 6.02(xi) and (B) any Permitted Refinancing of Indebtedness incurred pursuant to the foregoing subclause (A);
(viii) Indebtedness outstanding in respect of Permitted Receivables Financings;
(ix) Indebtedness representing deferred compensation to employees of Holdings (and any direct or indirect Parent
Entity) and the Restricted Subsidiaries incurred in the ordinary course of business;
(x) Indebtedness consisting of unsecured promissory notes issued by any Loan Party to current or former officers,
managers, consultants, independent contractors, directors and employees or their respective estates, successors, spouses, former spouses, domestic partners, heirs, legatees or distributees to finance the purchase or redemption of Equity
Interests of Holdings (or any direct or indirect Parent Entity) permitted by Section 6.08(a);
(xi) (A) Indebtedness arising from an agreement providing for indemnification obligations or obligations in respect of
purchase price (including earnouts) or other similar adjustments incurred in an Acquisition Transaction or similar Investment permitted by this Agreement, any other Investment or any Disposition, in each case permitted under this
Agreement and (B) Indebtedness arising from guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance pursuant to any such agreement described in clause (A);
(xii) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred (A)
in the ordinary course of business to current or former directors, officers, employees, members of management, managers and consultants of Holdings (or any direct or indirect Parent Entity) and/or any Restricted Subsidiary and (B) in
connection with the Transactions and any Permitted Acquisition or other Investment permitted hereunder;
(xiii) Cash Management Obligations and other Indebtedness in respect of netting services, corporate credit cards,
overdraft protections and similar arrangements and Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, in each case in the ordinary
course of business;
(xiv) (A) Indebtedness, which may be secured in accordance with Section 6.02, of Holdings or any Restricted
Subsidiary and (B) any Permitted Refinancing Indebtedness incurred pursuant to the foregoing subclause (A); provided that at the time of the incurrence thereof and after giving Pro Forma Effect thereto, the aggregate principal
amount of Indebtedness outstanding in reliance on this clause (xiv) shall not exceed the greater of $150,000,000 and 20.0% of Consolidated EBITDA for the most recently ended Test Period as of such time (plus, in the case of
clause (B), an amount equal to the amounts described in clauses (a)(i) and (a)(ii) to the proviso to the definition of Permitted Refinancing);
(xv) Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in
supply agreements, in each case in the ordinary course of business;
(xvi) Indebtedness incurred by Holdings or any Restricted Subsidiary in respect of letters of credit, bank guarantees,
bankers’ acceptances, or similar instruments issued or created, or related to obligations or liabilities (other than Indebtedness) incurred in the ordinary course of business, including 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;
(xvii) obligations in respect of performance, bid, appeal and surety bonds, bankers’ acceptance facilities and
completion guarantees, leases, government or trade contracts and similar obligations provided by the Borrower or any Restricted Subsidiary or obligations in respect of letters of credit, bank guarantees or similar instruments related
thereto, in each case in the ordinary course of business or consistent with past practice;
(xviii) Indebtedness comprising obligations in respect of take or pay contracts entered into the ordinary course of
business;
(xix) Indebtedness (the Indebtedness incurred pursuant to this Section 6.01(a)(xix), “Ratio Indebtedness”)
of Holdings or any Restricted Subsidiary in an aggregate outstanding amount that shall not cause, after giving effect to the incurrence of such Ratio Indebtedness and the use of proceeds thereof, calculated, as applicable, on a Pro
Forma Basis as of the most recently ended Test Period (but excluding from the computation thereof the proceeds of such Indebtedness and assuming that any Ratio Indebtedness in the form of a commitment is fully drawn) and, if applicable,
determined in accordance with Section 1.08, (x) in the case of any Ratio Indebtedness that is secured by a Lien on the Collateral on a pari passu basis with the 2024-B Term Facility
and 2024 Other Revolving Facility, the First Lien Net Leverage Ratio (determined on a Pro Forma Basis) does not exceed (I) 3.50:1.00 as of the most recently ended Test Period or, (II) if applicable, at the election of the Borrower to
the extent such Ratio Indebtedness is incurred in connection with the financing of a Permitted Acquisition or similar Investment permitted under the Loan Documents, the First Lien Net Leverage Ratio in effect for the most recently ended
Test Period or where applicable, (y) in the case of any Ratio Indebtedness that is secured by a Lien on the Collateral on a basis junior to the 2024-B Term Facility and 2024 Other Revolving Facility, the Secured Net Leverage Ratio does
not exceed (I) 4.50:1.00 or, (II) if applicable, at the election of the Borrower to the extent such Ratio Indebtedness is incurred in connection with the financing of a Permitted Acquisition or similar Investment permitted under the
Loan Documents, the Secured Net Leverage Ratio in effect for the most recently ended Test Period or where applicable, and (z) in the case of any Ratio Indebtedness that is unsecured or secured by a Lien on assets that do not constitute
Collateral, either (a) the Total Net Leverage Ratio does not exceed (I) 5.00:1.00 or, (II) if applicable, at the election of the Borrower to the extent such Ratio Indebtedness is incurred in connection with the financing of a Permitted
Acquisition or similar Investment permitted under the Loan Documents, the Total Net Leverage Ratio in effect for the most recently ended Test Period or (b) the Cash Interest Coverage Ratio is not less than (I) 2.00 to 1.00 (or to the
extent such Ratio Indebtedness is incurred in connection with the financing of a Permitted Acquisition or similar Investment permitted under the Loan Documents, 1.75 to 1.00) or (II) if applicable, at the election of the Borrower to the
extent such Ratio Indebtedness is incurred in connection with the financing of a Permitted Acquisition or similar Investment permitted under the Loan Documents, the Cash Interest Coverage Ratio in effect for the most recently ended Test
Period; provided that:
(A) Ratio Indebtedness in the form of term facilities shall have a Weighted Average Life to Maturity not shorter than
the remaining Weighted Average Life to Maturity of the 2024-B Term Loans and the 2024 Other Term Loans; provided that the requirements set forth in this clause (A) shall not apply to (x) any Maturity Limitation Excluded Amount
and (y) any Ratio Indebtedness consisting of a customary bridge facility, so long as the long-term Indebtedness into which such customary bridge facility is to be converted satisfies the requirements set forth in this clause (A);
(B) Ratio Indebtedness in the form of term facilities shall not mature earlier than the Latest Maturity Date for the
Term Loans and Ratio Indebtedness in the form of revolving facilities shall not mature earlier than the Scheduled 2024-A Maturity Date (other than in a principal amount not to exceed the Maturity Limitation Excluded Amount); provided
that the requirements set forth in this clause (B) shall not apply to any Ratio Indebtedness consisting of a customary bridge facility, so long as the long-term Indebtedness into which such customary bridge facility is to be converted
satisfies the requirements set forth in this clause (B);
(C) to the extent such Indebtedness is secured by any of the Collateral, such Indebtedness shall be subject to a an
applicable Intercreditor Agreement;
(D) subject to Section 1.08(a), no Event of Default shall have occurred and be continuing,
(E) Restricted Subsidiaries that are not Loan Parties may incur Ratio Indebtedness only pursuant to clause (z) above,
and the aggregate outstanding principal amount of Indebtedness outstanding which is incurred pursuant to this clause (xix) by Restricted Subsidiaries that are not Loan Parties shall not exceed, at the time of incurrence thereof and
after giving Pro Forma Effect thereto, the greater of $150,000,000 and 20% of Consolidated EBITDA for the most recently ended Test Period as of such time, and
(F) such Ratio Indebtedness is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligations
(other than customary offers to repurchase upon a change of control, asset sale or casualty event, and not on a greater than pro rata basis with the Loan Document Obligations) prior to either the Latest Maturity Date of the Term Loans
or the Scheduled 2024-A Maturity Date; provided that the requirements set forth in this clause (F) shall not apply to (x) any Ratio Indebtedness incurred under the Maturity Limitation Excluded Amount and (y) any Ratio Indeebtedness
incurred under clause (z) above.
(xx) any Permitted Refinancing of Ratio Indebtedness;
(xxi) Permitted Unsecured Refinancing Debt and any Permitted Refinancing thereof;
(xxii) Permitted First Priority Refinancing Debt and Permitted Second Priority Refinancing Debt, and any Permitted
Refinancing thereof;
(xxiii) (A) Indebtedness (the Indebtedness incurred pursuant to this Section 6.01(a)(xxiii), “Incremental
Equivalent Debt”) of the Borrower or any other Loan Party issued in lieu of Incremental Facilities consisting of secured, subordinated or unsecured bonds, notes, debentures or loans, which, if secured, may be secured either by
Liens having equal priority with the Liens on the Collateral securing the Secured Obligations (but without regard to control of remedies) or by Liens having a junior priority relative to the Liens on the Collateral securing the Secured
Obligations); provided that:
(1) the aggregate principal amount of all such Indebtedness incurred pursuant to this clause shall not exceed at the
time of incurrence the Incremental Cap at such time;
(2) Incremental Equivalent Debt in the form of term facilities shall have a Weighted Average Life to Maturity not
shorter than the remaining Weighted Average Life to Maturity of the 2024-B Term Loans and the 2024 Other Term Loans; provided that the requirements set forth in this clause (2) shall not apply to (x) any Incremental Equivalent
Debt incurred utilizing the Maturity Limitation Excluded Amount and (y) any Incremental Equivalent Debt consisting of a customary bridge facility, so long as the long-term Indebtedness into which such customary bridge facility is to be
converted satisfies the requirements set forth in this clause (2);
(3) Incremental Equivalent Debt in the form of term facilities shall not mature earlier than either the Latest
Maturity Date for the Term Loans or the Scheduled 2024-A Maturity Date and Incremental Equivalent Debt in the form of revolving facilities shall not mature earlier than the Scheduled 2024-A Maturity Date (other than in a principal
amount not to exceed the Maturity Limitation Excluded Amount); provided that the requirements set forth in this clause (3) shall not apply to any Incremental Equivalent Debt consisting of a customary bridge facility, so long as the
long-term Indebtedness into which such customary bridge facility is to be converted satisfies the requirements set forth in this clause (3);
(4) such Incremental Equivalent Debt shall not be guaranteed by any person that does not guarantee the Credit
Facilities (unless such guarantee is added for the benefit of the Lenders) or be secured by any assets that are not Collateral for the Facilities (unless such security is added for the benefit of the Lenders);
(5) to the extent such Indebtedness is secured by any of the Collateral, such Indebtedness shall be subject to an
applicable Intercreditor Agreement;
(6) subject to Section 1.08(a), no Event of Default shall have occurred and be continuing;
(7) such Incremental Equivalent Debt is not subject to mandatory redemption, repurchase, prepayment or sinking fund
obligations (other than customary offers to repurchase upon a change of control, asset sale or casualty event, and not on a greater than pro rata basis with the Loan Document Obligations) prior to either the Latest Maturity Date of the
Term Loans or the Scheduled 2024-A Maturity Date; provided that the requirements set forth in this clause (6) shall not apply to any Incremental Equivalent Debt incurred under the Maturity Limitation Excluded Amount;
(8) The terms, provisions and documentation of the Incremental Equivalent Debt shall either, at the option of the
Borrower, (i) reflect market terms and conditions (taken as a whole) at the time of incurrence of such Indebtedness (as determined by the Borrower in good faith) or (ii) be not materially more favorable (when taken as a whole), as
reasonably determined by the Borrower, to the lenders providing such Incremental Equivalent Debt than the terms and conditions of the 2024-B Term Facility or 2024 Other Revolving Facility, as applicable, except, in each case under this
clause (ii), with respect to (x) covenants and other terms only applicable to periods after the Latest Maturity Date for any Term Loans hereunder or the Scheduled 2024-A Maturity Date, as applicable, or (y) covenants and other terms
reasonably satisfactory to the Administrative Agent; provided that to the extent any covenant or term is (I) added for the benefit of the lenders providing Incremental Equivalent Debt in the form of a term facility, such covenant or
term will be deemed satisfactory to the Administrative Agent to the extent that such term or covenant is also added, or the features of such term or provision are provided, for the benefit of the 2024-B Term Facility or (II) added for
the benefit of the lenders providing Incremental Equivalent Debt in the form of a revolving facility, such covenant or term will be deemed satisfactory to the Administrative Agent to the extent that such term or provision is also added,
or the features of such term or provision are provided, for the benefit of the 2024 Other Revolving Facility; and
(B) any Permitted Refinancing of Incremental Equivalent Debt incurred pursuant to the foregoing subclause (A)
constituting Indebtedness of Holdings or any other Loan Party, which, to the extent refinancing any amount incurred in reliance on any portion of the Incremental Cap that is not calculated in reliance on a ratio, shall utilize such
portion of the Incremental Cap (it being understood that any such Permitted Refinancing in respect of such Indebtedness may also include amounts set forth in clause (a)(i) to the proviso to the definition of Permitted Refinancing).
(xxiv) (i) Indebtedness of the Loan Parties incurred under (a) the Senior Secured 2025 Notes in the principal amount not
to exceed $500,000,000, (b) the Senior Unsecured 2026 Notes in the principal amount not to exceed $615,000,000, (c) the Senior Unsecured 2025 Notes in the principal amount not to exceed $450,000,000 and (d) the Senior Unsecured 2029
Notes in the principal amount not to exceed $1,075,000,000, in each case, and any Permitted Refinancing thereof; (ii) (a) Indebtedness in the form of term loans incurred under the South African Credit Agreement in an aggregate principal
amount not to exceed $115,000,000 (and any Permitted Refinancing thereof) and (b) additional Indebtedness not to exceed $70,000,000 in principal amount under a revolving credit facility pursuant to the South African Credit Agreement
(and any Permitted Refinancing thereof); (iii) Indebtedness not to exceed $100,000,000 incurred under the Emirates Revolver and any Permitted Refinancing thereof and (iv) Indebtedness not to exceed $20,000,000 incurred under the SABB
Credit Facility and any Permitted Refinancing thereof;
(xxv) (A) Indebtedness of any Restricted Subsidiary that is not a Loan Party (x) in an aggregate principal amount
outstanding not to exceed the greater of $175,000,000 and 20.0% of Consolidated EBITDA for the most recently ended Test Period) plus (y) incurred from time to time pursuant to asset based credit facilities or working capital lines of
credit in an aggregate principal amount not to exceed the greater of $125,000,000 and 15.0% of Consolidated EBITDA for the most recently ended Test Period so long as in each case such Indebtedness is not secured by assets constituting
Collateral and the Loan Parties shall not Guarantee such Indebtedness and (B) any Permitted Refinancing of Indebtedness incurred under the foregoing clause (A)(x) or (A)(y), as applicable, which shall not exceed the amounts set forth in
such respective clauses (plus, in the case of this clause (B), an amount equal to the amounts described in clauses (a)(i) and (a)(ii) to the proviso to the definition of Permitted Refinancing);
(xxvi) Contribution Indebtedness (and any Permitted Refinancing thereof);
(xxvii) Permitted Debt Exchange Notes and Permitted Refinancings thereof;
(xxviii) Indebtedness in respect of letters of credit not to exceed the greater of $50,000,000 and 5.0% of Consolidated
EBITDA for the most recently ended Test Period; and
(xxix) all premiums (if any), interest (including post-petition interest), accretion or amortization of original issue
discount, fees, expenses, charges and additional or contingent interest on obligations described in clauses (i) through (xxviii) above.
(b) Holdings will not, nor will it permit any Restricted Subsidiary to, issue any Disqualified Equity Interests, except (x)
Disqualified Equity Interests issued to and held by Holdings or any Restricted Subsidiary that is a direct or indirect wholly-owned subsidiary of Holdings and (y) Disqualified Equity Interests issued after the Closing Date; provided
that in the case of this clause (y) any such issuance of Disqualified Equity Interests shall be deemed to be an incurrence of Indebtedness and subject to the provisions set forth in Section 6.01(a).
Notwithstanding the foregoing or anything to the contrary herein, all Indebtedness incurred under the Loan Documents will be deemed to have been incurred in reliance only on clause (a)(i) of this Section 6.01 and all
Indebtedness in respect of Swap Agreements will be deemed to have been incurred in reliance only on clause (a)(vi) of this Section 6.01.
SECTION 6.02 Liens. Holdings will not, nor
will it permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, except:
(i) Liens created under the Loan Documents, including Liens securing Incremental Facilities;
(ii) Permitted Encumbrances;
(iii) Liens existing on the Closing Date; provided that any Lien securing Indebtedness or other obligations in excess
of $10,000,000 individually shall only be permitted if set forth on Schedule 6.02 or described in the 10-K filed by Holdings on February 23, 2021; and any modifications, replacements, renewals or extensions thereof; provided
that (1) such modified, replacement, renewal or extension Lien does not extend to any additional property other than (a) after-acquired property that is affixed or incorporated into the property covered by such Lien and (b) proceeds and
products thereof, unless such modified, replacement, renewal or extension Lien is otherwise permitted by a separate provision of this Section 6.02, and (2) the obligations secured or benefited by such modified, replacement, renewal or
extension Lien are permitted by Section 6.01;
(iv) Liens securing Indebtedness permitted under Section 6.01(a)(v); provided that (A) such Liens
attach concurrently with or within 270 days after the acquisition, repair, replacement, construction or improvement (as applicable) of the property subject to such Liens, (B) such Liens do not at any time encumber any property other
than the property financed by such Indebtedness, except for accessions to such property and the proceeds and the products thereof, and any lease or sublease of such property (including accessions thereto) and the proceeds and products
thereof and (C) with respect to Capital Lease Obligations, such Liens do not at any time extend to or cover any assets (except for accessions to or proceeds of such assets) other than the assets subject to such Capital Lease
Obligations; provided further that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;
(v) leases, licenses, subleases or sublicenses granted to others (on a non-exclusive basis) that are entered into in
the ordinary course of business or that do not interfere in any material respect with the business of Holdings and the Restricted Subsidiaries, taken as a whole;
(vi) 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;
(vii) Liens (A) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course
of collection and (B) in favor of a banking institution arising as a matter of law encumbering deposits (including the right of setoff) and that are within the general parameters customary in the banking industry;
(viii) Liens (A) on cash advances or escrow deposits in favor of the seller of any property to be acquired in an
Investment permitted pursuant to Section 6.04 to be applied against the purchase price for such Investment or otherwise in connection with any escrow arrangements with respect to any such Investment or any Disposition permitted
under Section 6.05 (including any letter of intent or purchase agreement with respect to such Investment or Disposition) or (B) consisting of an agreement to dispose of any property in a Disposition permitted under Section
6.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(ix) Liens on property and Equity Interests of any Restricted Subsidiary that is not a Loan Party, which Liens secure
Indebtedness of such Restricted Subsidiary that is not a Loan Party, in each case, to the extent such Indebtedness is permitted under Section 6.01(a)(xxv);
(x) (1) Liens granted by a Restricted Subsidiary that is not a Loan Party in favor of any Loan Party, (2) Liens
granted by a Restricted Subsidiary that is not a Loan Party in favor of Restricted Subsidiary that is not a Loan Party and (3) Liens granted by a Loan Party in favor of any Restricted Subsidiary that is not a Loan Party; provided that,
in the case of this clause (3) such Lien is subordinated to the Liens securing the Secured Obligations pursuant to the Fifth Amended and Restated Intercompany Note or otherwise on terms reasonably satisfactory to the Administrative
Agent;
(xi) Liens existing on property at the time of its acquisition or existing on the property of any Person at the time
such Person becomes a Subsidiary, in each case after the date hereof; provided that (A) such Lien was not created in contemplation of such acquisition or such Person becoming a Subsidiary, (B) such Lien does not extend to or
cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property subject to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and
other obligations are permitted hereunder that require or include, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to
which such requirement would not have applied but for such acquisition), and (C) the Indebtedness secured thereby is permitted under Section 6.01(a)(vii);
(xii) any interest or title (and all encumbrances and other matters affecting such interest or title) of a lessor or
sublessor, licensor or sublicensor or secured by a lessor’s or sublessor’s, licensor’s or sublicensor’s interest under leases or subleases (other than leases or subleases constituting Capital Lease Obligations), subleases, licenses,
cross licenses or sublicenses entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business, provided that any interest or title granted under any licenses, cross-licenses, or sublicenses is non-exclusive
and does not materially interfere with the business of Holdings and the Restricted Subsidiaries, taken as a whole;
(xiii) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale or purchase
of goods by Holdings or any Restricted Subsidiary in the ordinary course of business;
(xiv) Liens deemed to exist in connection with Investments in repurchase agreements permitted under clause (e) of the
definition of the term “Cash Equivalents”;
(xv) Liens encumbering reasonable and customary initial deposits and margin deposits and similar Liens attaching to
commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;
(xvi) Liens that are contractual rights of setoff (A) relating to the establishment of depository relations with banks
not given in connection with the incurrence of Indebtedness, (B) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Holdings and the
Restricted Subsidiaries or (C) relating to purchase orders and other agreements entered into with customers of Holdings or any Restricted Subsidiary in the ordinary course of business;
(xvii) ground leases in respect of real property on which facilities owned or leased by the Borrower or any Restricted
Subsidiary are located and any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the
business of Holdings or any Restricted Subsidiary;
(xviii) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(xix) Liens (A) on the Collateral securing Permitted First Priority Refinancing Debt, (B) on the Collateral securing
Permitted Second Priority Refinancing Debt, (C) on the Collateral securing Incremental Equivalent Debt (and permitted to be incurred as secured Indebtedness), (D) on the Collateral securing Permitted Debt Exchange Notes and (E) securing
Ratio Indebtedness (including with respect to Ratio Indebtedness, Liens on assets that do not constitute Collateral); provided if any such Indebtedness is secured by the Collateral on a pari passu basis or junior basis (but
without regard to control of remedies) with Liens securing the Secured Obligations in respect of the Term Loans and 2024 Other Revolving Loans, such Indebtedness shall be subject to an applicable Intercreditor Agreement;
(xx) other Liens (including Liens on assets that do not constitute Collateral); provided that at the time of
incurrence of such Liens and the obligations secured thereby (after giving Pro Forma Effect to any such obligations) the aggregate outstanding face amount of obligations secured by Liens existing in reliance on this clause (xx)
shall not exceed the greater of $150,000,000 and 20.0% of Consolidated EBITDA for the Test Period then last ended;
(xxi) Liens on the Equity Interest of Unrestricted Subsidiaries;
(xxii) Liens on Permitted Receivables Financing Assets or Liens on other assets granted pursuant to Standard
Securitization Undertakings, in each case, incurred in connection with Permitted Receivables Financings;
(xxiii) receipt of progress payments and advances from customers in the ordinary course of business to the extent the
same creates a Lien on the related inventory and proceeds thereof;
(xxiv) (i) Liens on Equity Interests of joint ventures securing capital contributions to, or obligations of, such
Persons, (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and (iii) Liens solely on any cash earnest money deposits made by Holdings or any of its Restricted Subsidiaries in connection
with any letter of intent or purchase agreement permitted hereunder;
(xxv) Liens in respect of Sale Leasebacks in each case on the assets or property sold and leased back in such Sale
Leaseback;
(xxvi) Liens on cash and Cash Equivalents arising in connection with the defeasance, discharge or redemption of
Indebtedness provided that such defeasance, discharge or redemption is permitted hereunder;
(xxvii) Liens on cash or Cash Equivalents securing Swap Agreements in the ordinary course of business submitted for
clearing in accordance with applicable Requirements of Law and that are not entered into for speculative purposes and Liens securing Indebtedness permitted under Section 6.01(a)(vi) and (xiii);
(xxviii) with respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by Requirements of Law;
(xxix) (i) Liens securing the Senior Secured 2025 Notes (or any Permitted Refinancing thereof) in accordance with the
Pari Passu Intercreditor Agreement or such other Market Intercreditor Agreement; (ii) Liens securing the obligations under the South African Credit Agreement (or any Permitted Refinancing thereof) (iii) Liens securing the obligations
under the Emirates Revolver (or any Permitted Refinancing thereof); (iv) Liens securing the obligations under the Emirates Revolving (or any Permitted Refinancing thereof) and (v) Liens securing obligations under the SAAB Credit
Facility (or any Permitted Refinancing thereof).
(xxx) additional Liens securing Indebtedness permitted under Section 6.01 so long as (1) in the case of
Indebtedness secured by a Lien on the Collateral that is pari passu with the Liens securing the Term Loans and 2024 Other Revolving Loans, the First Lien Net Leverage Ratio shall not exceed (I) 3.50:1.00 or (II) at the election of the
Borrower to the extent such Indebtedness is incurred in connection with the financing of a Permitted Acquisition or similar Investment permitted under the Loan Documents, the First Lien Net Leverage Ratio in effect for the most recently
ended Test Period, in each case calculated on a Pro Forma Basis as of the most recently ended Test Period, (2) in the case of Indebtedness that is secured by a Lien on the Collateral that is junior to the Liens securing the Term Loans
and 2024 Other Revolving Loans (without regard to control of remedies), the Secured Net Leverage Ratio shall not exceed (I) 4.50:1.00 or (II) at the election of Holdings to the extent such Indebtedness is incurred in connection with the
financing of a Permitted Acquisition or similar Investment permitted under the Loan Documents, the Secured Net Leverage Ratio in effect for the most recently ended Test Period in each case calculated on a Pro Forma Basis as of the most
recently ended Test Period, (3) in the case of Indebtedness that is secured by a Lien on assets that do not constitute Collateral, either (a) the Total Net Leverage Ratio does not exceed (I) 5.00:1.00 or, (II) at the election of
Holdings to the extent such Indebtedness is incurred in connection with the financing of a Permitted Acquisition or similar Investment permitted under the Loan Documents, the Total Net Leverage Ratio in effect for the most recently
ended Test Period, in each case calculated on a Pro Forma Basis as of the most recently ended Test Period or (b) the Cash Interest Coverage Ratio is not less than (I) 2.00 to 1.00 (or to the extent such Ratio Indebtedness is incurred in
connection with the financing of a Permitted Acquisition or similar Investment permitted under the Loan Documents, 1.75 to 1.00) or (II) at the election of Holdings to the extent such Indebtedness is incurred in connection with the
financing of a Permitted Acquisition or similar Investment permitted under the Loan Documents, the Cash Interest Coverage Ratio in effect for the most recently ended Test Period in each case calculated on a Pro Forma Basis as of the
most recently ended Test Period, and (4) if any such Indebtedness is secured by the Collateral the beneficiaries thereof (or an agent on their behalf) shall have entered into a Market Intercreditor Agreement;
(xxxi) Liens on the Equity Interests of joint venture arrangements securing financing arrangements for the benefit of the
applicable joint venture arrangement that are not otherwise prohibited under this Agreement and Liens on Equity Interests of Unrestricted Subsidiaries;
(xxxii) Liens on cash collateral granted in favor of any Lender created as a result of any requirement or option to cash
collateralize pursuant to this Agreement or any other Loan Document;
(xxxiii) with respect to Australian Loan Parties, Liens arising under Section 12(3) of the Personal Property Securities Act 2009 (Cth) which do not secure payment or performance of an obligation; and
(xxxiv) Liens on cash granted in accordance with the Payoff Letter.
Notwithstanding the foregoing, all Liens incurred under the Loan Documents will be deemed to have been incurred in reliance only on clause (i) of this Section 6.02,
SECTION 6.03 Fundamental Changes. Holdings will not, nor will it permit any Restricted Subsidiary to, merge into or consolidate or amalgamate with any
other Person, or permit any Person to merge into or consolidate with it, or liquidate or dissolve, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or
hereafter acquired) of Holdings and the Restricted Subsidiaries, taken as a whole, to or in favor of any Person, except that:
(a) any Restricted Subsidiary of Holdings (other than the Borrower) may merge, consolidate or amalgamate with (A) the Borrower; provided
that the Borrower shall be the continuing or surviving Person or (B) one or more other Restricted Subsidiaries of Holdings;
(b) Holdings and each Restricted Subsidiary may enter into a Permitted Reorganization;
(c) any Restricted Subsidiary (other than the Borrower or any other Loan Party) may liquidate or dissolve if Holdings determines in
good faith that such action is in the best interests of Holdings and the Restricted Subsidiaries, taken as a whole, and is not materially disadvantageous to the Lenders;
(d) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or
otherwise) to any other Restricted Subsidiary;
(e) Any Holdings may merge, amalgamate or consolidate with any other Person; provided that (A) Holdings shall be the continuing
or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not Holdings (any such Person, the “Successor Holdings”), (1) such Successor Holdings shall be an entity organized or existing
under the laws of the United States, any State thereof or the District of Columbia, Australia or the United Kingdom, (2) such 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 hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party
to such merger, amalgamation or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the
Secured Obligations shall apply to such Successor Holdings’ obligations under this Agreement and the other Loan Documents and (4) Holdings shall have delivered to the Administrative Agent a certificate of a Responsible Officer, stating
that such merger, amalgamation or consolidation complies with this Agreement; provided further that (x) if such Person is not a Loan Party, no Event of Default exists after giving effect to such merger, amalgamation or
consolidation and (y) if the foregoing requirements are satisfied, such Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement and the other Loan Documents; provided further that Holdings agrees to
provide any documentation and other information about such Successor Holdings as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is
required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA Patriot Act and the Beneficial Ownership Regulation;
(f) the Borrower may merge, amalgamate or consolidate with any other Person; provided that (A) the Borrower shall be the
continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized
or existing under the laws of the United States, any State thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to
which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such
merger, amalgamation or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured
Obligations shall apply to the Successor Borrower’s obligations under this Agreement and the other Loan Documents and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer, each stating
that such merger, amalgamation or consolidation complies with this Agreement; provided further that (x) if such Person is not a Loan Party, no Event of Default exists after giving effect to such merger, amalgamation or
consolidation and (y) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided further that the
Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably
determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA Patriot Act;
(g) any Restricted Subsidiary (other than Holdings or the Borrower) may merge, consolidate or amalgamate with any other Person in
order to effect an Investment permitted pursuant to Section 6.04 (other than Section 6.04(u)); provided that the continuing or surviving Person shall be a Restricted Subsidiary, which shall have complied with the
requirements of Section 5.13 and 5.14;
(h) [reserved];
(i) Holdings and its Subsidiaries may undertake or consummate any Tax Restructuring; and
(j) any Restricted Subsidiary (other than Holdings) may effect a merger, dissolution, liquidation consolidation or amalgamation to (1)
effect a Disposition permitted pursuant to Section 6.05 (other than Section 6.05(e)) or (2) an Investment permitted pursuant to Section 6.04 (other than Section 6.04(u)).
SECTION 6.04 Investments, Loans, Advances, Guarantees and Acquisitions. Holdings will not, nor will it permit any Restricted Subsidiary to, make or hold any Investment,
except:
(a) [reserved];
(b) Investments in cash and Cash Equivalents at the time such Investment in Cash Equivalent is made;
(c) loans or advances to present or former officers, directors, managers, members of management, consultants, independent contractors
and employees of Holdings, any Parent Entity and the Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes, (ii) in connection with such
Person’s purchase of Equity Interests in Holdings (or any Parent Entity) (provided that the amount of such loans and advances made in cash to such Person shall be contributed to Holdings or any Restricted Subsidiary in cash as
common equity or Qualified Equity Interests) and (iii) for purposes not described in the foregoing clauses (i) and (ii); provided that at the time of incurrence thereof and after giving Pro Forma Effect thereto,
the aggregate principal amount outstanding in reliance on this clause (iii) shall not exceed $25,000,000;
(d) Investments by Holdings or any Restricted Subsidiary in Holdings or any Restricted Subsidiary;
(e) Investments consisting of deposits, prepayments and/or other credits to suppliers in the ordinary course of business;
(f) Investments consisting of extensions of trade credit in the ordinary course of business;
(g) Investment existing or contemplated on the date hereof and set forth on Schedule 6.04(g) or described in the 10-K filed by
Holdings on February 23, 2021 and any modification, replacement, renewal, reinvestment or extension thereof; provided that the amount of the original Investment is not increased except by the terms of such Investment to the extent set
forth on Schedule 6.04(g) or as otherwise permitted by this Section 6.04;
(h) Investments in Swap Agreements permitted under Section 6.01;
(i) promissory notes and other Investments received in connection with Dispositions permitted by Section 6.05;
(j) Permitted Acquisitions;
(k) obligations with respect to Guarantees provided by Holdings or any Restricted Subsidiary in respect 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 business;
(l) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade
arrangements with customers consistent with past practices;
(m) Investments (including debt obligations and Equity Interests) (i) received in connection with the bankruptcy or reorganization of
suppliers and customers, from financially troubled account debtors or in settlement of delinquent obligations of, or other 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, (ii) in satisfaction of judgments against other Persons, (iii) as a result of a foreclosure by Holdings or any Restricted Subsidiary with respect to any secured Investment or
other transfer of title with respect to any secured Investment in default and (iv) as a result of the settlement, compromise or resolution of (a) litigation, arbitration or other disputes or (b) obligations of trade creditors or
customers that were incurred in the ordinary course of business or consistent with industry practice of the Borrower or any Restricted Subsidiary, including pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of any trade creditor or customer;
(n) loans and advances to any Parent Entity in lieu of, and not in excess of the amount of (after giving effect to any other loans,
advances or Restricted Payments; in respect thereof), Restricted Payments to the extent permitted to be made to such Parent Entity in accordance with Section 6.08(a) (other than clause (ii) thereof); provided that any
such loan or advance shall reduce the amount of such applicable Restricted Payments thereafter permitted under Section 6.08(a) by a corresponding amount; provided further that any conditions to the making of such Restricted
Payment (including the absence of an Event of Default or compliance with a financial ratio) shall be satisfied;
(o) additional Investments and other acquisitions; provided that at the time any such Investment or other acquisition is made,
the aggregate outstanding amount of such Investment or acquisition made in reliance on this clause (o), (including the aggregate outstanding amount of all consideration paid in connection with all other Investments and
acquisitions made in reliance on this clause (o), whether in the form of Indebtedness assumed or otherwise), shall not exceed the sum of (A) the greater of $250,000,000 and 25.0% of Consolidated EBITDA for the most recently
ended Test Period, plus (B) the Available Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of such Investment so long as, with respect to this clause (B), (x) no Event of Default
has occurred and is continuing (or would occur after giving Pro Forma Effect to such action) and (y) where such Investment is funded from the Growth Amount, the Total Net Leverage Ratio, on a Pro Forma Basis, is less than or equal to
4.25:1.00 at the relevant date of determination;
(p) [reserved];
(q) advances of payroll payments to employees in the ordinary course of business;
(r) Investments and other acquisitions to the extent that payment for such Investments is made with Qualified Equity Interests of
Holdings (or any direct or indirect Parent Entity thereof); provided that such amounts used pursuant to this clause (r) shall not increase the Available Amount;
(s) (i) Investments of a Restricted Subsidiary acquired after the Closing Date or of a Person merged or consolidated with Holdings or
any Restricted Subsidiary in accordance with this Section and Section 6.03 after the Closing Date and (ii) Investments of an Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated a
“Restricted Subsidiary”, in each case, to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation or such designation and were in existence on the date of such
acquisition, merger or consolidation or such designation;
(t) [reserved];
(u) Investments consisting of Indebtedness, Liens, fundamental changes, Dispositions and Restricted Payments permitted (other than by
reference to this Section 6.04(u)) under Section 6.01, 6.02, 6.03 (other than clause (g) or (j) thereof), 6.05 (other than clause (e) thereof) and 6.08,
respectively;
(v) additional unlimited Investments; provided that after giving effect to such Investment on a Pro Forma Basis, the Total Net
Leverage Ratio is less than or equal to 4.50:1.00 as of the end of the most recently ended Test Period as of such time;
(w) contributions to a “rabbi” trust for the benefit of employees, directors, consultants, independent contractors or other service
providers of Holdings (or any Parent Entity) or any Restricted Subsidiary or other grantor trust subject to claims of creditors in the case of a bankruptcy of Holdings or the Borrower;
(x) to the extent that they constitute Investments, purchases and acquisitions of inventory, supplies, materials or equipment or
purchases, acquisitions, licenses, sublicenses, leases or subleases of other assets, intellectual property, or other rights, in each case in the ordinary course of business;
(y) Investments in the form of debt or Equity Interests obtained in connection with the contribution, sale, or other transfer of
Permitted Receivables Financing Assets, cash or Cash Equivalents made in connection with a Permitted Receivables Financing (including the contribution or lending of cash and Cash Equivalents to Subsidiaries to finance the purchase of
receivables or related assets from Holdings or Restricted Subsidiaries or to otherwise fund required reserves);
(z) [reserved];
(aa) Investments (x) in joint ventures in an aggregate amount not to exceed the greater of $125,000,000 and 15.0% of Consolidated EBITDA
for the most recently ended Test Period, and (y) in Unrestricted Subsidiaries in an aggregate amount not to exceed the greater of $150,000,000 and 15.0% of Consolidated EBITDA for the most recently ended Test Period;
(bb) [reserved]; and
(cc) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent that the same are permitted to
remain unfunded under applicable Requirements of Law.
Notwithstanding the foregoing, all Investments in the form of loans made to any Loan Party by Holdings or any of its Subsidiaries (or by any holder of Equity Interests in Holdings or
any of its Subsidiaries) shall in each case be subordinated to the Secured Obligations on terms reasonably satisfactory to the Administrative Agent and each party to any such loan shall become a party to an intercreditor agreement
reasonably satisfactory to the Administrative Agent.
SECTION 6.05 Asset Sales. Holdings will not, nor will it (i) permit any Restricted Subsidiary to, sell, transfer, lease, license or otherwise dispose of
any asset, including any Equity Interest owned by it, or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares or nominal shares
issued to foreign nationals to the extent required by applicable Requirements of Law, (B) issuing Equity Interests to Holdings or any Restricted Subsidiary, (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such
Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests and (D) any Equity Interests that are pledged (and remain pledged) by a Loan Party to secure the Secured Obligations
hereunder), in a single transaction or a series of related transactions (each, a “Disposition”), except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and
Dispositions of property no longer used or useful, or economically practicable to maintain, in the conduct of the business of Holdings and the Restricted Subsidiaries (including (i) allowing any registration or application for
registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning,
failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property if the Borrower determines in its reasonable business judgment that such discontinuance is desirable in
the conduct of its business and does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(b) Dispositions of inventory and other assets in the ordinary course of business (including on an intercompany basis);
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar
replacement property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to Holdings or any Restricted Subsidiary;
(e) Dispositions permitted by Section 6.03, Investments permitted by Section 6.04, Restricted Payments permitted by Section
6.08 and Liens permitted by Section 6.02, in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment
was made;
(g) Dispositions of (A) accounts receivable, notes receivable or other current assets in the ordinary course of business or consistent
with industry practice or the conversion of accounts receivable to notes receivable or other dispositions of accounts receivable in connection with the collection or compromise thereof and (B) Permitted Receivables Financing Assets
pursuant to any Permitted Receivables Financing;
(h) leases, subleases, non-exclusive licenses or non-exclusive sublicenses, in each case in the ordinary course of business and that
do not materially interfere with the business of Holdings and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Recovery Events upon receipt of the Net Proceeds of such Recovery Event;
(j) Dispositions of other assets or property (including the sale or issuance of Equity Interests in a Restricted Subsidiary); provided
that (i) such Disposition is made for Fair Market Value, (ii) with respect to any Disposition pursuant to this clause (j) for a sale price in excess of the greater of (x) $35,000,000 and (y) 5.0% of the Consolidated EBITDA for
the then most recently ended Test Period for any transaction or series of related transactions, Holdings or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents; provided,
however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the most recent balance sheet of Holdings provided hereunder or in the footnotes thereto) of Holdings or such Restricted Subsidiary,
other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, (1) that are assumed by the transferee with respect to the applicable Disposition and (2) in respect of which Holdings and
each Restricted Subsidiary is no longer obligated with respect to such liabilities or are indemnified against further liabilities, shall be deemed to be cash, (B) any securities received by Holdings or such Restricted Subsidiary from
such transferee that are converted by Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition,
shall be deemed to be cash, (C) Indebtedness of a Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that Holdings and each other Restricted Subsidiary is released from any
guarantee of such Indebtedness in connection with such Disposition, shall be deemed to be cash, (D) consideration consisting of Indebtedness of the Borrower or any Guarantor that is secured by a Lien that is secured on a pari passu
basis with the Lien securing the Secured Obligations on the asset which is subject of the Disposition, in each case received from Persons who are not Holdings or Restricted Subsidiary that is cancelled, shall be deemed to be cash, and
(E) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration
received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $50,000,000 and (y) 5.0% of Consolidated EBITDA for
the most recently ended Test Period (net of any Designated Non-Cash Consideration converted into cash or Cash Equivalents), 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 and (iii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b);
(k) 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 agreements and similar binding arrangements;
(l) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other
Investment permitted hereunder, which assets are not core or principal to the business of Holdings and the Restricted Subsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted
Acquisition;
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective
Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the
respective insurer of such real property as part of an insurance settlement;
(n) Dispositions of the Equity Interest of Unrestricted Subsidiaries;
(o) Dispositions in connection with any Tax Restructuring provided that after giving effect to any such Disposition, the
Guarantees of the Loans and the security interests of the Lenders in the Collateral, taken as a whole, would not be adversely impaired;
(p) the issuance of any Equity Interests of Holdings;
(q) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic
Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(r) a Permitted Reorganization;
(s) each Loan Party and each of its Restricted Subsidiaries may surrender or waive contractual rights and settle or waive contractual
or litigation claims in the ordinary course of business; and
(t) the unwinding of any Swap Agreement pursuant to its terms.
To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents,
which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to
effect the foregoing.
SECTION 6.06 [Reserved]
SECTION 6.07 Negative Pledge. Holdings will not, and will not permit any Restricted Subsidiary to, enter into any agreement, instrument, deed or lease that
prohibits or limits the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of their respective properties or revenues, whether now owned or hereafter acquired, for the benefit of the Secured Parties
with respect to the Secured Obligations or under the Loan Documents; provided that the foregoing shall not apply to:
(a) restrictions and conditions imposed by (i) Requirements of Law, (ii) any Loan Document or any Swap Agreement (iii) any documentation
relating to any Permitted Receivables Financing, (iv) any documentation governing (A) Indebtedness incurred pursuant to Section 6.01(a)(v), Section 6.01(a)(vii), Section 6.01(a)(xiv), Section 6.01(a)(xix),
Section 6.01(a)(xxiii), Section 6.01(a)(xxiv), or Section 6.01(a)(xxv), (B) Indebtedness otherwise permitted to be incurred by Section 6.01 solely by a Restricted Subsidiary that is not a Loan Party and/or (C)
Indebtedness permitted to be incurred by Section 6.01 on a secured basis that is secured by assets that constitute Excluded Assets and/or (v) any documentation governing any Permitted Refinancing incurred to refinance any such
Indebtedness referenced in clauses (iii) and (iv) above;
(b) customary restrictions and conditions existing on the Closing Date after giving effect to the Closing Date Refinancing and any
extension, renewal, amendment, modification or replacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition;
(c) any security interest or right of set-off in favor of Dutch banks arising from their general banking conditions (algemene bankvoorwaarden);
(d) customary provisions in leases, subleases, licenses, cross-licenses or sublicenses and other contracts restricting the assignment
thereof and restrictions that include customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(e) any other agreement or instrument governing any Indebtedness or Disqualified Stock permitted to be incurred or issued pursuant to Section
6.01 entered into after the Closing Date that contains encumbrances and restrictions that either (i) are no more restrictive in any material respect, taken as a whole, with respect to the Borrower or any Restricted Subsidiary than
(A) the restrictions contained in the Loan Documents as of the Closing Date or (B) those encumbrances and other restrictions that are in effect on the Closing Date with respect to the Borrower or that Restricted Subsidiary pursuant to
agreements in effect on the Closing Date, (ii) are not materially more disadvantageous, taken as a whole, to the Lenders than is customary in comparable financings for similarly situated issuers or (iii) will not materially impair the
Borrower’s ability to make payments on the Secured Obligations when due, in each case in the good faith judgment of the Borrower;
(f) any restrictions or conditions set forth in any agreement in effect at any time any Person becomes a Subsidiary (but not any
modification or amendment expanding the scope of any such restriction or condition); provided that such agreement was not entered into in contemplation of such Person becoming a Subsidiary;
(g) contracts or agreements for the sale or disposition of assets, including any restrictions with respect to a Subsidiary of Holdings
pursuant to an agreement that has been entered into for the sale or disposition of any of the Equity Interests or assets of such Subsidiary;
(h) restrictions on cash (or Cash Equivalents) or other deposits imposed by agreements entered into in the ordinary course of business
(or other restrictions on cash or deposits constituting Permitted Encumbrances);
(i) restrictions set forth on Schedule 6.07 and any extension, renewal, amendment, modification or replacement thereof, except
to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition; and
(j) customary provisions in partnership agreements, limited liability company organizational governance documents, sale leaseback
agreements, joint venture agreements and other similar agreements, in each case, entered into in the ordinary course of business.
SECTION 6.08 Restricted Payments; Certain Payments of Indebtedness.
(a) Holdings will not, nor will it permit any Restricted Subsidiary to, pay or make, directly or indirectly, any Restricted Payment,
except:
(i) each Restricted Subsidiary may make Restricted Payments to Holdings or any Restricted Subsidiary (and, in the
case of any such Subsidiary that is not a wholly-owned Subsidiary, to each other owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests of the relevant class of Equity Interests);
(ii) [Reserved];
(iii) [Reserved];
(iv) [Reserved]
(v) repurchases of Equity Interests in Holdings or any Parent Entity (or make Restricted Payments to allow
repurchases of Equity Interest in Holdings any Parent Entity) deemed to occur upon exercise of stock options or warrants or other incentive interests if such Equity Interests represent a portion of the exercise price of such stock
options or warrants or other incentive interests;
(vi) Holdings may redeem, acquire, retire or repurchase its Equity Interests (or any options, warrants, restricted
stock, stock appreciation rights or other equity-linked interests issued with respect to any of such Equity Interests) or make Restricted Payments to allow any of its Parent Entities to so redeem, retire, acquire or repurchase their
Equity Interests (or any options, warrants, restricted stock, stock appreciation rights or other equity-linked interests issued with respect to any of such Equity Interests), in each case, held by current or former officers, managers,
consultants, directors, employees, independent contractors or other service providers (or their respective spouses, former spouses, domestic partners, successors, executors, administrators, heirs, legatees or distributees) of Holdings
or any Parent Entity thereof and the Restricted Subsidiaries, upon the death, disability, retirement or termination of employment or service of, or breach of restrictive covenants by, any such Person or otherwise in accordance with any
stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, stock subscription or equity incentive award agreement, employment termination
agreement or any other employment agreements or equity holders’ agreement; provided that, the aggregate amount of Restricted Payments permitted by this clause (vi) after the Closing Date shall not exceed $40,000,000 in
any fiscal year with unused amounts in any fiscal year being carried over to succeeding fiscal years plus all net cash proceeds obtained from any key-man life insurance policies received during such fiscal year (without giving
effect to the foregoing proviso);
(vii) Holdings may make Restricted Payments in cash to any Parent Entity:
